The First District Court of Appeal’s decision in Publix Super Markets, Inc. v. Department of Financial Services is a clear reminder that Florida agencies may not use rulemaking to expand statutory text—even where the agency believes its policy position is reasonable.
In setting aside two proposed workers’ compensation rules, the court reinforced core limits on delegated legislative authority under Florida’s Administrative Procedure Act (APA) and provided a straightforward roadmap for challenging agency overreach.
Case Background: Workers’ Comp and “Absolute Choice”
Section 440.13(3)(j), Florida Statutes, gives injured workers a “free, full, and absolute choice” in selecting the pharmacy or pharmacist that dispenses required prescription medication. The statute expressly forbids interference by the Department, employers, or carriers.
Although the Department of Financial Services (DFS) historically interpreted this language to apply only to licensed pharmacies and pharmacists, it later changed course. DFS began asserting that physicians and other healthcare providers registered as dispensing practitioners under Chapter 465 must also be treated as “pharmacists” for purposes of the absolute‑choice statute.
That interpretation was formalized through two proposed rules—Rules 69L‑7.730 and 69L‑7.740—which would have barred carriers from denying authorization or reimbursement solely because medication was dispensed by a registered dispensing practitioner.
Carriers challenged the proposed rules at DOAH as an invalid exercise of delegated legislative authority.
The First DCA’s Holding: Rules Set Aside
Although the ALJ upheld the rules, the First DCA reversed. Applying de novo review and giving no deference to the agency’s interpretation, the court held that both rules “enlarge, modify, or contravene” the statute they purported to implement, in violation of section 120.52(8)(c), Florida Statutes.
The final DOAH order was set aside.
Why the Rules Failed Under the Florida APA
1. Only One Statute Actually Addressed Dispensing Location
DFS cited a long list of workers’ compensation statutes as authority for the rules. The court rejected that approach, explaining that only section 440.13(3)(j) governs where prescription medication may be dispensed.
General rulemaking authority or statutes addressing reimbursement and authorization do not permit an agency to regulate topics the Legislature addressed narrowly and specifically. See, § 120.52(8), Fla. Stat.
2. “Pharmacist” Does Not Include “Dispensing Practitioner”
Looking to statutory text and structure, the court emphasized that Chapter 465 expressly distinguishes pharmacists from dispensing practitioners.
- Pharmacists are licensed after formal education, internships, and examinations.
- Dispensing practitioners are non‑pharmacists granted a limited statutory exception allowing them to dispense medication directly to their own patients.
The dispensing‑practitioner statute itself draws the distinction, authorizing dispensing by practitioners except from the general rule that only licensed pharmacists may dispense drugs.
3. Legislative Silence Was Intentional
The court also pointed to section 440.13(12)(c), which expressly references dispensing practitioners when setting reimbursement rates. That express inclusion elsewhere in Chapter 440 reinforced the conclusion that their omission from the absolute‑choice provision was intentional.
Courts—and agencies—may not supply words the Legislature chose not to include.
Key Administrative Law Takeaways
- Agencies must anchor rules to a specific implementing statute, not broad policy goals.
- Rulemaking cannot be used to rewrite or expand unambiguous statutory language.
- Express statutory distinctions matter—and cut against agency creativity.
- Post–Article V, section 21, Florida courts will independently interpret statutes without agency deference.
Bottom Line
Publix Super Markets is a clean APA decision with wide application beyond workers’ compensation. It confirms that policy-driven rulemaking cannot substitute for legislative authority and underscores why proposed rules remain vulnerable when agencies stretch statutory text to meet policy objectives.
For Florida administrative law practitioners, it’s a decision worth bookmarking.
Jonathan Taylor is the Director of Appeals with The Law Offices of Moffa, Sutton, & Donnini, P.A. Mr. Taylor concentrates in the areas of Florida tax appeals and general administrative appeals. Mr. Taylor can be reached at 954-234-2884 or jonathantaylor@floridasalestax.com.
Read the full case opinion here.
This article is provided for general informational purposes only and does not constitute legal advice or create an attorney–client relationship. Readers should consult qualified counsel regarding the specific facts of their cases.