JACOB R. MYERS, APPELLANT,
v.
FLORIDA CIVIL COMMITMENT CENTER; DEPARTMENT OF CORRECTIONS; DESOTO COUNTY SHERIFF'S OFFICE; LIBERTY BEHAVIORAL HEALTH CORPORATION; AND DEPARTMENT OF CHILDREN AND FAMILIES, APPELLEES
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The court reversed and remanded a premature summary dismissal of a challenge to a Department of Children and Families policy, finding the ALJ failed to consider whether the policy constituted an unadopted de facto agency rule under Florida's Administrative Procedure Act.
When an ALJ grants a summary final order before a party's time to respond has lapsed, the dismissal is premature and must be reversed if the party presents a prima facie challenge that a policy is a non-rule agency rule.
[1] An administrative law judge's grant of a summary final order before a party's time to respond has lapsed violates the Administrative Procedure Act and requires reversal w…
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Join FLexlaw to unlock all legal intelligence“All parties shall have an opportunity to respond, to present evidence, and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence, to submit proposed findings of facts and orders.”
Statutory requirement under § 120.57(l)(b), Fla. Stat. (2005) violated by premature summary dismissal
Jacob Myers challenged Florida Civil Commitment Center policy F-24 as a non-rule policy of the Department of Children and Families. The ALJ granted re…
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PER CURIAM.
Jacob Myers challenges Florida Civil Commitment Center (“FCCC”) policy F-24 as a non-rule policy of the Department of Children and Families. The Administrative Law Judge (“ALJ”) granted respondents’ motion for summary final order before Myers’ time to respond to the motion had lapsed. See § 120.57(l)(b), Fla. Stat. (2005) (“All parties shall have an opportunity to respond, to present evidence, and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence, to submit proposed findings of facts and orders.... ”).
As a result of the premature dismissal, the ALJ failed to consider Myers’ argument that policy F-24 is a de facto agency rule that has not been adopted under the proper rulemaking procedures of section 120.54(l)(a).
See § 120.56(4), Fla. Stat. (2005).
Because Myers presented a prima facie challenge alleging policy F-24 to be a non-rule policy, pursuant to section 120.56(4), Florida Statutes, we reverse and remand for further proceedings on Myers’ petition. We do, however, affirm the ALJ’s dismissal of all respondents other than the Department of Children and Families. See Dep’t of Corrs. v. Adams, 458 So. 2d 354, 356 (Fla. 1st DCA 1984) (explaining that individual facilities acting under agency guidance are not themselves “agencies” for purposes of the Administrative Procedure Act); see also § 394.930, Fla. Stat. (2005) (granting the Department of Children and Families sole authority to adopt rules to give effect to the provisions of the Jimmy Ryce Act).
AFFIRMED in part; REVERSED and REMANDED in part.
ALLEN, KAHN, and DAVIS, JJ., concur.