Constitutional Rulemaking: What Happens When the APA Doesn’t Apply?
Recent changes to the Florida Constitution, in conjunction with a 2009 change to Florida’s Administrative Procedure Act (APA), have raised the question of whether agencies given constitutional directives to engage in rulemaking can make rules outside the authority of the APA, and if so, what procedures might be available to parties wishing to challenge such rules.
The Florida Constitution provides authority for several entities to engage in rulemaking, though recently the constitutional amendment dealing with medical marijuana provided that the Department of Health (DOH) “shall issue” particular rules, using language that might represent an unprecedented level of agency authority in the Florida Constitution. Ordinarily when an agency makes rules, the APA puts forth detailed requirements for rulemaking1 and an administrative procedure for challenging both proposed rules and existing agency rules.2 However, in 2009, the APA was amended to state that the APA applies only when an agency acts pursuant to powers “other than those derived from the constitution.”3 If DOH “shall issue” regulations pursuant to powers DOH derives from the constitution, the APA arguably would not apply to those regulations.4
The medical marijuana amendment may represent the first time a legislatively-created agency was granted explicit rulemaking authority in the constitution without requiring any action by the legislature. While there may be more than one reasonable interpretation of the language of the medical marijuana constitutional amendment, DOH has interpreted the constitution such that it derives significant authority to make rules from the constitution, and DOH has promulgated rules based on this interpretation.
For the first time, then, there is a significant question regarding what procedures apply regarding an agency’s rules promulgated solely under the agency’s constitutional authority, rather than under statutory authority. DOH has promulgated its own rules for making rules outside the APA, and has promulgated rules pursuant to its own standards.
Ordinarily, rule challenges are brought before the Division of Administrative Hearings (DOAH). DOAH is also a creature of statute, and if the agency action challenged does not fall within the statutory definition of “agency” action under the APA, DOAH presumably lacks jurisdiction to hear such a challenge.5 If DOH acts solely pursuant to powers it “derived from the constitution” it appears not to fall within the definition of “agency” regarding those acts. Because the Department of Health has promulgated rules that may have been based only on the Department of Health’s constitutional authority, several questions have been raised at the Division of Administrative Hearings, including whether DOAH has jurisdiction to hear a challenge to DOH’s rules.
While the questions surrounding DOH’s rulemaking authority are interesting, they raise a host of other questions that may arise in a variety of contexts if an agency or entity other than DOH makes rules pursuant to constitutional authority. After all, DOH is not the only entity with constitutional rulemaking authority.6 This article explores the question of whether an agency can make rules outside the APA, and if so, what procedural avenues are available to challenge an agency’s rulemaking based on constitutional authority, using DOH’s newfound constitutional authority as an example.
Amendment 2 Gave the Department of Health Significant Rulemaking Authority
After failing to pass a medical marijuana amendment in 2014, Florida voters approved Amendment 2 in 2016, which was intended to expand access to medical marijuana beyond the framework created by the Florida Legislature.7 Amendment 2 became Fla. Const. art. X, §29 (2017), which provides that the Department of Health8 “shall issue reasonable regulations necessary for the implementation and enforcement” of the amendment.9 Specifically, DOH was provided six months from the date the amendment became effective10 to create certain enumerated regulations.11 The deadline to create certain rules to implement the medical marijuana amendment was July 3, 2017.
Among the rules DOH “shall issue” under Amendment 2 are procedures for the registration of new medical marijuana dispensaries, referred to in the constitution as Medical Marijuana Treatment Centers (MMTCs).12 DOH is required to promulgate rules “that include procedures for the issuance, renewal, suspension and revocation of registration, and standards to ensure proper security, record keeping, testing, labeling, inspection, and safety” of MMTCs.13 The stakes for these regulations are high; competition for licenses is intense; and there are a lot of moving parts regarding the issuance of new licenses. When the legislature allowed registration of dispensaries under much more limited circumstances, the applications were, in many cases, well over 1,000 pages.14 Now that the number of medical conditions that qualify to receive medical marijuana is expanded, demand for and competition over these licenses is even more intense.
Against this backdrop, in May 2017, DOH published, and has since adopted, its own rules for adopting rules outside the APA’s procedures,15 which the department refers to as its constitutional regulation procedure.16 DOH’s published notice cites only the Florida Constitution as the authority for adopting a regulation development procedure.17 In the background section of this notice, DOH states that “[r]egulations promulgated pursuant to constitutional authority are not subject to Chapter 120, Florida Statutes.”18
The procedures DOH promulgated in its regulation development procedure are not as stringent or detailed as the APA, but this regulation development procedure pulls some language from the APA. For instance, under DOH’s procedure, an “emergency regulation may be adopted if there is an immediate danger to the public health, safety, or welfare under a procedure which is fair under the circumstances.”19 This is similar to the language used in the APA for creating emergency rules, but does not require that the “procedure provides at least the procedural protection given by other statutes, the State Constitution, or the United States Constitution.”20 Similarly, the notice period required in DOH’s regulation development procedure is only 15 days, not the 28-day notice period in the APA.21
Since DOH published its regulation development procedure, it has adopted both emergency rules and nonemergency rules using its promulgated procedure.22 DOH published proposed rules on June 16, 2017, concerning existing medical marijuana dispensaries and adopting certain definitions, which became effective July 3, 2017.23 As rulemaking authority, DOH again cited only its constitutional authority, not a statute.24 After DOH published proposed rules under its regulation development procedure, but before those rules became effective, the legislature passed Senate bills 6-A and 8-A regarding medical marijuana, which were approved by the governor on June 23, 2017.25 In September, DOH published emergency regulations pursuant to its constitutional authority, which defined certain terms and established certain requirements to apply for a new license.26
Thus, without citing to any authority granted DOH by the legislature, DOH has adopted its own procedure for adopting rules, and has promulgated rules under those procedures. This represents a significant shift from the paradigm that the legislature creates administrative agencies and grants them the powers they may exercise.27
How Can An Executive Agency Make Rules Without Legislative Authority?
The first question that may spring to mind is whether a legislatively created agency in the executive branch, like DOH, can act without legislative authority. After all, the Florida Constitution provides for separation of powers between three co-equal branches. “The powers of the state government shall be divided into legislative, executive, and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”28 Consequently, while making rules with the authority of law may be in the sole authority of the legislative branch, an executive agency can engage in rulemaking (even without the delegation of authority by the legislature) if the constitution expressly provides as much.
While DOH has interpreted its constitutional authority to allow DOH to promulgate rules without legislative action, it’s not clear this is the case. The two closest parallels in Florida history are the Commission on Ethics and the Fish and Wildlife Conservation Commission, though neither example is instructive. The Commission on Ethics was created by statute, and then empowered by the state’s first constitutional amendment by ballot initiative.29 The ballot initiative in no way explicitly authorized particular rulemaking.30 Similarly, the constitutional provision empowering the Fish and Wildlife Commission contained a general grant of power, as opposed to a specific rulemaking directive.31 The Fish and Wildlife Conservation Commission’s authorizing statute was passed before the constitutional amendment, but the Supreme Court found that the statute and amendment were consistent, and treated the existing statute as implementing the constitution.32 Neither example addresses a legislatively-created agency like DOH being given authority in the constitution to make rules.
So far, DOH has adopted rules pursuant to its constitutional authority in ways that were (at least arguably) substantively consistent with legislative action, such as when the legislature was silent, or to adopt definitions passed by the legislature but not yet effective. But this raises the question of what might happen if an agency like DOH were to act pursuant to its constitutional authority in a way that was contrary to a legislative action. For instance, the legislature interpreted Amendment 2 to allow a limitation on the smoking of medical marijuana.33 If DOH interpreted the constitution to prohibit such a limitation, and promulgated rules allowing for smoking of medical marijuana, it may not be immediately clear which rule would have the force of law. At least, this appears to be uncharted territory and the courts would need to interpret the limits of DOH’s authority to promulgate rules pursuant to the constitution.
It may be that the Florida Supreme Court would disagree that the constitution authorizes DOH to promulgate rules without legislative action. When the Florida Supreme Court, by advisory opinion, approved the ballot initiative to include Amendment 2 on the 2016 ballot, the justices found that the rule would not substantially alter the function of DOH. Further, the justices opined in their advisory opinion that “the Department of Health would not be empowered under this proposed amendment to make the types of primary policy decisions that are prohibited under the doctrine of non-delegation of legislative power.”34
Of course, the justices did not conduct a thorough analysis of the proposed amendment. In advisory opinion cases like this, the justices are only asked whether the ballot initiative would satisfy the Florida Constitution’s single-subject requirement for constitutional referenda,35 which is a very narrow inquiry. Even so, the Supreme Court is unlikely to revisit this question. The court has explained its treatment of advisory opinions this way, “although our advisory opinions are not strictly binding precedent in the most technical sense, only under extraordinary circumstances will we revisit an issue decided in our earlier advisory opinions.”36 The court did not address the question of what procedures would apply to DOH’s rulemaking under the constitution, and it is not clear if DOH promulgating rules under its regulation development procedure qualifies as an extraordinary circumstance.
Because of the novelty of DOH’s situation, it is not clear what procedures apply to challenge DOH’s acts taken pursuant to constitutional rulemaking authority. Agency procedures are governed by the Administrative Procedure Act (APA), F.S. Ch. 120. The APA governs an entity, like DOH, “only if included in the definition of ‘agency’ in [§]120.52(1).”37 Before 2009, the APA’s definition of “agency” included a variety of other definitions, including “[t]he [g]overnor in the exercise of all executive powers other than those derived from the constitution.”38 However, in 2009, the legislature expanded this constitutional carve-out to include a whole host of offices, entities, and officers “if acting pursuant to powers other than those derived from the constitution.”39 This naturally raises the question of what procedures apply to rulemaking when an entity we think of as an agency is granted explicit rulemaking authority in the Florida Constitution.
The First District Court of Appeal has addressed a similar situation, and opined that a constitutionally created entity, the state university system’s board of governors, was not subject to the APA. The court opined that because the “[b]oard of [g]overnors’ constitutional authority to promulgate the challenged rules is not dependent on any delegation from the Florida Legislature, those rules cannot be challenged under the Administrative Procedure Act.”40 It is not clear that this would also be true of a legislatively created entity, like DOH, acting pursuant to a grant of authority in the constitution.
A Question Recently Raised in Proceedings at DOAH
The question of whether the APA applies to DOH’s constitutional rulemaking authority was raised in administrative proceedings by Administrative Law Judge Van Laningham.41 The ALJ opined that Amendment 2 appears to be self-executing, and therefore, “it is quite possible that regulations issued by the [d]epartment for the implementation and enforcement of [§]29 [Fla. Const.], including those establishing procedures for licensing MMTCs, will not be subject to administrative challenge under the APA.”42 The ALJ went on to say “it is even possible that DOH has the constitutional power to issue regulations that trump inconsistent statutes within the scope of DOH’s regulation-making authority, although that issue will not be ripe for judicial resolution unless and until DOH issues a regulation that conflicts with a statute, or the [l]egislature enacts a statute that conflicts with a DOH regulation.”43
While DOH’s constitutional regulation development procedure has not apparently been challenged, there has been a challenge to rules arguably promulgated pursuant to that procedure.44 However, DOH simultaneously promulgated the same rule under its own regulation development procedure and under the APA. Thus, the same ALJ, Judge Van Laningham ordered the parties to show cause whether the relevant rules were made under DOH’s constitutional authority, and DOAH would have no authority, or whether the rule was made pursuant to the APA, and DOAH could hear the challenge.45 That case settled without the question being answered.46
If Not the APA, What?
If the APA does not apply to challenge rules made under constitutional authority, administrative attorneys would no longer be able to swing the familiar hammer of a DOAH hearing, but there is a whole toolbox full of procedural options that may be available. Beyond the obvious declaratory judgment or injunctive action, special writs may be a useful means to bring a challenge anywhere from circuit court to the Florida Supreme Court in its original jurisdiction.47 Probably the most appropriate extraordinary writ for testing whether an agency has exceeded their authority by making rules pursuant to the constitution, rather than a statute, is the writ quo warranto. “The term ‘quo warranto’ means ‘by what authority,’ and the writ is the proper means for inquiring into whether a particular individual has improperly exercised a power or right derived from the [s]tate.”48 Recent challenges to DOH’s actions (or rather inaction) have taken the form of the writ of mandamus, suit for injunctive relief, and for declaratory relief.49 Time will tell what remedy will be the most strategically viable under the circumstances.
1 See Fla. Stat.§§120.54, 120.541.
2 See Fla. Stat. §120.56.
3 See Fla. Stat. §120.52 (2017).
4 The APA only applies to entity actions if that entity falls within the APA’s statutory definition of an “agency.” See, e.g., Booker Creek Pres., Inc. v. Pinellas Planning Council, 433 So. 2d 1306, 1307-08 (Fla. 2d DCA 1983); see also Young v. Dep’t of Cmty. Affairs, 625 So. 2d 831, 837 (Fla. 1993) (quoting Booker Creek).
6 The Florida Commission on Ethics, and the Fish and Wildlife Conservation Commission are both granted authority in their respective constitutional sections to prescribe rules and procedures. See Fla. Const. art. II, §§8(f), (i)(1)b; Fla. Const. art. IV, §9. The Agency for Workforce Innovation is tasked with periodically calculating a minimum wage, and has constitutional authority to adopt any necessary implementing regulations. Fla. Const. art X, §24(f). The Florida Constitutional Revision Commission is expressly granted authority to adopt its own rules of procedure. See Fla. Const. art. XI, §2(c). Likewise the Constitutional Convention, and Taxation and Budget Reform Commission have similar authority. See Fla. Const. art. XI, §§4(b), 6(c). The State Board of Education is authorized to make and enforce certain rules “and no legislation shall be required.” Fla. Const. art. XII, §9(d)(10). While it doesn’t have express authority to make rules, the university system’s board of governors has the authority to “operate, regulate, control, and be fully responsible for the management of the whole university system.” Fla. Const. art. IX, §7(d). Thus, in varying degrees, several entities have express authority in the Florida Constitution to make rules.
7 Alex Harris & Joey Flechas, Amendment 2 Is Law. But Most Floridians Still Have To Wait To Get Medical Marijuana, Miami Herald, Jan. 3, 2017, available at http://www.miamiherald.com/news/state/florida/article124393619.html.
8 “‘Department’ means the Department of Health or its successor agency.” Fla. Const. art. X, §29(b)(2).
9 Fla. Const. art. X, §29(d).
10 Amendment 2 became effective January 3, 2017, “the first Tuesday after the first Monday in January following the election.” Fla. Const. art. XI, §5(e).
11 The Department of Health was required to issued regulations, the purpose of which is to “ensure the availability and safe use of medical marijuana by qualifying patients.” Fla. Const. art. X, §29(d). Specifically, regulations which “shall be promulgated no later than six (6) months after the effective date” of the amendment were 1) procedures for the issuance and annual renewal of qualifying patient identification cards; 2) establishing qualifications and standards for caregivers; 3) procedures for registration of dispensaries (called medical marijuana treatment centers); 4) a regulation that defines the amount of marijuana that constitutes an adequate supply of medical marijuana. Fla. Const. art. X, §29(d)(1)a-d.
12 Fla. Const. art. X, §29(d)(1)c.
14 Florida Health, Office of Medical Marijuana Use, Dispensing Application Process, http://www.floridahealth.gov/programs-and-services/office-of-medical-marijuana-use/medical-marijuana-treatment-centers/dispensing-application-process/index.html.
15 See Florida Administrative Register Vol. 43 No. 102, 2419-21 (May 25, 2017).
16 Florida Health, Office of Medical Marijuana Use, Rules and Regulations.
18 Florida Administrative Register Vol. 43 No. 102, 2420 (May 25, 2017).
20 Fla. Stat. §120.54(4).
21 Compare Florida Administrative Register Vol. 43 No. 102, 2420 (May 25, 2017) with Fla. Stat. §120.54(3)(a)2.
22 Florida Health, Office of Medical Marijuana Use, Rules and Regulations.
23 Note that these rules became effective on the July 3, 2017, six-month deadline. See Florida Health, Office of Medical Marijuana Use, Rules and Regulations,
24 See id.
25 The Florida Senate, S.B. 8-A: Medical Use of Marijuana, available at https://www.flsenate.gov/Session/Bill/2017A/00008A.
26 Florida Administrative Register Vol. 43, No. 182, 4065 (Sept. 20, 2017).
27 The Florida Bar, Florida Administrative Practice §1.13, Ultra Vires Administrative Action (10th ed. 2015) (quoting Grove Isle, Ltd. v. State Dept. of Environmental Regulation, 454 So. 2d 571 (Fla. 1st DCA 1984)).
28 Fla. Const. art. II, §3 (emphasis added).
29 See State, Comm’n on Ethics v. Sullivan, 449 So. 2d 315, 316-17 (Fla. 1st DCA 1984) (holding that the Florida Constitution does not grant the commission authority to adopt rules “regulating its procedures” independent of Ch. 120 and that the commission is subject to the procedural requirements of Fla. Stat. Ch. 120).
30 See Fla. Const. art. II, §8.
31 “The commission shall establish procedures to ensure adequate due process in the exercise of its regulatory and executive functions.” Fla. Const. art. IV, §9.
32 See Bronson v. State, 83 So. 2d 849, 850 (Fla. 1955).
33 See Fla. Stat. §381.986(1)(j)2 (2017).
34 In re Advisory Opinion to Atty. Gen. re Use of Marijuana for Debilitating Med. Conditions, 181 So. 3d 471, 478 (Fla. 2015) (citing Askew v. Cross Key Waterways, 372 So. 2d 913 (Fla. 1978)); see also In re Advisory Opinion to Atty. Gen. re Use of Marijuana for Certain Med. Conditions, 132 So. 3d 786, 797 (Fla. 2014) (making the same statement regarding essentially the same amendment in 2014).
35 See Fla. Const. art. XI, §3.
36 Barley v. S. Florida Water Mgmt. Dist., 823 So. 2d 73, 82 (Fla. 2002) (emphasis in original).
37 Booker Creek Pres., Inc. v. Pinellas Planning Council, 433 So. 2d 1306, 1307-08 (Fla. 2d DCA 1983); see also Young v. Dep’t of Cmty. Affairs, 625 So. 2d 831, 837 (Fla. 1993) (quoting Booker Creek).
38 Fla. Stat. §120.52(1) (2008).
39 Fla. Stat. §120.52(1) (2017).
40 NAACP, Inc. v. Florida Bd. of Regents, 876 So. 2d 636, 640 (Fla. 1st DCA 2004).
41 Recommended order at 67-68, Plants of Ruskin, Inc. v. Department of Health, DOAH Case No. 17-0116 (May 23, 2017).
42 Id. at ¶113 (internal citation omitted).
43 Id. citing Florida Carry, Inc. v. Univ. of N. Fla., 133 So. 3d 966, 979-80 (Fla. 1st DCA 2013).
44 See order to show cause, Keith St. Germain Nursery Farms v. Department of Health, DOAH Case No. 17-5011RU (Oct. 9, 2017) (ordering parties to show cause why DOAH had jurisdiction).
46 See order severing cases and closing files, Keith St. Germain Nursery Farms v. Department of Health, DOAH Case No. 17-5011RU (Oct. 31, 2017); notice of settlement, Keith St. Germain Nursery Farms v. Department of Health, DOAH Case No. 17-5011RU (Oct. 30, 2017).
47 The Supreme Court has jurisdiction to issue 1) all writs necessary to exercise its jurisdiction; 2) writs of prohibition to courts; 3) writs of mandamus to state officers and state agencies; and 4) writs quo warranto to state officers and state agencies. See 12A Fla. Jur 2d Courts and Judges §§42; Fla. Const. art. V, §3(b)(7-8). The Rules of Appellate Procedure allow the writ quo warranto to be filed as an original proceeding in the Supreme Court under, Fla. R. App. P. 9.030(a)(3), in the First District Court of Appeal under, Fla. R. App. P. 9.030(b)(3), Leon County Circuit Court, under Fla. R. App. P. 9.030(c)(3). Original proceedings, including the writ, are governed by Fla. R. App. P. 9.100. County courts have no jurisdiction to issue writs. Frances H. Toomey, Kristin A. Norse, Overview Of Extraordinary Writs, Florida Appellate Practice (9th ed. 2014); Fla. Const. art. V, §6.
48 Whiley v. Scott, 79 So. 3d 702, 707 (Fla. 2011).
49 See complaint, Bill’s Nursery, Inc. v. Department of Health, Case No. 2017 CA 002411 (Fla. 2d Cir. Ct., Nov. 21, 2017).
Jonathan Hayes is an associate with the firm of Ausley McMullen in Tallahassee, and practices in the areas of litigation, constitutional law, corporate law, and government procurement and bid protests. Prior to joining the firm, he clerked for Judge Robert L. Hinkle of the Northern District of Florida.
This column is submitted on behalf of the Administrative Law Section, Robert H. Hosay, chair, and Stephen Emmanuel, editor.