Price Wise Buying Group v. Nuzum
| Decision Date | 02 February 1977 |
| Docket Number | No. BB--350,BB--350 |
| Citation | 343 So.2d 115 |
| Parties | PRICE WISE BUYING GROUP et al., Petitioners, v. Charles A. NUZUM, as Director of the Division of Beverage, a division of the Department of Business Regulation of the State of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Jerome M. Novey, of Novey & Blanton, Tallahassee, for petitioner.
Charles L. Curtis, and Charles F. Tunnicliff, Tallahassee, for respondent.
Petitioners seek review of a Declaratory Statement issued by the Respondent stating that Respondent's prior interpretation of its rule, Florida Administrative Rule 7A--4.50, was incorrect and without statutory authority, and that all memoranda and informal discussions supporting that interpretation would no longer be followed by the Respondent. The issue which is determinative of this review is whether the Declaratory Statement is a rule as defined in Section 120.52(14), Florida Statutes (1975).
Rule 7A--4.50, authorizing cooperative pool buying by licensed vendors of alcoholic beverages, became law on 30 October 1973. Pursuant to that rule, the former director of the Respondent issued a memorandum on 10 July 1974 to 'All Distributors, All Agents of Buying Groups' interpreting Rule 7A--4.50 as it relates to the Tied House Evil Law. Since that date, the former director's memorandum has represented the Respondent's official position regarding the extension of credit to vendors and has been relied upon by the members of the alcoholic beverage industry in Florida.
On 26 January 1976, the present director issued a memorandum rescinding all prior memoranda regarding cooperative pool buying vendors. In response to that memorandum, Petitioner, Independent Beverage Dealers, Inc., filed a Petition for Declaratory Statement with the Respondent requesting a clarification of the Respondent's interpretation On 8 March 1976, the Respondent issued its Declaratory Statement of which review is sought.
of Rule 7A--4.50 as it related to the Tied House Evil Law. Pursuant to the Petitioner's request, the Respondent caused a Notice of Petition for Declaratory Statement to be published in the Florida Administrative Weekly on 27 February 1976.
Rule as defined by Section 120.52(14), Florida Statutes (1975), 'means each agency statement of general applicability that implements, interprets or prescribes law or policy or describes the organization, procedure or practice requirements of an agency and includes the amendment or repeal of a rule.'
The Declaratory Statement is a rule as defined by Section 120.52(14) because it is an agency statement of general applicability that implements, interprets and prescribes law or policy. It expressly rescinds the prior interpretation given Rule 7A--4.50 as it relates to the Tied House Evil Law, and sets forth a new interpretation of that law.
Section 120.52(14) also states that the term rule does not include:
'(a) Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public.
(b) Legal memoranda or opinions issued to an agency by the attorney general or agency legal opinions prior to their use in connection with the agency actions, or
(c) The preparation or modification of:
3. Agricultural marketing orders under Chapter 573 or Chapter 601.'
The Declaratory Statement does not fall within one of these exceptions because it is final agency action which affects the private interest of vendors belonging to cooperative pooling groups. Therefore, the Declaratory Statement falls within the general definition of rule, because it is a general principle of statutory construction that where a state sets forth exceptions, no others may be implied to be intended. Williams v. American Surety Company of New York, 99 So.2d 877 (Fla.2d DCA 1958); Dobbs v. Sea Isle Hotel, 56 So.2d 341 (Fla.1952).
Section 120.54, Florida Statutes (1975), sets forth the procedure for the adoption, amendment or repeal of any rule by an administrative agency. Subsection (1)...
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