22-000117RU Wkdr Ii, Inc. vs. Florida Department Of Revenue Status: Closed DOAH Final Order on Thursday, July 14, 2022.

Summary: An alleged unadopted rule on which the agency no longer relies is not subject to challenge in a section 120.56(4) proceeding.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

W KDR II, I NC . ,

Petitioner ,

vs. Case No. 22 - 0117RU

F LORIDA D EPARTMENT OF R EVENUE ,

Respondent .

/

F INAL O RDER

The fin al hearing in this matter was conducted before Administrative Law

Judge Jodi - Ann V. Livingstone of the Division of Administrative Hearings

(DOAH) on March 2, 2022, in Tallahassee, Florida.

A PPEARANCES

For Petitioner: Michael J. Bowen, Esquire

Akerm an LLP

50 North Laura Street, Suite 3100

Jacksonville, Florida 32202 - 3695

For Respondent: J. Clifton Cox, Esquire

John G. Savoca, Esquire

Office of the Attorney General

Revenue Litigation Bureau

The Capitol, Plaza Leve l 01

Tallahassee, Florida 32399

Jacek P. Stramski, Esquire

Florida Department of Revenue

Post Office Box 6668

Tallahassee, Florida 32314 - 6668

S TATEMENT OF THE I SSUE

The issue to be determined is whether a statement by the Department of

Revenue (Department or Respondent) constitute s an unadopted rule in

violation of section 120.54(1), Florida Statutes.

P RELIMINARY S TATEMENT

Background

On February 19, 2021, WKDR II, Inc. (WKDR), filed a Petition for

Chapter 120 Hearing to c ontest the Department ' s Notice of Proposed

Assessment (NOPA), dated January 13, 2020, which assessed sales and use

tax, a penalty, and interest against WKDR following an audit. A few days

later, on February 23, 2021, WKDR filed a separate Petition for Chap ter 120

Hearing to contest the Department ' s Notice of Intent to Levy (NIL), dated

February 18, 2021, which gave notice that the Department was proceeding to

freeze WKDR ' s bank account to collect the underlying audit assessment. The

Department referred both petitions to DOAH on March 3, 2021, for the

assignment of an administrative law judge to conduct chapter 120 hearings.

At DOAH, WKDR ' s challenge to the NOPA was designated Case

No. 21 - 0845 and the challenge to the NIL was designated Case No. 21 - 0844 .

B oth cases were assigned to the undersigned. Both cases were " substantial

interests " proceedings brought under sections 120.569 and 120.57(1 ).

On March 12, 2021, the Department filed a Motion to Consolidate Cases

and to Bifurcate Issues. The undersigned g ranted the motion, in part, and

consolidated the two above - styled cases for a hearing on the NOPA and the

NIL.

On May 5, 2021, WKDR filed a Petition to Determine the Invalidity of

Existing Administrative Rule 12 - 6.003 (Existing Rule Challenge). The

Exist ing Rule Challenge, filed pursuant to section 120.56(3), was designated

Case No. 21 - 1488RX, and assigned to the undersigned.

On May 12, 2021, the Department filed the Department of Revenue ' s

Agreed Motion to Consolidate Cases, Agreed Motion for Continuan ce, and

Unagreed Motion to Bifurcate Issues. The undersigned granted the motion.

With this, WKDR ' s Existing Rule Challenge was consolidated with the

already consolidated challenges to the NOPA and NIL, and the proceeding

was bifurcated for a hearing on the threshold jurisdictional issues prior to a

final hearing on the merits. For the challenges to the NOPA and NIL, the

threshold jurisdictional issue raised by the Department was timeliness; for

the Existing Rule Challenge, the threshold jurisdictional issue raised by the

Department was WKDR ' s standing.

The hearing on the threshold issues was held on August 18, 2021. On

December 1, 2021, the undersigned issued an Order on Standing, finding that

WKDR had standing to bring the Existing Rule Challenge, pursuan t to

section 120.56(3).

The undersigned issued a Recommended Order in Case N o s . 21 - 0844 and

21 - 0845 on November 30, 2021, recommending dismissal of WKDR ' s

challenges to the NOPA and NIL, finding that WKDR was time barred from

bringing the challenge s .

On March 4, 2022, the undersigned issued a Summary Final Order,

dismissing the Existing Rule Challenge.

This Proceeding

On January 13, 2022, WKDR filed a Petition to Challenge the

Department's Unadopted Rule for Notifying Taxpayers of Assessments

( Petitio n). The parties waived the requirement of a hearing within 30 days

and the formal hearing was scheduled for March 2, 2022. See § 120.56(4)(b),

Fla. S t at.

Prior to the hearing, the parties filed a Joint Prehearing Stipulation for

the March 2, 2022, Hearing on Petitioner ' s Challenge to an Alleged

Unadopted Rule, in which they stipulated to a number of facts. The agreed

facts are incorporated in the findings below, to the extent relevant.

The final hearing was held on March 2, 2022, in Tallahassee, Florida.

WKDR and the Department both presented the testimony of Douglas

Plattner (Mr. Plattner) and Robert DuCasse (Mr. DuCasse). WKDR ' s

Exhibits 1 through 3, 5, 6, 12, and 13 and the Department ' s Exhibits 2

through 7 were admitted into evidence.

The one - volume Transcript of the final hearing was filed on May 26, 2022.

The parties timely filed post - hearing submittals. 1 Both submittals have been

duly considered in preparing this Final Order.

All references to the Florida Statutes are to the 202 1 version.

1 WKDR filed a Motion for Summary Final Order and in it, incorrectly stated that " the [ALJ]

instructed the parties to file motions for summary final orders within twenty (20) days of the

filing of the h earing transcript with DOAH. The filing of this motion by Petitioner complies

with the instruction of the ALJ. " At the final hearing, the undersigned stated that " the

proposed final orders will need to be submitted within 20 days of the filing of the transcript

with DOAH. " Per a request from WKDR, the undersigned accepts the Petitioner ' s Motion for

Summary Final Order as its P roposed F inal O rder.

F INDIN GS OF F ACT

1. The Department administers Florida ' s sales tax statutes and performs

audits to ensure compliance with sales tax laws.

2. WKDR is a Ford franchise car dealership operating as LaBelle Ford.

WKDR is organized as an " S " corporation and is wholly owned by

Mr. Plattner.

3. WKDR ' s address is 851 South Main Street, LaBelle, Florida 33935.

4. Lisa Weems (Ms. Weems) is a r evenue s pecialist III for the Department.

She has worked for the Department, in its Compliance Standards Section, for

over 15 years. In addition to other tasks, Ms. Weems is responsible for

printing NOPAs to send out to taxpayers and their representatives.

5. Mr. DuCasse is a r evenue p rogram a dministrator II for the

Department. Mr. DuCasse supervises Charles Kelly (Mr. Kelly), who, in turn,

supervises Ms. Weems.

6. On or about March 21, 2019, the Department began a sales tax audit of

WKDR for the period of March 1, 2016, through February 28, 2019.

7. On January 13, 2020, the Department issued a NOPA to WKDR.

WKDR ' s NOPA assessed taxe s of $801,967.01, a penalty of $200,491.75, and

interest of $166,431.12, for a total due by WKDR of $1,168,889.88 following

the audit.

8. As testified to by Ms. Weems at an evidentiary hearing in Case

Nos. 21 - 0844 and 21 - 0845, at the time the NOPA was iss ued to WKDR, the

Department ' s practice was to send NOPAs that had assessments for less than

$100,000.00 (small assessments) by regular mail and NOPAs that had

assessments over $100,000.00 (large assessments) by fax and e - mail, in

addition to regular mail.

9. As an exception to its typical practice, and upon request of the taxpayer

or taxpayer representative, the Department would send NOPAs that had

small assessments by e - mail and/or fax.

10. This practice of sending large assessments by regular mail, fax, and

e - mail, and small assessments by regular mail only, is a description of the

agency statement identified in WKDR ' s Petition and is the crux of this

unadopted rule challenge.

11. WKDR ' s assessment was for an amount greater than $100,000.00,

and, as su ch, the Department sent the NOPA to WKDR by regular mail, fax,

and e - mail.

12. Following the evidentiary hearing in Case Nos. 21 - 0844 and 21 - 0845,

the undersigned issued a Recommended Order on November 30, 2021, finding

that WKDR and its representative rec eived actual notice of the NOPA but

failed to file a timely challenge to the NOPA, pursuant to the requirements of

section 72.011(2)(a), Florida Statutes, which requires all such challenges to

be filed within 60 days after an assessment becomes final. Cons equently, the

undersigned found WKDR was time barred from challenging the NOPA and

recommended that the Department enter a final order dismissing Case

Nos. 21 - 0844 and 21 - 0845.

13. In a footnote in the Recommended Order, the undersigned noted that

" the Dep artment ' s internal policy to send NOPAs with assessments over

$100,000.00 by e - mail and fax is an unadopted rule; however, it is not

necessary to rely on it as the basis for the determination in this matter. See

§ 120.57(1)(e)1., Fla. Stat. " The Recommende d Order also plainly stated that

" [t]he undersigned finds that the absence of a rule that promulgates the

' procedures ' by which taxpayers are to be notified of assessments does not

overcome the fact that WKDR was actually notified of the NOPA. "

14. On Feb ruary 28, 2022, the Department issued a Final Order adopting

the Recommended Order in its entirety.

15. In January 2022, the Department changed its p ractice of sending

NOPAs to taxpayers and their representatives, such that the Department no

longer made a distinction between small assessments and large assessment s

when determining how to send NOPAs. Instead, the Department decided to

send all NOPAs by U.S. mail, unless requested by a taxpayer or its

representative to send it by other means. In short, the D epartment

abandoned its former practice, which was the challenged agency statement,

and took up a revised practice that is in line with the requirements of section

213.0537, Florida Statutes.

16. On January 20, 2022, Mr. DuCasse met with Ms. Weems and her

supervisor, Mr. Kelly, to tell them to cease the Department ' s former practice.

Mr. DuCasse instructed Ms. Weems and Mr. Kelly to provide all NOPAs by

regular mail, regardless of the amount of the proposed assessment. In

addition, he informed them that NOPA s may be sent by fax and e - mail , as

well, if a request for such is received from the taxpayer or taxpayer

representative ( also without regard to the amount of the proposed

assessment ) .

17. The Department ' s new revised practice is a direct application of

s ection 213.0537, which provides , as follows:

(1) Notwithstanding any other provision of law,

the Department of Revenue may send notices

electronically, by postal mail, or both. Electronic

transmission may be used only with the affirmative

consent of the ta xpayer or its representative.

Documents sent pursuant to this section comply

with the same timing and form requirements as

documents sent by postal mail. If a document sent

electronically is returned as undeliverable, the

department must resend the documen t by postal

mail. However, the original electronic transmission

used with the affirmative consent of the taxpayer

or its representative is the official mailing for

purposes of this chapter.

(2) A notice sent electronically will be considered

to have been received by the recipient if the

transmission is addressed to the address provided

by the taxpayer or its representative. A notice sent

electronically will be considered received even if no

indi vidual is aware of its receipt. In addition, a

notice sent electronically shall be considered

received if the department does not receive

notification that the document was undeliverable.

(3) For the purposes of this section, the term:

(a) " Affirmative c onsent " means that the taxpayer

or its representative expressly consented to receive

notices electronically either in response to a clear

and conspicuous request for the taxpayer ' s or its

representative ' s consent, or at the taxpayer ' s or its

representative ' s own initiative.

(b) " Notice " means all communications from the

department to the taxpayer or its representative,

including, but not limited to, billings, notices issued

during the course of an audit, proposed

assessments, and final assessments authorized by

this chapter and any other actions constituting

final agency action within the meaning of

chapter 120.

18. Section 213.0537 was enacted on July 1, 2020, several months after

WKDR ' s NOPA was issued. The statute provides guidance as to what means

the Department may utilize to serve NOPAs, " notwithstanding any other

provision of law. " It provides that NOPAs may be sent by postal mail and,

also, that NOPAs may be sent electronically if the Department receives

affirmative consent from the taxpayer or its representative.

19. Be ginning January 21, 2022, the Department has provided all NOPAs,

regardless of the amount of the assessment, to taxpayers solely in accordance

with the allowances of section 213.0537, and abandoned reliance upon its

previous practice.

20. The Department ' s former practice and its current practice are similar.

The differences, however, are important to a determination regarding the

claimed usage of an unadopted rule. In January 2020, when the Department

issued a NOPA to WKDR, it did so based on a procedure, n ot adopted by rule,

or set forth in statute, that provided that NOPAs with small assessments

were to be provided by mail and NOPAs with large assessments were to be

provided by mail, fax, and e - mail . The Department ' s current practice is quite

similar in th at the Department follows a procedure whereby both small and

large assessments are sent by regular mail, but additional means of service

(by fax or e - mail ) may be provided upon request of the taxpayer or taxpayer

representative. Its current practice is not only different than it s former

practice in that there is no differentiation between large and small

assessment s Ð more importantly, its current practice is different because it is

a direct application of current law.

21. In its Petition, WKDR challenged th e Department ' s former practice Ð a

practice that, at the time WKDR was issued a NOPA, was not set forth in

rule or statute. The Department ' s current practice of sending NOPAs in

accordance with section 213.0537 has not been challenged and is not the

subject of this proceeding. 2

22. Because the Department has ended its former practice, and provides

NOPAs to all taxpayers in accordance with current law, an order that the

Department cease reliance upon the challenged agency statement would not

cause any change i n the Department ' s practices.

C ONCLUSIONS OF L AW

23. DOAH has jurisdiction over the parties and subject matter of this

proceeding pursuant to sections 120.56, 120.569, and 120.57(1) .

24. Section 120.56(4)(a) provides that person s substantially affected by

an agency statement that is an unadopted rule may seek an administrative

determination that the statement violates section 120.54(1)(a). S ection

120.54(1)(a) provides , in general, that each agency statement defined as a

rule by section 120.52 shall be ado pted by the rulemaking procedure in

section 120.54.

2 In its post - hearing submittal, WKDR asserte d that the nature of the controversy in this

proceeding is " did the Respondent impermissibly rely on an unadopted rule under section

120.54(1)(a), Florida Statutes, at the time it issued the sales and use tax assessment to the

Petitioner in January 2020 ? "

2 5 . S ection 120.52(16 ) defines "rule" in pertinent part, as follows:

(16) " Rule " means each agency statement of

general applicability that implements, interprets,

or prescribes law or policy or describes the

procedure or practice requirements of an agency

and includes any form which imposes any

requirement or solicits any infor mation not

specifically required by statute or by an existing

rule. The term also includes the amendment or

repeal of a rule.

2 6 . A "rule" is "each agency statement of general applicability that

implements, interprets, or prescribes law or policy." See § 120.52(16), Fla.

Stat. The definition of "rule" expressly includes an agency statement that

"describes the procedure or practice requirements of an agency." See

§ 120.52(16), Fla. Stat.

2 7 . An agency statement must be of "general applicability" to be

con sidered a rule. An agency statement of general applicability is one that

the agency is uniformly applying to a category or class of similarly - situated

persons or activities, rather than just a single person or in singular

situations. McCarthy v. Dep't of I ns. , 479 So. 2d 135, 137 (Fla. 1st DCA 1985).

28. WKDR brings a section 120.56(4) unadopted rule challenge to

challenge the Department's statement. Section 120.56(4) provides as follows:

(4) CHALLENGING AGENCY STATEMENTS

DEFINED AS UNADOPTED RULES; SPECIAL

PROVISIONS. Ð

(a) Any person substantially affected by an agency

statement that is an unadopted rule may seek an

administrative determination that the statement

violates s. 120.54(1)(a) . Th e petition shall include

the text of the statement or a description of the

statement and shall state facts sufficient to show

that the statement constitutes an unadopted rule.

(b) The administrative law judge may extend the

hearing date beyond 30 days aft er assignment of

the case for good cause. Upon notification to the

administrative law judge provided before the final

hearing that the agency has published a notice of

rulemaking under s. 120.54(3), such notice shall

automatically operate as a stay of proc eedings

pending adoption of the statement as a rule. The

administrative law judge may vacate the stay for

good cause shown. A stay of proceedings pending

rulemaking shall remain in effect so long as the

agency is proceeding expeditiously and in good

faith to adopt the statement as a rule.

(c) If a hearing is held and the petitioner proves

the allegations of the petition, the agency shall

have the burden of proving that rulemaking is not

feasible or not practicable under s. 120.54(1)(a).

(d) The administra tive law judge may determine

whether all or part of a statement violates

s. 120.54(1)(a). The decision of the administrative

law judge shall constitute a final order. The

division shall transmit a copy of the final order to

the Department of State and the committee. The

Department of State shall publish notice of the

final order in the first available issue of the Florida

Administrative Register.

(e) If an administrative law judge enters a final

order that all or part of an unadopted rule violates

s. 120.54(1)(a), the agency must immediately

discontinue all reliance upon the unadopted rule or

any substantially similar statement as a basis for

agency a ction.

(f) If proposed rules addressing the challenged

unadopted rule are determined to be an invalid

exercise of delegated legislative authority as

defined in s. 120.52(8)(b) - (f), the agency must

immediately discontinue reliance upon the

unadopted rule a nd any substantially similar

statement until rules addressing the subject are

properly adopted, and the administrative law judge

shall enter a final order to that effect.

(g) All proceedings to determine a violation of

s. 120.54(1)(a) shall be brought pur suant to this

subsection. A proceeding pursuant to this

subsection may be consolidated with a proceeding

under subsection (3) or under any other section of

this chapter. This paragraph does not prevent a

party whose substantial interests have been

determin ed by an agency action from bringing a

proceeding pursuant to s. 120.57(1)(e). (emphasis

added).

29. WKDR set forth a description of the challenged agency statement in

its Petition , which provides that the Department " has a procedure whereby

taxpayers wit h assessments less than $100,000.00 are notified solely by

USPS first class mail " and " taxpayers with assessments greater than

$100,000.00 are notified by USPS first class mail, via fax, and via email[.] "

See § 120.54(4)(a), Fla. Stat.

30 . WKDR has the bur den to prove , by the preponderance of the evidence,

that the challenged agency statement is an unadopted rule and that it is

substantially affected by the challenged statement . See § 120.56(1)(e), Fla.

Stat. As with other proceedings conducted pursuant to section s 120.569 and

120.57(1), this is a de novo proceeding. See § 120.57(1)(k), Fla. Stat.

Standing

3 1 . A challenge to an agency statement as an unadopted rule may only be

brought by a person who is "substantially affected" by the alleged unadopted

rule. See § 120.56(4)(a), Fla. Stat.

32. A substantially affected person is one who will suffer a real or

immediate injury in fact because of the alleged unadopted rule and who is

within the zone of interests to be protected or regulated. See , e.g. , Jacoby v.

Fla. Bd. of Med. , 917 So. 2d 358, 360 (Fla. 1st DCA 2005).

3 3 . The allegations in the Petition Ð that the Department is using an

agency statement that is a generally applicable procedure for giving notice to

taxpayers Ð were deemed sufficient to plead standin g, based on WKDRÔs

status as a taxpayer to whom the agency statement could be applied in the

future. In its Petition, WKDR contended that it " is potentially subject to

future audits and assessments by the Department, " in explaining how they

continue to be substantially affected by the challenged statement.

3 4 . However, it was incumbent on WKDR to prove its standing at the

hearing. WKDR failed to prove that the challenged agency statement exists

currently and is applied to taxpayers, or that the former, now -

abandoned agency statement , could be applied to WKDR, as a taxpayer, in

the future. The challenged statement is not currently a statement of "general

applicability" ; it is a statement of no applicability. See Beermunder v. Dep't of

Ag. & Consumer Servs., Div. of Licensing, Case No. 14 - 6037, FO at 9 - 10, and

14 (Fla. DOAH Apr . 10, 2015), aff'd per curiam, 186 So. 3d 1024 (Fla. 1st

DCA 2016) ("Captain Beermunder has not proven the present existence or

application of the alleged unadopted rule. This also means he has not proven

he is substantially affected by the statement. Therefore, he lacks standing to

bring this proceeding.").

Retrosp e ctive Relief N ot Available

3 5 . WKDR contends in its Petition that the challenged agency statement

is an "unpromulgated rule" and, therefore, should have been adopted in

accordance with the rulemaking procedures set forth in section 120.54(1)(a).

However, in its Proposed Final Order, WKDR shifted its perspective to frame

the issue as whether the challenged statement was an unado pted rule in

January 2020, when the NOPA was issue to WKDR. That is not a proper

matter for determination in a proceeding under section 120.56(4).

3 6 . WKDR did not raise as a defense in Case Nos. 21 - 0844 and 21 - 0845

that the Department's proposed action wa s improperly relying on an

unadopted rule. As the undersigned noted in footnote 4, at page 12 of the

Recommended Order, the undersigned did not rely on an unadopted rule in

recommending agency action, and those recommendations were adopted by

the Departmen t in its Final Order.

3 7 . Here, it is undisputed that the challenged agency statement, which is

no longer being applied, was not formally promulgated as a rule of the

Department. But it is also undisputed that the Department is no longer

applying the chall enged agency statement.

38. Through its Petition, WKDR is seeking retrospective relief from the

Department's former procedure, pursuant to the provisions of section

120.56(4). As a section 120.56(4) unadopted rule challenge, the issues to be

resolved in t his case are whether the challenged agency statement is a rule ;

and, if so, whether the rule violates section 120.54(1)(a). " If the

administrative law judge rules in favor of the challenger on this issue, the

agency can no longer rely upon the statement as a basis for agency action and

the challenger is entitled to reasonable costs and attorney ' s fees under

section 120.595(4) . " See Osceola Fish Farmers Ass 'n , Inc. v. Div . of Admin .

Hearings , 830 So. 2d 932, 934 (Fla. 4th DCA 2002). No other relief is

availa ble in a section 120.56(4) proceeding.

39 . " When section 120.54(1)(a) is read together with section 120.56(4), it

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 t hem with

incentives to promulgate rules through the formal rulemaking process. " Id. at

934. Section 120.56(4) proceedings stop agencies from continuing to rely on

unadopted rules Ð by forcing agencies into the rule adoption process. Where,

as here, the agenc y is no longer utilizing the challenged agency statement ,

the purpose of the statute cannot be effectuated.

4 0 . Further, the undersigned has no legal authority to find that a past

agency statement Ð that is, the Department ' s former practice, upon which it

no longer relies Ð wa s a violation of section 120.54(1)(a) . That is because

section 120.56(4) is forward - looking, offering prospective relief only against

an agency's continued reliance on an unpromulgated statement . A former

agency statement that is no longer relied upon is not subject to challenge.

Section 120.56(4)(a) provides , in pertinent part , that " any person

substantially affected by an agency statement that is an unadopted rule may

seek an administrative determination that the statement violates

s. 120 .54(1)(a). " (emphasis added). Similarly, section 120.56(4)(d) states that

the " administrative law judge may determine whether all or part of a

statement violates s. 120.54(1)(a). " (emphasis added). See also § 120.56(4)(e),

Fla. Stat. ( " If an administrative law judge enters a final order that all or part

of an unadopted rule violates s. 120.54(1)(a), the agency must immediately

discontinue all reliance upon the unadopted rule or any substantially similar

statement as a basis for agency action . " ) ( e mphasis ad ded).

4 1 . I t is clear the Department is not currently relying on the challenged

statement and, as such, the former practice could not presently violate

section 120.54(1)(a). I t is pointless for the undersigned to issue an Order

directing the Department to discontinue reliance on a practice it has already

ceased reliance on. Although the Department is utilizing a similar practice, it

is relying on an enacted law to do so.

4 2 . The competent, substantial, undisputed evidence adduced at the final

hearing shows that the Department has ceased reliance on its prior practice

as of January 20, 2022. Since then, the Department mails NOPAs to

taxpayers by U.S. mail, regardless of the amount of the proposed assessment,

and, additionally, provides NOPAs by fax or e - mail upon request, in

accordance with section 213.0537. The Department's current practice, which

is not challenged by the Petition and is not at issue in this proceeding, is a

direct application of section 213.0537. Since the Department has voluntarily

ceased reliance on the challenged statement , and such is not a basis for

future agency action, there is no current unadopted rule to find in violation of

section 120.54(1)(a), and no relief can be provided through section 120.56(4).

See Fair v. Bd . of Elec . City of Tampa , 211 So. 2d 239 (Fla. 2d DCA 1968)

(The question raised by appellant was rendered moot by virtue of the repeal

of the contested statute.) .

4 3 . T he Department does not rely on the former agency statement

challenged in this proceeding , and no pract ical purpose would be served by

prohibiting the Department from relying on a former practice Ð W KDR would

not obtain any relief from such a prohibition. Because no meaningful relief

remains available to WKDR in this proceeding, WKDR ' s Petition is moot. Fla.

Retail Fed. v. Ag . for Healthcare Admin. , Case No. 04 - 1828RX (Fla. DOAH

Jul y 19, 2004), aff ' d per curiam , 903 So. 2d 939 (Fla. 1st DCA 2005) (stating

" the pertinent question is whether it is possible for the [Petitioner] to obtain

effective relief in this s ection 120.56 proceeding. If the answer is ' no, ' then

this cause is moot and must be dismissed. " ); J.B. Coxwell Contracting v. Dep ' t

of Trans. , 580 So. 2d 621, 623 (Fla. 1st DCA 1991) (noting that a rule

challenge appeal was dismissed as moot upon amendme nt of the rule at

issue) .

4 4 . DOAH Final Orders in unadopted rule challenge proceedings have

consistently determined that these proceedings are forward - looking only,

with the only available relief being a declaration that an agency shown to be

applying a s tatement of general applicability , that has not been properly

promulgated , must cease relying on that statement. See, e.g., Zimmerman v.

Dep't of Fin. Servs., Off. of Ins. Regul. , Case No. 05 - 2091RU, FO at 11 (Fla.

DOAH Aug. 24, 2005) ("The statute [sectio - looking in

its approach. It is designed to prevent future agency action based on

statements not adopted in accordance with required rulemaking

procedures[.]").

4 5 . Accordingly, when, as in this case, the evidence establishes that t he

agency has stopped using a challenged statement, there is no relief that can

be provided and the unadopted rule challenge petition must be dismissed. It

is irrelevant whether an agency's former statement would have met the

definition of a rule before th e agency discontinued reliance on the statement.

In a de novo proceeding, it is incumbent on a petitioner to prove that the

statement is now an unadopted rule Ð that the statement currently meets the

definition of a rule in that it is now a statement being u niformly applied by

the agency. Retrospective relief is not available in a section 120.56(4)

proceeding. The only remedy available is to require an agency currently

relying on an unadopted rule to stop doing so, prospectively. See, e.g. ,

Beermunder v. Dep' t of Ag. & Consumer Servs., Div. of Licensing, Case

No. 14 - 6037, FO at 9 - 10, and 14 (Fla. DOAH Apr . 10, 2015) aff'd per curiam ,

186 So. 3d 1024 (Fla. 1 st DCA 2016) (unadopted rule challenge dismissed

based on the following:

"The Division È is no longer us ing the 2008

Manual and 2011 Certificate challenged as

unpromulgated rules and has adopted rules

incorporating more current versions of both. This

È raises a factual defense of whether the person

claiming an agency has an unadopted rule has

successfully pr oved the existence and application of

it. The plain language of the statute requires a

petitioner to prove 'agency statement of general

applicability that implements, interprets, or

prescribes law or policy.' £ 120.52(16), Fla. Stat. È

Captain Beermunder h as not proven the present

existence or application of the alleged unadopted

rule.");

Davis v. Dep't of Child. & Fam. Servs. , Case No. 05 - 353 2 RU, FO at 13 - 14,

and 17 (Fla. DOAH Feb. 1, 2006)

("The agency statement that Petitioner is seeking

to challenge i n the instant Section 120.56(4)

proceeding is one that Respondent has already

'abandoned' and replaced (with a substantially

different policy statement). Because it has been

rescinded and thus will not be relied on by

Respondent as a basis for future agenc y action, it is

unnecessary to adjudicate Petitioner's claim

that this statement violates Section 120.54(1)(a),

Florida Statutes, and he thus is entitled to

prospective injunctive relief under Section

120.56(4). È Inasmuch as no determination has

been (nor need be) made that the Challenged

Statement violates Section 120.54(1)(a), Petitioner

is not entitled to reasonable costs and attorney's

fees pursuant to Section 120.595(4), Florida

Statutes.");

Fla. Pub. Employees Council 79 v. Dep't of Labor & Emp. Se c. , Case No. 98 -

4706RU, FO at 12 (Fla. DOAH Feb. 23, 1999)

("Because the Department had utilized the

alternate method of layoff [challenged as an

unadopted rule] to effectuate the reduction in force

prior to the time the Petition in this case was filed

an d before the evidentiary hearing was conducted,

this case is moot. A determination that the

Department's request for approval of the use of the

alternate method constitutes an unpromulgated

rule will offer no relief to the sole remaining

Petitioner, becaus e the layoff has been completed

and has no prospective application.").

Attorney's Fees

4 6 . WKDR is not entitled to attorney's fees in this proceeding as the

undersigned has not " determine [d] that all or part of an agency statement

violates s. 120.54(1)(a) , or that the agency must immediately discontinue

reliance on the statement and any substantially similar statement pursuant

to s. 120.56(4)(f) ," because, as set forth above, there is no need to do so. Also ,

as recognized in the Davis Final Order, the pros pective relief in section

120.595(4) is unnecessary and not available when an agency has chosen to

abandon its use of an agency statement. S ee Davis v. DepÔt of Child . and

Fam . S erv s. , Case No. 05 - 3532RU (Fla. DOAH Feb. 1, 2006) (ALJ found that

a petition challenging an agency statement had to be dismissed as moot

where the statement was abandoned and not relied upon for future agency

action, and that the potential for attorney fees was not a collateral legal

consequence precluding dismissal).

O RDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that :

(1) WKDR ' s Petition to Challenge the Department's Unadopted Rule for

Notifying Taxpayers of Assessments is dismissed.

(2) WKDR ' s request for attorney ' s fees and costs purs uant to section

120.595(4) is denied.

D ONE A ND O RDERED this 1 4 th day of July , 2022 , in Tallahassee, Leon

County, Florida.

S

J ODI - A NN V. L IVINGSTONE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 3 2399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 4 th day of July , 2022 .

C OPIES F URNISHED :

Michael J. Bowen, Esquire Mark S. Hamilton, General Counsel

Akerman LLP Department of Revenue

50 North Laura Street , Suite 3100 Post Office Box 6668

Jacksonville, Florida 3 2202 T allahassee, Florida 32314 - 6668

J. Clifton Cox, Esquire Jacek P. Stramski, Esquire

Office of the Attorney General Department of Revenue

Revenue Litigation Bureau Post Office Box 6668

The Capitol , Plaza Level 01 Tallahassee, Florida 32314 - 6668

Tallahassee, Florida 32399

James A. Zingale, Executive Director

Department of Revenue

Post Office Box 6668

Tallahassee, Florida 32314 - 6668

John G. Savoca, Esquire Anya O wens, Program Administrator

Office of the Attorney General Margaret Swain

Revenue Litigation Bureau Florida Administrative Code & Register

The Capitol , Plaza Level 01 Department of State

Tallahassee, Florida 32399 R. A. Gray Building

500 South Bronough Street

Ken Plante, Coordinator Tallahassee, Florida 32399 - 0250

Joint Admin istrative Proced ures

Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by this Final Order is entitled to judicial

review pursuant to section 120.68, Florida Statutes. Review proceedings are

governed by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appea l with the

agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be reviewed, and a copy of the notice, accompanied

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the ap pellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.