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Jenkins v. State10/13/2003
ree . . . that these changes are insubstantial and do not affect the reliability of the tests.... Thus, we conclude. . . that the entire administrative scheme sufficiently ensures the reliability of results even though it does not set forth specific standards with reference to monthly and annual inspections. Thus, we hold that the trial court erred in suppressing the breath test results in the instant case.
Id. at 491. Here, as stated above, Tom Wood testified that there were very minor differences between the COA form used before 1999 and the COA form adopted by rule, effective July 7, 1999. Most importantly, Tom Wood testified that both the Guth-supplied ARS and that supplied after July 7, 1999, were scientifically reliable. There was no evidence refuting this testimony.
The proper remedy for violation of the APA in failing to properly promulgate the COA form is prohibiting an agency from relying on that unpromulgated rule or forcing the agency to go through the rule-making process. See,§120.56(4)(e), Florida Statutes; Exclusive Inv. Mgmt. & Consultants, Inc. v. Agency for Health Care Admin., 699 So. 2d 311, 313 (Fla. 1st DCA 1997) (allowing AHCA to properly explicate its non-rule policy); cf. Fed'n of Mobile Home Owners of Fla., Inc. v. Fla. Manufactured Hous. Ass'n, Inc., 683 So. 2d 586, 593 (Fla. 1st DCA 1996) (invalidating repeal of rule, finding repeal was a "rule" requiring formal rulemaking procedure, agency failed to prove that rulemaking was impractical, and there was "no credible evidence" of a good faith attempt to expeditiously use the rulemaking procedure to address these policies). Section 120.56(4)(e), states that an agency "shall be permitted to rely upon" an unpromulgated rule, such as the COA form, if it is substantially similar to a subsequent similar rule promulgated under section 120.57(1)(e).
In Osceola Fish Farmers Ass'n, Inc. v. Division of Administrative Hearings, 830 So. 2d 932 (Fla. 4th DCA 2002), the court ruled that section 120.56(4)(e) rendered moot a challenge to a policy it claimed was an unpromulgated rule. There, a fish farmers' association sought an administrative determination that the Fish and Wildlife Conservation Commission's statement on lake water level management (similar to the COA form in this case) was an unadopted rule. The court affirmed the ALJ's ruling that the agency could rely on the statement because prior to the entry of the final order in the administrative proceedings the agency published a proposed rule addressing the statement and proceeded expeditiously and in good faith to adopt the rule:
he issue is whether an administrative agency can avoid an adverse ruling in a section 120.56(4) proceeding and the consequences of an award of attorney's fees and costs to the petitioner under section 120.595(4) if, prior to entry of a final order, the agency publishes a proposed rule addressing the statement and proceeds expeditiously and in good faith to adopt the rule. . . .
t becomes clear that the purpose of a section 120.56(4) proceeding is to force or require agencies into the rule adoption process. It provides them with incentives to promulgate rules through the formal rulemaking process. . . .
he plain language of section 120.56(4)(e) allows the agency to avoid an adverse ruling in a section 120.56(4) proceeding (and presumably attorney's fees and costs) if, prior to entry of a final order in the case, the agency initiates the rulemaking process and proceeds expeditiously to rule adoption.
Id. at 934-935(citations and footnote omitted).
Although section 120.56(4) generally applies to adminis
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