Hill v. School Bd. of Leon County
| Decision Date | 28 October 1977 |
| Docket Number | HH-222,Nos. HH-223,s. HH-223 |
| Citation | 351 So.2d 732 |
| Parties | Oliver HILL et al., Appellants, v. SCHOOL BOARD OF LEON COUNTY, Appellee. Oliver HILL et al., Petitioners, v. SCHOOL BOARD OF LEON COUNTY, Respondent. |
| Court | Florida District Court of Appeals |
Jack L. McLean, Jr. of Legal Services of North Florida, Inc. and Robert Williams of Florida Legal Services, Inc., Tallahassee, for appellants-petitioners.
C. Graham Carothers and Michael Pearce Dodson of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee-respondent.
The petition for review asserts that the School Board engaged in illicit rulemaking, without complying with Section 120.54, by discontinuing its prior practice of affording county-paid transportation on dangerous routes to school children whose transportation costs are not payable from state funds because their homes are within two miles from school. See Section 234.01, Florida Statutes (1975) and Fla.Admin. Code R. 6A-3.01(3) of the State Board of Education. While county school transportation policy may be a proper one for rulemaking, as may policy concerning the availability of hot breakfasts and the distribution and care of school books, not every statement by the Board on those subjects is a rule for which Section 120.54 procedures are required. The Board's announcement that an optional service previously provided will be discounted is not necessarily a rule because it is not a statement "which (is) intended by (its) own effect to create rights or to require compliance, or otherwise to have the direct and consistent effect of law." McDonald v. Dep't of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977).
We recognized in McDonald that APA rulemaking requirements are and must be to some extent self-enforcing. Affected agencies will be pressed toward rulemaking by the necessity otherwise to explicate and defend policy repeatedly in Section 120.57 proceedings for agency action affecting the substantial interests of parties. Inasmuch as requiring rulemaking will not automatically provide the transportation petitioners seek, even during the rulemaking proceeding itself, our duty in doubtful cases is to withhold judicial imperatives and leave affected parties to initiate rulemaking under Section 120.54(5) or to request proceedings under Section 120.57. Petitioners here have not attempted to invoke either remedy before the Board. Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977), in which a regulatory agency rescinded official interpretation of its undoubted rule, is distinguished on its facts, as is Straughn v. O'Riordan, 338 So.2d 832, 834 n. 3 (Fla.1976) (dictum).
The appeal from the circuit court of Leon County, which denied appellants' motion for injunctive relief, urges that the Board's asserted error in denying transportation is "so egregious or devastating that the promised administrative remedy is too little or too late," thereby justifying circuit court intervention. State ex rel. Dep't of Gen. Serv. v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977). The circuit court properly ruled to the contrary. Appellants' other arguments in support of circuit court jurisdiction are unavailing. School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977); United Faculty of Florida v. Branson, 350 So.2d 489 (Fla. 1st DCA 1977).
The judgment of the circuit court is AFFIRMED. The prayer of the petition for review is DENIED.
I would reverse.
In my judgment, the School Board's...
To continue reading
Request your trial
-
State, Dept. of Ins. v. Insurance Services Office, VV-367
...677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).3 Hill v. School Bd. of Leon County, 351 So.2d 732, 733 (Fla. 1st DCA 1977) ("Affected agencies will be pressed toward rulemaking by the necessity otherwise to explicate and defend poli......
-
INS. CO. OF NORTH AMERICA v. Morgan, 80-1469.
...Protective Trust Fund, 388 So.2d 1064 (Fla. 3d DCA 1980), review denied, 397 So.2d 779 (Fla. 1981). See also Hill v. School Board of Leon County, 351 So.2d 732 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1215 (Fla. 1978); 4245 Corporation, Mother's Lounge, Inc. v. Division of Beverage, 348......
-
Bowling v. Department of Ins.
...contested nonrule policy in Section 120.57 proceedings is the price the agency pays to avoid rulemaking. Hill v. School Board of Leon County, 351 So.2d 732 (Fla. 1st DCA 1977), cert. den., 359 So.2d 1215 (Fla.1978); State Dept. of Health and Rehab. Serv. v. Barr, 359 So.2d 503, 505 (Fla. 1s......
-
Barker v. Board of Medical Examiners, Dept. of Professional Regulation
...(Fla. 1st DCA 1977), but contrast Mitchell v. School Board of Leon County, 347 So.2d 805 (Fla. 1st DCA 1977); Hill v. School Board of Leon County, 351 So.2d 732 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1215 (Fla.1978). Our academic endeavors in attempting to label the action either rule......
-
The scarecrow in McDonald's Farm: a fairy tale about administrative law.
...Inc. v. Department of Business Regulation, 393 So. 2d 1177, 1181-1184 (Fla. 1st D.C.A. 1981);Hill v. School Board of Leon County, 351 So. 2d 732, 733 (Fla. 1st D.C.A. [25] McDonald, 346 So. 2d at 580 and 583. [26] McDonald, 346 So. 2d at 580-581. Policy-by-rule need not evolve. Agency polic......