SHB lawyers Allan Wulbern and John Wallace recently obtained an appellate victory in a case that could reshape how Florida state agencies adopt and enforce administrative rules.
The case arose from a challenge to the Florida Department of Children and Families’ (DCF) adoption of its Childcare Facilities Handbook and Classification Summary through a procedure known as “incorporation by reference.” Under Florida’s Administrative Procedure Act (APA), agencies are required to publish the full text of proposed rules in the Florida Administrative Register at least 28 days prior to adoption. Like many agencies, DCF purported to adopt rules that include hyperlinks to the handbooks. When DCF published a proposed rule in the Florida Administrative Register that included changes to the handbook, however, those hyperlinks were not active.
In this case, DCF sanctioned Smith Hulsey & Busey’s client, Episcopal Children’s Services (ECS), based on its alleged violations of the handbook. Wulbern and Wallace challenged the rules because they had not been properly published and therefore could not be relied upon to support an enforcement action.
Before reaching the appellate court, the challenge was first heard by an administrative law judge (ALJ) at the Division of Administrative Hearings (DOAH). The ALJ issued a Recommended Order denying ECS’s challenge, and DCF subsequently adopted that order in a Final Order.
Wulbern and Wallace appealed to the Fifth District Court of Appeal, which issued an opinion on June 20, 2025, reversing DCF’s Final Order. The court agreed that DCF’s failure to publish the full text — or to provide active access to the incorporated materials for the required 28-day period — violated the APA, rendering the handbook’s rules as unadopted and unenforceable against ECS.
This decision has broad implications for agencies across the state that rely on similar incorporation methods. It opens the door to future challenges of enforcement actions based on unadopted rules and provides a powerful defense for individuals and businesses facing administrative sanctions based on improperly adopted rules contained in materials incorporated by reference.
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