CopyCited 190 times | Published | Florida 1st District Court of Appeal
...We recently held that every agency action is "a recognizable rule or an order" under the APA or is "incipiently a rule or order." State ex rel. Dep't of Gen. Serv. v. Willis,
344 So.2d 580, 584 (Fla. 1st DCA 1977). Except when an agency acts by formal rulemaking (Section
120.54) or by declaratory statement concerning the applicability of a statute, rule or order (Section
120.565), all agency action, on appropriate challenge, will mature into an order impressed with characteristics of the APA's Section
120.57....
...ype hearing upon request "[u]nless waived by all parties." The time and manner of requesting formal proceedings may be governed by agency rules not inconsistent with model rules promulgated by the Administration Commission. [5] Section
120.53(1)(b),
120.54(10); Fla....
...Sections
120.52(14) and .54 require that agency policy statements of general applicability be adopted as rules and Section
120.57 requires proof of incipient agency policy not expressed in rules and subjects it to countervailing evidence and argument. "No agency has inherent rulemaking authority," Section
120.54(4), but the Department has explicit power to implement by rule any provision of the banking code....
...The six standards for banking authority prescribed by Section 659.03(2) are susceptible to implementation and interpretation by Department rules, but as yet the Department has none. The APA does not chill the open development of policy by forbidding all utterance of it except within the strict rulemaking process of Section 120.54. Agencies will hardly be encouraged to structure their discretion progressively by vague standards, then definite standards, then broad principles, then rules if they cannot record and communicate emerging policy in those forms without offending Section 120.54....
...eneral applicability that implements, interprets, or prescribes law or policy ...." Section
120.52(14). It would immediately stifle Department policymaking and ultimately destroy the APA to label the Comptroller's statement a "rule" concerning which Section
120.54 requires notice of its intended utterance, an estimate of its economic impact, publication in Florida Administrative Weekly, public debate, review by the Administrative Procedures Committee and finally publication in the Florida Administrative Code....
...icability of its rules, Section
120.565, would tend to become arid, unreasoning edicts because explanation and interpretation, without rulemaking, would be held fatal to the intended action. Florida's APA does not have those bizarre effects. For the Section
120.54 rulemaking procedures are imposed only on policy statements of general applicability, i.e., those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law....
...On the contrary, the APA reflects the Council's conviction that: "In fact, agency proceedings frequently affect individual rights and create general policy at the same time, so that they *582 partake of adjudication and rule-making at the same time." [9] Section
120.53(1)(c) requires, independently of
120.54 rulemaking provisions, agency procedures for argument of policy issues before the agency....
...licy. If the Comptroller's purpose is to establish as policy that no bank shall be now authorized to use "First" in its name because of likely confusion, that is a policy statement of general applicability which must be subjected to rulemaking under Section 120.54....
...nounc[ing] the general policy which the Commission hopes to establish in subsequent proceedings."
506 F.2d at 41. [11] See Price Wise Buying Group, Bay Area Co-op. v. Nuzum,
343 So.2d 115 (Fla. 1st DCA 1977), holding that an agency cannot, except by Section
120.54 proceedings, discard and effectively repeal a rule regularly adopted....
CopyCited 168 times | Published | Court of Appeals for the Eleventh Circuit | 2005 U.S. App. LEXIS 10354, 2005 WL 1324592
...2003)
(holding sex offender registration did not violate separation of powers because requirement was
regulatory in nature).
25
powers.10 For the reasons that follow, we disagree.
1. Due Process
First, Appellants ask us to enforce F LA. S TAT. § 120.54(1)(b), which
requires administrative regulations be in place within 180 days of the enactment of
a statute requiring such rules....
...See Tony L. v. Childers,
71
F.3d 1182, 1185 (6th Cir. 1995). “State-created procedural rights that do not
guarantee a particular substantive outcome are not protected by the Fourteenth
Amendment, even where such procedural rights are mandatory.” Id. Section
120.54(1)(b) merely gives direction and procedural deadlines to state agencies; it
does not grant substantive rights to the Appellants.
2....
CopyCited 90 times | Published | Supreme Court of Florida | 9 Envtl. L. Rep. (Envtl. Law Inst.) 20
...es for guiding development, it shall by rule approve the locally-promulgated land development regulations. Section
380.05(6). The regulations are not effective until the Division of State Planning's rule approving them becomes effective which, under Section
120.54(11), Florida Statutes (1975), is 20 days after it is filed with the Secretary of State....
...icer on June 27, 1975. On June 30, 1975, the land development regulations were filed with the Secretary of State as Chapters 22F-6 and 22F-7, Florida Administrative Code. However, it was brought to the attention of the Administration Commission that Section
120.54(11), Florida Statutes (1975), which provides that regulations are "effective" twenty days after they are filed, might preclude the land development regulations from becoming effective within twelve months of adoption of the rule designating the area of critical state concern as mandated by Section
380.05(12), Florida Statutes (1975). Apprehensive concerning the effect of Section
120.54(11) upon the efficacy of the regulations, the Administration Commission met on July 15, 1975, declared an emergency pursuant to Section
120.54(8)(a), Florida Statutes (1975), and approved land development regulations identical to Chapters 22F-6 and 22F-7....
...issue and expressly reached none other. The court held that the emergency rules adopting the land development regulations were not effective because there was no demonstrated "immediate danger to the public health, safety, or welfare" as required by Section 120.54(8)(a)....
...ctive within the time imposed by Section
380.05(12) and, therefore, the designation made by Chapter 22F-5 terminated. On petition for rehearing the Administration Commission raised for the first time the issue of the intervening rule challenge under Section
120.54(3)....
...e declared an area of critical state concern. The Administration Commission held a public meeting in Key West on March 28, 1975, to receive comment on the recommendation of the Division of State Planning. The meeting was conducted in accordance with Section 120.54, Florida Statutes (1975), related to rulemaking procedures, and revisions in the recommendation of the Division of State Planning were proposed....
...on requesting that further proceedings scheduled for the following day be conducted in the formal manner prescribed by Section
120.57. Appellees asserted that their substantial interests would be affected and that a rulemaking proceeding pursuant to Section
120.54 did not provide adequate opportunity to protect those interests. At the proceedings conducted on April 15, 1975, the petition for a Section
120.57 hearing was denied due to the purported failure of appellees to establish that proceedings pursuant to Section
120.54 were inadequate to protect their interests....
CopyCited 86 times | Published | Florida 1st District Court of Appeal
...tively. The respondent contractors have made no showing that remedies available under the Act are inadequate. There is yet a question whether traditional judicial deference to administrative remedies is lessened by certain language in subsections of
120.54 and
120.56. Those sections authorize proceedings for the invalidation of agency rules, be they regularly adopted or merely proposed, which invalidly exercise delegated legislative authority. Subsections
120.54(4)(d) and.56(4) provide that "failure to proceed under [those sections] shall not constitute failure to exhaust administrative remedies." If the quoted provisions are to be construed as qualifying the exclusivity of the entire Act or its most...
...ctual bases and policy reasons for agency action... ." [12] The proper way for a substantially affected person to invoke a formal or informal
120.57 hearing is simplicity itself: he asks the agency for it. Fla. Admin. Code Rule 28-5.15 (model rule); Section
120.54(10), Florida Statutes (Supp. 1976). An understanding of
120.57's centrality makes clear that the questioned provisions of subsections
120.54(4)(d) and .56(4) "Failure to proceed under [those sections] shall not constitute failure to exhaust administrative remedies" enhance remedies available under the Act rather than encourage circuit court intrusion into the administrative process. The quoted provisions are addressed not to circuit courts but to district courts of appeal, which might otherwise rebuff rule challenges by petitions to review
120.57 proceedings because petitioner did not "exhaust" the rule-challenge remedies of
120.54 and .56. See Atlantic Coast L.R. Co. v. Carter,
66 So.2d 480 (Fla. 1953). The legislative purpose is simply to avoid any appearance of requiring a substantially affected party to initiate duplicative
120.54 or .56 proceedings if his rule challenge is regularly presented with other grievances under
120.57, resulting in final agency action and a petition for judicial review....
...he others sue to vindicate not only their private substantial interests but also their interests as citizens and taxpayers. The substantial private interests of the contractors affected by the Department's action are adequately protected by Sections
120.54,
120.56, and
120.57, Florida Statutes (Supp....
CopyCited 45 times | Published | Florida 1st District Court of Appeal | 1981 Fla. App. LEXIS 20257
...proof," one must look to the underlying statutory and regulatory framework under which a particular proceeding arises. For example, in Agrico Chemical Co. v. State,
365 So.2d 759 (Fla. 1st DCA 1978), this court held, in a rule challenge proceeding (Section
120.54, Florida Statutes), that the "burden is upon one who attacks the proposed rule to show that the agency, that adopts the rule, will exceed its authority; ......
...strative Code, effective March 23, 1980, apply to agency investigations "preliminary to agency action." New Rule 28-5.101 makes Chapter 28 applicable, specifically, "to all proceedings under Section
120.57, as well as those initiated under
120.60 or
120.54(16) which are required to be conducted in accordance with Section
120.57, F.S., to the extent that an agency has not adopted its own specific rules of procedure..." New Rule 28-5.110(1) provides, however, that the model rules do not apply to "...
CopyCited 42 times | Published | Supreme Court of Florida
...in his opinion there is good cause for such action. The assertion is untenable. Section
951.23(2)(b) requires that "standards and requirements" governing the density of detention populations be prescribed by rules adopted in the manner specified in section
120.54, Florida Statutes (1978 Supp.)....
CopyCited 37 times | Published | Florida 1st District Court of Appeal
...Florida's APA provides two distinct types of declaratory statements: (1) A declaratory statement involving the applicability of a statute, rule or order as provided by Section
120.565, and (2) a declaratory statement on the validity of a rule or proposed rule, provided by Sections
120.54 and .56....
...fected party" to obtain a judicial declaration of the validity of any rule of an administrative agency by bringing a declaratory judgment action in the circuit court of the county in which such party resides. [6] The legislature in enacting Sections
120.54(4)(a) and
120.56, employed more restrictive language, "substantially affected", than it did in enacting Section 120.30. The legislature must be presumed to have intended a different result by employing language describing a more limited scope of persons affected in a given situation and less restrictive language in other situations. For example, Section
120.54(3) permits all *1233 "affected persons" an opportunity to present evidence and argument on all issues under consideration appropriate to inform the agency of their contentions within 14 days after date of publication of the notice of a proposed rule....
CopyCited 35 times | Published | Florida 1st District Court of Appeal | 1981 Fla. App. LEXIS 21641
...Also under discussion, as a means of implementing the statute, was a "net acre" concept that in calculating "lots per acre" does not count acreage in roads, lakes and certain other areas within a given subdivision. In June 1979, the Department issued notice of a regular section 120.54(3) public hearing on two proposed rules limiting use of septic tanks under section 381.272(7) to subdivisions with two lots per "net usable acre," excluding lands devoted to common uses and bodies of water....
...officer. We affirm the hearing officer's order concluding that the Department's economic impact statement is insufficient. The record clearly demonstrates that the economic impact statement lacks the detail and thoughtful preparation contemplated by section 120.54(2)....
...ed rule. The economic impact statement, because of its method of preparation, is not competent evidence of the facts recited therein, in that it was not prepared by a person or persons with demonstrated ability to make the determinations required by Section 120.54(2), Florida Statutes....
...Hawkins,
379 So.2d 944 (Fla. 1979). Rule 10D-6.23(3)(g) represents an invalid exercise of delegated legislative power because the accompanying economic impact statement is inadequate. Without prejudice to the Department's reconsideration of the rule in section
120.54 rulemaking proceedings, the hearing officer's order is AFFIRMED in part and REVERSED in part....
CopyCited 35 times | Published | Florida 1st District Court of Appeal
...4 Davis, Administrative Law Treatise, § 24:1 (Second Edition, 1983). The Florida law of standing borrows much of its underpinnings from the federal law and thus arguably may be said to be subject to the same vagaries. [5] We have not overlooked the distinctions that may be made between rule-making under Section
120.54, and a rule challenge under Section
120.56....
CopyCited 34 times | Published | Supreme Court of Florida | 38 P.U.R.4th 123, 1980 Fla. LEXIS 4263
...r 120, Florida Statutes (1977). Petitioner first argues that the Commission has announced a rule, as that term is defined in section
120.52(14), but that in doing so the Commission failed to follow appropriate procedures for rulemaking as set out in section
120.54....
...To give credence to this argument would allow every agency total discretion in deciding whether to use rule making procedures in implementing changes in policy. All an agency would have to do to insulate itself from the rule making requirements of section 120.54, Florida Statutes (1977), would be to say that it is reinterpreting the law....
CopyCited 26 times | Published | District Court, S.D. Florida
...§
627.782(7) requires the Department of Insurance to review the promulgated rates for title insurance premiums "not less frequently than once every 3 years" and to revise the existing rates "if the results of the review so warrant." Moreover, rule making in Florida is governed by the Administrative Procedure Act, Fla. Stat. §
120.54....
CopyCited 26 times | Published | Florida 1st District Court of Appeal
...pursuant to §
120.68, Fla. Stat. (1975). HRS admitted that its Directive has never been adopted as a rule nor filed with the Department of State for publication in the Florida Administrative Code in accordance with § 120.041, Fla. Stat. (1973), or §
120.54, Fla....
CopyCited 24 times | Published | Florida 1st District Court of Appeal
...The APA requires specific findings of fact to support summary agency action. Section 120.59 requires an agency issuing an emergency order to "recite with particularity" the facts underlying "a finding that an immediate danger to the public health, safety, or welfare requires an immediate final order... ." Similarly, Section 120.54(8)(a)3, governing emergency rulemaking, requires an agency to publish "the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare ...." Although the order under review does not fit neatly under Section 120.59(3) or Section 120.54(8)(a)3, we perceive that the legislature has enacted in these sections a consistent standard intended to apply to all summary agency action subject to the APA....
...Nor do we see a significant difference *1165 between a finding that "the public interest will be irreparably harmed by delay in issuing an order" under Section 478.171(3), and a finding of an "immediate danger to the public health, safety, or welfare" under Section 120.54(9)(a)3 or .59(3)....
CopyCited 22 times | Published | Florida 1st District Court of Appeal
...[5] We conclude that the hearing officer erred in the interpretation and application of the "zone of interest" requirement in the light of the allegations made by the petition. It must be borne in mind that petitioners challenged the validity of the proposed rule, under Section 120.54(4)(a), [6] alleging that the proposed rule was an invalid exercise of delegated legislative authority....
...or adopted agency rules. In State, Department of Health and Rehabilitative Services v. Alice P.,
367 So.2d 1045, 1052 (Fla. 1st DCA 1979), footnote 2, this court recognized a physician as having satisfied the "substantially affected" requirement of Section
120.54(4) by showing that the Department's cut-off of funds for elective non-theraputic abortions decreased the number of patients served by the abortion clinic of which he was the director....
...We agree with the hearing officer's conclusion that his remedy lies with the Board of Pharmacy, but not in this rule challenge proceeding. AFFIRMED in part and REVERSED in part. ROBERT P. SMITH, Jr., C.J., and THOMPSON, J., concur. NOTES [1] The rule challenge proceeding was filed pursuant to Section 120.54(4)(b), Florida Statutes, within fourteen days after notice in the Florida Administrative Weekly of the Board of Optometry's intent to adopt the rule....
CopyCited 21 times | Published | Supreme Court of Florida | 2001 WL 298917
...independent administrative law judge from the Division of Administrative Hearings. See §
120.569, Fla. Stat. (1995). Moreover, any person with a substantial interest in any agency rule may petition that agency to adopt, amend or repeal a rule. See §
120.54(7), Fla....
CopyCited 21 times | Published | Supreme Court of Florida | 11 Fla. L. Weekly 124, 1986 Fla. LEXIS 1797
...Ch. 74-310, Laws of Fla. Section
120.68, Florida Statutes (1981), [2] provides for appeals from final administrative *820 action. Section
120.52(10)(d), Florida Statutes (1981), [3] declared prisoners were not parties for the purposes of obtaining a section
120.54(16) rule-making administrative hearing or a section
120.57 "substantial interest" administrative hearing....
...e final agency decision would not provide an adequate remedy. [3] The relevant part of §
120.52(10)(d), Fla. Stat. (1981), reads: Prisoners as defined in s.
944.02(5) shall not be considered parties for the purposes of obtaining proceedings under s
120.54(16) or s....
CopyCited 21 times | Published | Supreme Court of Florida | 2004 WL 792826
...(Emphasis supplied.) The key to the resolution of the narrow issue we confront is whether the word "approved" in section
316.1932(1)(a)(1) modifies "urine test." An "approved" test under this provision is one that is adopted through rule promulgation in accordance with the APA. See §
120.54(3), Fla....
...More recently, the Fourth District adopted the reasoning of Pierre and certified conflict with Bodden. See State v. Montello,
867 So.2d 613 (Fla. 4th DCA 2004), notice invoking discretionary jurisdiction filed, No. SC04-512 (Fla. Mar. 25, 2004). [7] Section
120.54(3) provides in pertinent part: (3) Adoption procedures....
...the Florida Statutes or the Laws of Florida being implemented, interpreted, or made specific. The notice shall include a summary of the agency's statement of the estimated regulatory costs, if one has been prepared, based on the factors set forth in s. 120.541(2), and a statement that any person who wishes to provide the agency with information regarding the statement of estimated regulatory costs, or to provide a proposal for a lower cost regulatory alternative as provided by s. 120.541(1), must do so in writing within 21 days after publication of the notice....
...The adopting agency shall file with the committee, at least 21 days prior to the proposed adoption date, a copy of each rule it proposes to adopt; a detailed written statement of the facts and circumstances justifying the proposed rule; a copy of any statement of estimated regulatory costs that has been prepared pursuant to s. 120.541; a statement of the extent to which the proposed rule relates to federal standards or rules on the same subject; and the notice required by subparagraph 1....
CopyCited 20 times | Published | Supreme Court of Florida | 1999 WL 1018661
...Lake Howell Water & Reclamation District,
274 So.2d 522 (Fla.1973). Here, we adopt the less restrictive of the two possible interpretations of section
120.52(8), because that is necessary to *380 avoid potential conflicts with presumptive rulemaking provisions in the Administrative Procedure Act. Section
120.54(1)(a), Florida Statutes (Supp.1996), states that "[r]ulemaking is not a matter of agency discretion." This statute places an affirmative duty on the part of all state agencies to codify their policies in rules adopted in the formal rulemaking process....
...g an absolutely unique application was permissible. While Professor Dore's treatise provides revealing insight into the original purpose of the declaratory statement provision, on *384 the other hand, respondents correctly note that sections
120.52,
120.54, and
120.565 (Supp.1996) must be read in pari materia....
...Section
120.52 provides a starting point for the analysis, supplying statutory definitions of the terms of art used in chapter 120. Section
120.52(15) defines an administrative rule as "each agency statement of general applicability that implements, interprets, or prescribes law or policy...." For its part, section
120.54(1)(a) provides that "[r]ulemaking is not a matter of agency discretion....
...t micro-manage Florida's administrative agencies and that the public's interest is served in encouraging agency responsiveness in the performance of their functions. See Consolidated-Tomoka Land,
717 So.2d at 80 (interpreting sections
120.52(15) and
120.54(1)(a) as "suggest[ing] that rulemaking authority is not restricted to those situations in which the enabling statute details the precise subject of a proposed rule") (emphasis added); Chiles,
711 So.2d at 154-55 (explaining that declaratory st...
...not have been considered on appeal. Id. If the respondents were of the view that the issue submitted for a declaratory statement could only be addressed by rulemaking, the procedure was reasonably open and available to accommodate the request under section 120.54(7), Florida *386 Statutes (Supp.1996)....
...Maher, How the Glitch Stole Christmas: The 1997 Amendments to the Florida Administrative Procedure Act, 25 Fla. St. U.L.Rev. 235 (1998); James P. Rhea & Patrick L. "Booter" Imhof, An Overview of the 1996 Administrative Procedure Act, 48 Fla. L.Rev. 1 (1996). [7] Although not directly implicated in this case, the addition of section 120.542 has other commentators lauding the inherent flexibility of the revised scheme: The new variance and waiver provision [section 120.542] may be the most significant element of the comprehensive revision of Florida's APA....
CopyCited 19 times | Published | Supreme Court of Florida | 2000 WL 1508541
...s placed on the record after an ex parte communication; the written decision of the administrative law judge presiding at the final hearing; and the official transcript of the final hearing. (E) In an appeal from a rule adoption pursuant to sections
120.54 (rule adoption) and
120.68(9), Florida Statutes, in which the sole issue presented by the petition is the constitutionality of a rule and there are no disputed issues of fact, the record shall consist only of those documents from the rulemakin...
...The agency's rulemaking record consists of all notices given for the proposed rule; any statement of estimated regulatory costs for the rule; a written summary of hearings on the proposed rule; the written comments and responses to written comments as required by sections 120.54 (rule adoption) and 120.541, Florida Statutes, (statement of estimated regulatory costs); all notices and findings made pursuant to section 120.54(4), Florida Statues, (adoption of emergency rules); all materials filed by the agency with the Administrative Procedures Committee pursuant to section 120.54(3), Florida Statutes, (rule adoption procedure); all materials filed with the Department of State pursuant to section 120.54(3), Florida Statutes, (rule adoption procedure); and all written inquiries from standing committees of the legislature concerning the rule....
...Subdivision (c)(2)(C) addresses the record on appeal from declaratory statement requests pursuant to section
120.565, while subdivision (c)(2)(D) lists the provisions of section
120.574(2)(d), Florida Statutes. Subdivision (c)(2)(E) of the rule addresses proceedings governed by sections
120.54 and
120.68(9), Florida Statutes. The definition of the rulemaking record tracks language in section
120.54(8), Florida Statutes....
CopyCited 19 times | Published | Florida 2nd District Court of Appeal | 1979 Fla. App. LEXIS 14633
...ed in the marketplace. The wisdom of that decision is not a matter of judicial concern. Finally, Petitioners argue that Respondent failed to comply with Florida's Administrative Procedure Act (Chapter 120) in two respects. They point to Section *520 120.54(2), Florida Statutes (1977), which requires that all state agencies prepare an economic impact statement prior to the adoption of any new rule....
...mic impact. Respondent also points out that this issue was not raised by Petitioners during Respondent's rulemaking proceedings. We decline to hold the rule invalid because of Respondent's failure to prepare the economic impact statement required by Section 120.54(2)....
CopyCited 19 times | Published | Florida 1st District Court of Appeal
...Recognizing that the Department's experience and our intervening constructions of the APA may account for the Department's discomfort with the unintended consequences of its rules, we reaffirm that agencies must honor their own substantive rules until, pursuant to § 120.54, Fla....
CopyCited 19 times | Published | Florida 1st District Court of Appeal | 8 Envtl. L. Rep. (Envtl. Law Inst.) 20
...Contrast Postal Colony Co., Inc. v. Askew, supra n. 16, in which we were concerned with the explicit statutory consequences of tardy adoption of land development regulations for a designated area of critical state concern. The rulemaking procedures of Section
120.54 adequately protected any "substantial interests" of the persons affected, and the Commission did not err in failing to provide them a formal proceeding under Sections
120.54(16) and
120.57....
...ALI Model Land Development Code § 7-201, note at 259-60 (1975) (emphasis added). If the immediacy or emergency nature of a critical state concern is thought to require designation power independent of priorities in a state plan otherwise required, standards for the exercise of emergency powers may be legislated. Cf. § 120.54(9), Fla....
...law" and "order agency exercise of discretion when required by law." The APA further provides that "[a]ny person regulated by an agency or having a substantial interest in an agency rule may petition an agency to adopt, amend, or repeal a rule... ." Section 120.54(5).
CopyCited 18 times | Published | Florida 1st District Court of Appeal
...The Department also appeals the hearing officer's determination that the statement of economic impact prepared by the Department was not an explicit statement delineating the short and long-term economic consequences of the rule, thus invalidating the rule. Rule 120.54(2)(c), Florida Statutes (1979)....
...Whatever the legislature does within its constitutional authority, no other department of the government may change, modify, alter, or amend. Thus we agree with the hearing officer's determination that Rule 4-43.03 extends, modifies and conflicts with Section
626.9541(15)(h), *912 and is therefore invalid under Section
120.54(2)(c)....
...prohibition expressed in section
626.9541(15)(h). The economic impact statement accompanying the rule is also adequate, and any defect in it is formal only, not impairing either "the fairness of the proceedings or the correctness of the action." Secs.
120.54(2)(a),
120.68(8), Fla....
...Tied House Evil statute."
388 So.2d at 1307, 1308. The court declared that "appellant has assumed a heavy burden of proof in its attack upon the Rule," noting that it was not a case of "policymaking by case-by-case adjudication," nor an appeal from section
120.54 rulemaking proceedings "in which the agency's duty is to supply a full and fair opportunity for affected persons to attack or comment on the proposed rule by debate and appropriate evidence, and our duty is to assure that the agency has done so."
388 So.2d at 1307....
...nces of each of us, are infallible. The economic impact statement Judge Joanos and I concur that the economic impact statement is quite sufficient. Any inadequacies do not impair "the fairness of the proceedings or the correctness of the action." Secs.
120.54(2)(a),
120.68(8), Fla....
...1st DCA 1982); Cortese v. School Board of Palm Beach County, supra,
425 So.2d at 558, fn. 12. The Department's economic impact statement is a seven-page document that systematically complies, paragraph by paragraph, with the four substantive requirements of section
120.54(2)(a), Florida Statutes (1979)....
...ng and leveling, collecting the same gross income from essentially the same insureds, the added costs will be inconsequential. See Division of Workers' Compensation, etc. v. McKee,
413 So.2d 805, 806 (Fla. 1st DCA 1982). *930 But more fundamentally, section
120.54(2)(a) cannot reasonably be read as requiring the Department to speculate on the amount of decreased or increased cost each company will incur, from this day forward, as a result of revising its classifications in a way the Department cannot predict and does not control....
...See also, particularly, the language of Section
627.0651(7), (8). [11] The hearing officer's final order contains the conclusion that the economic impact statement prepared by the Department does not delineate the short and long term consequences of the proposed rule. Although Section
120.54(2)(a), Florida Statutes (1977) required the hearing officer to consider the short and long term economic consequences of a proposed rule, it was amended in 1978, eliminating this requirement. Nevertheless, it is clear from a reading of the hearing officer's order that he correctly applied the criteria contained in the newly amended Section
120.54(2)(a), Florida Statutes (1979) in making his determination that the proposed rule's economic impact statement was inadequate....
...[10] Henry Cockburn, Memorials of His Time 232 (University of Chicago Press, 1974). [11] Id. at 232-33. [12] Id. at 233. [13] United States circuit judge Gerald Bard Tjoflat, quoted in The Third Branch: Bulletin of the Federal Courts, vol. 15, no. 4 (April 1983) at 1, 4. [14] § 120.54(2)(a), Fla....
CopyCited 18 times | Published | Supreme Court of Florida
...The agency concerned shall initiate the rule-making procedures provided by this act within ninety days after receiving such written request. If the agency concerned fails to initiate the rule-making procedures within ninety days, the operation of the rule shall be suspended. This provision shall control § 120.54(4), Florida Statutes....
CopyCited 17 times | Published | Florida 1st District Court of Appeal
...The petitioners asserted that the sanctions policies constituted rules under the definition of section
120.52(16), and that the policies and section
163.3184(11) were invalid delegations of legislative authority. The Commission denied that the policies were rules which were required to be adopted by section
120.54, or that the statute was unconstitutional....
...s, have all been consolidated for review. The issues for review under the rule challenges are as follows: I. The "sanctions policies" adopted by the Administration Commission constitute rules which were required to be adopted in accordance with Sec. 120.54, Fla....
...ions toward the municipalities. In the first point addressed to rule challenge, appellants argue that the "sanctions *406 policy" adopted by the Administration Commission on October 24, 1989 constitutes rules which must be adopted in accordance with section 120.54....
...1st DCA 1977), appeal after remand,
361 So.2d 199 (Fla. 1st DCA 1978), cert. denied,
368 So.2d 1370 (Fla. 1979). McDonald provides: The APA does not chill the open development of policy by forbidding all utterance of it except within the strict rulemaking process of section
120.54... . ... . ... [T]he Section
120.54 rulemaking procedures are imposed only on policy statements of general applicability, i.e., those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law......
CopyCited 17 times | Published | Florida 2nd District Court of Appeal
...ir discretion. Appellant makes another argument for reversal which we should address. He contends that we must invalidate the school board's action because the board failed to prepare an economic impact statement before adopting the attendance plan. Section 120.54(2), Florida Statutes (Supp....
CopyCited 17 times | Published | Florida 1st District Court of Appeal
...uthority. The petitioning licensees, aggrieved by the Division's proposed rule forbidding certain sexual conduct on the premises of licensees, properly initiated DOAH rule challenge proceedings in the course of the Division's rulemaking proceedings. Section 120.54(4), Florida Statutes (Supp....
...Sections
120.57, .68; State ex rel. Dep't of Gen. Serv. v. Willis,
344 So.2d 580 (Fla. 1st DCA 1977). In that event the party's prior failure to institute administrative rule challenge proceedings does not constitute failure to exhaust administrative remedies. Sections
120.54(4)(d), .56(4); Willis,
344 So.2d at 592. But rulemaking itself constitutes final agency action which an adversely affected "party" may judicially challenge by a timely petition for review. Sections
120.52(2), (14),
120.54,
120.68(1)....
...[3] That result, here urged by the Division against its own prospective interests, is not countenanced by the APA. Either the party challenging the rule or the agency, if aggrieved by the hearing officer's rule determination, may have judicial review under Section
120.68. That is the import of Section
120.54(4)(d), which provides that the hearing officer's order in such circumstances "shall be final agency action." The finality of agency action is the principal jurisdictional requisite to judicial review as of right....
...The Legislature has here declared in effect that "white" is "black." NOTES [1] Florida's Administrative Procedure Act (APA) there provides that any substantially affected person may challenge a proposed rule as "an invalid exercise of delegated legislative authority" in proceedings before a DOAH hearing officer. [2] Sec. 120.54(4)(d) provides: "The agency proposing the rule and the person requesting the hearing shall be adversary parties....
...proceedings." [3] "The hearing officer may declare the proposed rule wholly or partly invalid. The proposed rule or provision of a proposed rule declared invalid shall be withdrawn from the committee by the adopting agency and shall not be adopted." Section 120.54(4)(c)....
CopyCited 16 times | Published | Florida 2nd District Court of Appeal
...on at the time this complaint was filed on April 11, 1977 since until the time that it becomes effective it is only a proposed rule susceptible to withdrawal or modification by the agency. Riley-Field Co. v. Askew,
336 So.2d 383 (Fla. 1st DCA 1970); Section
120.54(1)-(12), Florida Statutes (1975)....
CopyCited 16 times | Published | Florida 1st District Court of Appeal
...meetings, hearings and workshops, etc., provides in part: "The agenda for a special meeting of a district school board under authority of S. 230.16 shall be prepared upon the calling of the meeting, but not less than 48 hours prior to such meeting." Section 120.54(1)(a), relating to the adoption procedures of an agency's rules, sets forth the procedure relating to notice of intent by an educational unit to adopt, amend or repeal any rule not described in subsection (8) of Section 120.54....
CopyCited 16 times | Published | Florida 4th District Court of Appeal | 1994 WL 26991
...The order additionally charges Witmer with one count of failure to report gratuities associated with races. There are no factual allegations whatsoever contained in the complaint/order that relate to this charge. This court has jurisdiction to review emergency administrative orders under section
120.54(9)(a)3, Florida Statutes (1993). Little v. Coler,
557 So.2d 157, 158 (Fla. 1st DCA 1990). The scope of review is limited to a determination of whether the emergency order complies with the requirements of section
120.54(9)(a)3....
...In its amended response, the department alleges that it had offered to set a hearing nine days after the suspension took effect, but that the petitioner rejected the offer and filed his petition for review instead. Of course, this offer would not cure the defect if the initial suspension was unlawful under section 120.54(9)(a)3....
...on of the applicable rules or statutes. The Department responds by arguing that it has alleged sufficient facts to put the petitioner on notice of the violations of which he has been charged. The Department cites no authority for its contention that section 120.54(9)(a)3 requires only notice pleading and such an interpretation would conflict with the requirement of specificity contained in both the section itself and the caselaw interpreting the section....
...rime or violation, only the commission of the substantive offense and/or conspiracy to commit the offense. Finally, the petitioner argues that the Department has not demonstrated that immediate suspension is necessary to protect the public interest. Section
120.54(9)(a)3 requires more than "a general, conclusory prediction of harm." Commercial Consultants,
363 So.2d at 1164....
...fidence in horseracing. The Department cites no authority that permits an emergency suspension on such an indirect and attenuated claim of possible economic injury. Under the Department's theory, it would be virtually exempt from the requirements of section 120.54(9)(a)3 because any violation of the pari-mutuel rules or statutes could upset the public confidence, which could lead to a possible loss of revenue....
...The Department cites no authority which would permit it to suspend a license upon a mere showing of propensity to commit violations. We therefore conclude that the Department's findings of immediate danger to the public welfare are not supported by specific facts and reasons as required by section 120.54(9)(a)3, Florida Statutes....
CopyCited 15 times | Published | Florida 1st District Court of Appeal | 1988 WL 19631
...Petitioners argue that the Board's order must be reversed on the authority of our decision in Florida Medical Association v. Department of Professional Regulation,
426 So.2d 1112 (Fla. 1st DCA 1983). We disagree. In that case, some of these same petitioners filed a petition in a section
120.54 rulemaking proceeding to challenge the validity of the Board's proposed rule 21Q-3.10....
...tification."
426 So.2d at 1115. Commenting that if petitioners were correct the proposed rule would authorize acts by optometrists that would be unlawful under chapters 458 and 459, we upheld their standing to challenge the validity of the rule in a
120.54 proceeding based on the alleged injurious effect on petitioners' economic interest, stating: We find, contrary to the ruling of the hearing officer, that the petition in behalf of the physician and the medical associations satisfies the "zone of interest" requirement....
...o represent similarly situated persons other than in the limited sense hereinafter discussed. [6] The propriety of that ruling is before this court in case number 88-142, so we intimate no view thereon in this opinion. [7] See, e.g., §§
120.53(5),
120.54(4)(a),
120.56(1),
120.565,
120.57(1), Fla....
CopyCited 15 times | Published | Florida 1st District Court of Appeal | 23 Wage & Hour Cas. (BNA) 998
...Matthews Corporation, a general contractor and a disappointed bidder on a public works project, [1] filed a petition for a *258 Section
120.56 hearing to determine whether certain wage rate guidelines were rules, and, if so, for a declaration they were invalid since they were not adopted in accord with Section
120.54, Florida Statutes (Supp....
CopyCited 15 times | Published | Florida 1st District Court of Appeal
...Our academic endeavors in attempting to label the action either rule or nonrule to determine whether or not it fell within section
120.52(14)'s definition of a rule have now been largely discarded. There are, however, costs exacted upon an agency which avoids the rulemaking procedure provided by section
120.54, chief among those being that the agency may be required repeatedly to defend its nonrule policy decisions in each case....
CopyCited 14 times | Published | Florida 1st District Court of Appeal | 1990 WL 129106
...tometrists were not even aware, did not constitute a waiver of their right to a clear point of entry. In McDonald v. Department of Banking and Finance,
346 So.2d 569, 577 (Fla. 1st DCA 1977), we said, Except when an agency acts by formal rulemaking (Section
120.54) or by declaratory statement concerning the applicability of a statute, rule or order (Section
120.565), all agency action, on appropriate challenge, will mature into an order impressed with characteristics of the APA's Section
120.57....
...nly." (Emphasis supplied). In reliance upon these definitions and the general scheme of Chapter 120, we have held that declaratory statements may not be used as a shortcut method of announcing a rule, thereby avoiding the rule adoption procedures of Section 120.54, Florida Statutes....
...ted to specific facts and a specific petitioner, and which would require a response of such a general and consistent nature as to meet the definition of a rule, the agency should either decline to issue the statement or comply with the provisions of Section 120.54 governing rulemaking....
...titioner in his particular set of circumstances only. The agency shall give notice of each petition and its disposition in the Florida Administrative Weekly, except that educational units shall give notice in the same manner as provided for rules in s.120.54(1)(a), and transmit copies of each petition and its disposition to the committee....
CopyCited 14 times | Published | Supreme Court of Florida | 1984 WL 914501
...The rule, as an action by an administrative agency, was adopted pursuant to the procedures specified in the Florida Administrative Procedures Act. §§
120.50-.73, Fla. Stat. (1981). On October 8, 1982, the PSC issued an order proposing rulemaking pursuant to section
120.54(1), Florida Statutes (1981), and notice of the proposed rulemaking was subsequently published in the Florida Administrative Weekly. On October 27, 1982, appellants requested a hearing on the proposed rule. On November 3, 1982, a hearing was held pursuant to section
120.54(3), Florida Statutes (1981)....
...Appellants and other interested parties participated in the hearing, where they were able to present evidence, cross-examine witnesses, and were generally able to inform the PSC of their views on the proposed rule. *1066 On November 19, 1982, the PSC hearing officer who presided over the section 120.54(3) hearing announced his recommended version of the rule....
...This result shall be multiplied by the equity dollars of the subsidiary, excluding its retained earnings. The resulting dollar amount shall be used to adjust the income tax expense of the utility. Appellants challenge the PSC rulemaking on several grounds. First, appellants claim that the record established at the section 120.54(3) hearing shows substantial evidence weighing against adoption of the rule and that, in fact, the record shows no evidence in support of the rule, thus making the PSC's adoption of the rule an arbitrary decision....
...The rulemaking in this case, as is all PSC rulemaking involving utility rates, is authorized by §
350.127(2), Fla. Stat. (1981), which provides the PSC the power to "adopt ... rules reasonably necessary to implement any law which it administers." Despite the section
120.54(3) hearing where interested parties made statements under oath and were subjected to limited cross-examination, we find that the rulemaking in this case retained its quasi-legislative nature. In this context, we agree with the characterization of a section
120.54(3) hearing set forth by the district court in Balino v....
...We find that the rule adopted by the PSC is neither arbitrary or capricious. The rule represents a valid implementation of a PSC policy choice regarding the treatment of a utility's income tax expense during ratemaking. Testimony put forth during the section 120.54(3) hearing shows that there is no single correct method of dealing with the income tax expense of a subsidiary-utility joining in the filing of a consolidated return....
CopyCited 14 times | Published | Florida 1st District Court of Appeal
...Since I find abundant legislative authority authorizing the Department to provide rules for the establishment, regulation and licensing of these facilities, I would reverse the order of the hearing officer and sustain as valid all the proposed rules. NOTES [1] Administrative Procedures Act, Section 120.54(4), Florida Statutes....
CopyCited 13 times | Published | Florida 1st District Court of Appeal
...These surveys include, but are not limited to, construction layout, topographic surveys, hydrographic surveys, quantity surveys, and special purpose surveys to the extent that all the aforementioned surveys relate to engineering services. Appellees filed a petition pursuant to section 120.54(4), Florida Statutes (1983), challenging the validity of the proposed rule as exceeding the Board's delegated authority because the rule includes in the definition of "engineering survey" acts and services which appellees say constitut...
...We agree with the conclusion in the final order that no agency has inherent rulemaking authority and that any rulemaking authority which the legislature may validly delegate to administrative agencies is limited by the statute conferring the power. Section 120.54(14), Florida Statutes (1983), provides: No agency has inherent rulemaking authority; nor has any agency authority to establish penalties for violation of a rule unless the Legislature, when establishing a penalty, specifically provides that the penalty applies to rules....
...and may, in certain instances, constitute a rule. Thus, where an agency's declaratory statements are of such a general and consistent nature as to meet the definition of a rule, the statements must be promulgated in accordance with the provisions of section 120.54 governing rulemaking....
CopyCited 13 times | Published | Florida 1st District Court of Appeal
...Williams, Tallahassee, for petitioners. Charles T. Collette, George L. Waas and David St. John, Tallahassee, for respondent. BOOTH, Judge. This cause is before us on petition for review of final agency action resulting from a rule-making proceeding pursuant to Florida Statute § 120.54(3)....
...led nursing care facility on an inpatient basis'." Pursuant to the mandate of the abovequoted order, HRS on June 17, 1977, caused a notice of proposed rule-making to be published. Petitioners filed a request for a hearing pursuant to Florida Statute § 120.54(3), which states: "If the intended action concerns any rule other than one relating exclusively to organization, procedure or practice, the agency shall, on the request of any affected person received within 14 days after the date of public...
...The hearing officer disallowed these requests on the grounds that the proceeding was a public hearing, not a formal adversary hearing, and that only comments or statements could be received. Faced with that ruling, petitioners requested the hearing officer to "draw out" the proceedings pursuant to Florida Statute § 120.54(16) which provides: "Rulemaking proceedings shall be governed solely by the provisions of this section unless a person timely asserts that his substantial interests will be affected in the proceedings and affirmatively demonstrates to the a...
...eparate proceeding under the provisions of section
120.57 ..." Rule 28-5.13 of the Model Rules of Procedure provide that the request for a drawout can be made "at any time prior to the conclusion of a public hearing conducted under the provisions of §
120.54." In the instant case, the hearing officer refused the request for a draw-out on the grounds: (1) That the request was not timely and (2) That petitioners' substantial interest would be protected by virtue of the fact that petitioners' counsel was present at the rule-making hearing....
...Thereafter, the hearing continued with several individuals representing the Florida Health Care Association and one member of the Department's staff making comments. A month later, on August 9, 1977, the amended rule was filed. This petition for review followed. The purpose of a rule-making hearing under § 120.54(3) is two-fold: (1) To allow the agency to inform itself of matters bearing on the proposed rules or modifications thereof, and (2) To allow the public, and specifically individuals and groups having particular interests and/or information, to participate in the rule-making process....
...s of any particular individual. [2] In its conduct of the hearing, the agency has the affirmative duty to inform itself to the fullest extent possible of the interest and problems of those who seek to present evidence and argument. The hearing under § 120.54(3) is not an adversary proceeding and is, in fact, presided over by a member of the agency's own staff....
...rily affect the manner of presentation allowable by the hearing officer. Within those limitations, however, participants must be afforded fair opportunity "to present evidence and argument ... appropriate *25 to inform it of their contentions." F.S. § 120.54(3)....
...What counts is the reality of an opportunity to submit an effective presentation, to assure that the Secretary and his assistants will take a hard look at the problems in the light of those submissions." (e.s.) Here, petitioners' contentions are that the definitions proposed and subsequently adopted after the § 120.54 proceedings are (1) incomplete because they fail to define all the criteria required to be defined in the order of HRS Secretary Page and (2) unworkable. The latter contention petitioners propose to support by examination and cross-examination of witnesses who must work with and apply the criteria for determining the "SNF patient." That type of presentation is not prohibited in a § 120.54 proceeding but is allowable within the discretion of the agency....
...In Bert Rogers Schools of Real Estate v. Florida Real Estate Commission,
339 So.2d 226 (Fla. 4th DCA 1976) petitioner attended the agency's rule-making hearing and requested a §
120.57 proceeding. The court ruled that the agency had failed *26 to expressly determine whether the §
120.54 proceeding was adequate to protect the interest asserted and, further, that there was nothing in the record which would support such a determination and therefore the denial of a §
120.57 proceeding was arbitrary. The court remanded the cause with directions that the petitioner be granted a hearing under §
120.57, and in so doing made the following statement concerning the basic problem of the §
120.54 hearing which is appropriate here: "[I]t seems apparent that everyone involved was somewhat in doubt as to the correct procedure to follow under the circumstances....
...ions which were the subject of the hearing. It is undisputed that the petitioners' substantial interests are affected by the proposed rule modification. The principal question to be resolved is whether those interests are adequately protected in the § 120.54 rule-making proceeding. The answer to that question depends, in part at least, on the extent to which petitioners are able, and are permitted, to make an effective presentation at the § 120.54 hearing....
...Petitioners do have the right, however, to present evidence and argument relative to their contentions and HRS has the duty to listen and inform itself. Respondent's obligation in this regard, as well as petitioners' rights, can only be satisfied by reconvening the §
120.54 proceeding. The HRS may thereafter make changes in, or additions to, the definitions in Rule 10c-7.32, or not, as is its prerogative. In the proceeding below the hearing officer ruled (1) that only comments or statements could be received at the §
120.54 hearing and (2) that petitioners did not have a right to a §
120.57 draw-out....
...On remand, both HRS and these petitioners will be afforded opportunity to correct these omissions. We find that, as specified in §
120.68(8), the fairness of the proceeding or the correctness of the action may have been impaired by a material error in procedure, and therefore, the cause is REMANDED with directions that the §
120.54 hearing be reconvened for further proceedings consistent herewith. MILLS, Acting C.J., and ERVIN, J., concur. ON PETITION FOR REHEARING BOOTH, Judge. On rehearing, HRS expressly takes no issue with this Court's holding that, as stated by HRS, "it committed a material error of procedure in the F.S. §
120.54 proceeding on the amendments to Rule 10c-7.32." HRS urges, however, that since the rule modifications have now become final, and were not held invalid by this Court, no purpose will be served by reconvening the §
120.54 hearing....
...In the alternative, HRS urges that this Court is without authority to order it to reinstate a rule-making proceeding. We disagree with both contentions. The import of our decision is that the agency must exercise good faith to afford interested parties an opportunity "to *27 present evidence and argument" under F.S. § 120.54(3)....
CopyCited 13 times | Published | Supreme Court of Florida
...The Commission in its petition propounds the argument of the Third District found persuasive in Roberson. The substance of this is that because the legislature passed section
120.52(10) [4] prohibiting prisoners from being parties to proceedings under section
120.54(16) or
120.57, [5] the legislature intended to preclude all prisoner actions from the purview of any part of chapter 120....
...This resulted in adding to the statute the language now relied on by the Commission. [10] *920 This Court's examination of the documents and materials in the archives supports the conclusion that section
120.52(10) does nothing more than what it says that it does: Prisoners cannot be parties to proceedings pursuant to section
120.54(16) and section
120.57....
...Its clarification is consistent with the Third District's decision in Roberson. Chapter 83-78 specifically states that prisoners, defined in section
944.02(5), may not seek review under section
120.68 of any agency action other than proceedings under section
120.54(3), (4), (5), or (9) or section
120.56, which relate to rulemaking procedures....
...ew of the final agency decision would not provide an adequate remedy. [3] The pertinent part of section
120.52(10) reads as follows: Prisoners as defined in s.
944.02(5) shall not be considered parties for the purposes of obtaining proceedings under s.
120.54(16) or s.
120.57, nor shall parolees be considered parties for these purposes when the proceedings relate to the revocation of parole. [4] Ch. 78-28, Laws of Fla. [5] Section
120.54(16) offers a party a hearing if the party's substantial interests are not served in the normal rule-making process....
...209 were companion measures introduced during the 1978 session. They were considerably broader in scope as to excluding prisoners from the purview of the APA, proposing: Prisoners as defined in s.
944.02(5) shall not be considered parties for the purposes of obtaining proceedings under s.
120.54(3)-(6) or (16), s....
...The Senate measure went to conference. It appears evident that neither body intended a broad exclusion from Chapter 120. [11] HB 420 and SB 209 also limited the rule-making process as to prisoners, affording them only the opportunity to submit written statements as to rules. Section 120.54(3) was amended by chapter 78-28, Laws of Fla., by the addition of the following: Prisoners, as defined in s....
CopyCited 13 times | Published | Florida 1st District Court of Appeal
...1978); State ex rel. Greenberg v. Florida State Board of Dentistry,
297 So.2d 628 (Fla. 1st DCA); cert. dismissed,
300 So.2d 900 (Fla. 1974). As such, administrative bodies have no inherent power to promulgate rules and must derive that power from a statutory base. Section
120.54(14), Fla....
CopyCited 13 times | Published | Florida 5th District Court of Appeal | 1996 Fla. App. LEXIS 6494, 1996 WL 339095
...Butler of Cobb Cole & Bell, Daytona Beach, for Appellee. THOMPSON, Judge. The Florida Department of Revenue ("DOR"), appeals a final order ruling that DOR's tax assessment procedure was void and of no effect, because it constituted a rule that had not been promulgated in accordance with section 120.54, Florida Statutes (1987)....
...for which the [Administrative Procedure Act] requires rules." Albrecht v. Department of Envtl. Regulation,
353 So.2d 883 (Fla. 1st DCA 1977), cert. denied,
359 So.2d 1210 (Fla.1978). Agency rules are required to be promulgated in accordance with the section
120.54, Florida Statutes (1987)....
...sessing taxes on multiple-use properties. There is no evidence presented that DOR applies the procedure on a case-by-case basis. Therefore, DOR's tax assessment procedure is an illicit rule, and not enforceable absent promulgation in accordance with section 120.54....
CopyCited 13 times | Published | Florida 1st District Court of Appeal | 1998 WL 422566
...Cross Key Waterways,
372 So.2d 913 (Fla.1978); Chiles v. Children A, B, C, D, E, and F,
589 So.2d 260 (Fla.1991). It follows that a state administrative agency has no authority to adopt rules apart from the authority delegated to it by the Legislature. This precept is incorporated in section
120.54(1)(e), Florida Statutes (Supp.1996), which states in material part that "[n]o agency has inherent rulemaking authority." Section
120.52(8), Florida Statutes (Supp....
...ted legislative authority: (a) The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter; (b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.; (c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.; (d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; (e) The rule is arbitrary or capricious; (f) The rule is not supported by competent substantial evidenc...
...Lake Howell Water & Reclamation District,
274 So.2d 522 (Fla.1973). Here, we adopt the less restrictive of the two possible interpretations of section
120.52(8), because that is necessary to avoid potential conflicts with presumptive rulemaking provisions in the Administrative Procedure Act. Section
120.54(1)(a), Florida Statutes (Supp.1996), states that "[r]ulemaking is not a matter of agency discretion." This statute places an affirmative duty on the part of all state agencies to codify their policies in rules adopted in the formal rulemaking process....
...If the lack of detail in the enabling statute could be said to prohibit an agency from adopting rules under section
120.52(8), the agency might not be able to carry out the very task the Legislature assigned to it. At the same time, the agency would be directed by section
120.54 to adopt rules to codify its policies. Hence, the Legislature could not have meant to condition rulemaking authority on the existence of a statute describing in detail the subject of each potential rule. When sections
120.52(8) and
120.54(1) are considered together, it appears more likely that the Legislature meant to limit rulemaking by channeling necessary legislative power within identifiable classifications within the enabling statute....
CopyCited 13 times | Published | Florida 1st District Court of Appeal
...ulgated emergency rules on or about September 1, 1977, and initiated proceedings for the adoption of permanent rules by publishing a notice of proposed amendments to the subject rules on October 14, 1977. A petition was thereupon filed pursuant to F.S. 120.54(4) on behalf of Alice P....
...ated by the Legislature and that the notice of the summary of the estimate of economic impact was incorrect or erroneous. The Department moved to dismiss the petition on the grounds of lack of standing and the unavailability of class actions in an F.S. 120.54(3) proceeding....
...onomic impact statement was inadequate and incomplete. The Department phrases the points argued in its briefs as follows: I. WHETHER THE HEARING OFFICER ERRED IN EXERCISING JURISDICTION AS TO A PETITION CHALLENGING PROPOSED AMENDMENTS TO RULES UNDER § 120.54(4), F.S., FILED BY FICTITIOUS PETITIONERS, ALICE P....
...E OF CHAMPERTY AND MAINTENANCE. VII. WHETHER THE HEARING OFFICER ERRED IN DECLARING INVALID THE DEPARTMENT'S ECONOMIC IMPACT STATEMENTS WHEN THE CHALLENGE THERETO WAS NOT CONTAINED IN THE ORIGINAL PETITION AND THE DEPARTMENT FOLLOWED THE COMMANDS OF § 120.54(2), F.S....
...Lewis, supra" (353 So.2d at page 1236) is equally applicable here. Respondents seek to distinguish the Jerry decision on the basis that the court was there concerned with a rule challenge pursuant to F.S.
120.56 whereas sub judice respondents were challenging a proposed rule in accordance with F.S.
120.54(4), urging that the test for standing to challenge a proposed rule is easier to meet than that for *1052 the challenge of an adopted rule....
...The thrust of respondents' argument is that although both statutes contain the "substantially affected" test, F.S.
120.56(2) requires that a petition challenging an adopted rule show the person seeking relief is substantially affected by the rule while F.S.
120.54(4)(b) requires only a showing that the challenger of the proposed rule would be substantially affected by it; concluding that the difference between the present tense "is" employed by the legislature in F.S.
120.56(2) as compared to the future tense "would be" contained in F.S.
120.54(4)(b) is significant and indicates a lower threshold of standing in the latter than in the former....
...and Central Florida Women's Health Organization, Inc. The query, then, is whether Janet Woe and Samuel J. Barr, M.D., who came into the proceeding by way of an amended petition and Jeannette R., as intervenor, all of whom meet the threshold test, [2] otherwise have standing. F.S. 120.54(4)(b) requires that one seeking an administrative determination of the invalidity of a proposed rule must file his petition of request with the Division *1053 within fourteen days after the date of publication of the notice required by subsection (1) of the statute. That fourteen day period is jurisdictional. Failure to file a valid petition or request within that fourteen day period is grounds for dismissal upon proper motion directed to jurisdiction. F.S. 120.54(4)(d) provides that: "Other substantially affected persons may join the proceeding as parties or intervenors on appropriate terms which will not substantially delay the proceedings." The Department contends that since Janet Woe and Samuel J....
...Barr, M.D., came into the case via an amended petition filed November 18, 1977 and Jeannette R. by motion to intervene filed November 23, 1977, both substantially beyond the fourteen day jurisdictional period for the contest of a proposed rule, they are without standing. We agree. Whether or not the above quoted portion of F.S. 120.54(4)(d) allowing other substantially affected person to join as parties or intervenors should be construed as permitting such joinder after expiration of the fourteen day jurisdictional period provided by paragraph (b) of the statute we need...
...There was therefore no validly existing proceeding to which the other persons (or corporations) could become parties or intervenors. The Department's several motions to dismiss should have been granted. We gratuitously observe that dismissal of a petition pursuant to F.S. 120.54(4) for failure to comply with the statutory jurisdictional requirement is not fatal to any rights of the challenger as to the proposed rule after its adoption because such dismissal for lack of jurisdiction has no affect upon the availability of a rule challenge pursuant to F.S....
...which are the subject matter of this proceeding). That information is attached as an exhibit to a Suggestion of Mootness. In view of the withdrawal of said proposed rules, whether they are "an invalid exercise of delegated legislative authority" (F.S. 120.54(4)(a)) is moot and the controversy here is not therefore now capable of repetition, yet evading review....
CopyCited 13 times | Published | Florida 1st District Court of Appeal
...Statutes (1975), for a determination that the Division's "minimum training and experience requirements" *325 are invalid because, having the effect of rules as defined in Section
120.52(14), they have not been adopted in rulemaking proceedings under Section
120.54....
...ubstantially affected person" and has standing to challenge agency policy for which rulemaking is required; and (3) the "minimum training and experience requirements" have the effect of rules and are invalid because they were not adopted pursuant to Section 120.54....
...We are not concerned in this proceeding with the results of that hearing. [2] Job titles and descriptions, like the minimum training and experience requirements, are included in the "class specifications," Fla. Admin. Code Rule 22A-1.04. While those titles and descriptions may also be rules requiring adoption under § 120.54, Harvey has not challenged the job titles and descriptions in this proceeding....
CopyCited 13 times | Published | Florida 1st District Court of Appeal
...DOT argues that, even though section
339.0805 does not specifically mention WBEs, such specificity is unnecessary because of the extensive legislative recognition of discrimination against women and the specific statutory programs to alleviate these past discriminatory practices. Section
120.54(7), Florida Statutes (1985), requires that each administrative rule be accompanied by a "reference to the section or subsection of the Florida Statutes ......
CopyCited 13 times | Published | Supreme Court of Florida | 1978 WL 391844
...Schwartz, in pro. per. ADKINS, Justice. We have for review by writ of certiorari an order of the Public Service Commission denying a petition of public counsel wherein he sought to have the Commission institute rule making proceedings pursuant to the provisions of Section 120.54, Florida Statutes (1975) for the purpose of adopting an amendment to the Commission's rule regarding agenda conferences (25-1.40, Florida Administrative Code) in the form proposed by public counsel....
...any restriction of public access to agency proceedings be supported by statutory authority. The Commission, in its order, disposed of this contention in the following language: "The petition does not appear to take into account the effect of all of Section 120.54(10), which in pertinent part provides: ......
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 2001 Fla. App. LEXIS 12894, 2001 WL 1098261
...The Trustees' notice of proposed rulemaking identified subparagraphs
253.03(7)(a) and (b), Florida Statutes, as statutory authority for promulgating a rule to preclude the use of sovereign submerged lands for mooring gambling vessels or boats transporting passengers to or from gambling vessels. See §
120.54(3)(a)1., Fla....
...evelopment concerning the acquisition, management, and disposition of state-owned lands so as to ensure maximum benefit and use. The Board of Trustees of the Internal Improvement Trust Fund has authority to adopt rules pursuant to ss.
120.536(1) and
120.54 to implement the provisions of this act....
...ssels through navigable water. B. The Trustees were also required to include in their notice of proposed rule "a reference to the section or subsection of the Florida Statutes or the Laws of Florida being implemented, interpreted, or made specific." § 120.54, (3)(a)1., Fla....
...of the following applies: (a) The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter; (b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.; (c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.; (d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; (e) The rule is arbitrary or capricious; (f) The rule is not supported by competent substantial evidenc...
CopyCited 12 times | Published | Florida 1st District Court of Appeal
...This court has held that before an agency has "review" jurisdiction, a timely petition for review must be filed. Conversely, where a petition is withdrawn, agency jurisdiction ceases to exist. In Orange County v. Debra, Inc.,
451 So.2d 868 (Fla. 1st DCA 1984), Debra Inc. petitioned for rulemaking under section
120.54(5), Florida Statutes, but then withdrew its petition before the agency could act. The court held that withdrawal of the petition divested the agency of jurisdiction to proceed. In State, Department of Health & *188 Human Services v. Alice P.,
367 So.2d 1045 (Fla. 1st DCA 1979), the court construed section
120.54(4)(b), Florida Statutes, as jurisdictional in nature....
CopyCited 12 times | Published | Supreme Court of Florida
...Their petitions were assigned numbers *714 BB-493 and BB-494 and were consolidated. When presented with motions to dismiss the petitions on the grounds that they were not filed within the time allowed in Fla. App. Rule 4.5(c)(1), the District Court of Appeal held that Section 120.54(10), (11), (12), Florida Statutes (1975), prevented the rule from becoming effective until twenty days after it was filed and that the petitions, which were filed within thirty days after the effective date, were timely....
...rule, that it is not "rendered" in the same way or with the same effect as decisions, orders, judgments and decrees and that we must judicially determine how our procedural rule will be applied in reviewing rules adopted by administrative agencies. Section 120.54, Florida Statutes (1975), describes the rulemaking procedure to be followed by the agencies....
...Had they been granted the right to adopt their rules without other administrative or legislative action, there would be no ambiguity or confusion. But the Legislature, in emphasizing its declaration that the agencies have no inherent rulemaking authority, [5] included Sections 120.54(10), (11) and (12), Florida Statutes (1975), requiring filing of proposed rules with the legislative Administrative Procedures Committee, extensive preadoption notice, filing with the Department of State after adoption and at least twenty days...
...Rule 1.3 so instructs us by providing: "Rendition ... means that it has been reduced to writing, signed and made a matter of record, or if recording is not required then filed." Agency action is final in rulemaking procedures when the rule has been adopted and filed. Nothing in Section 120.54(10), (11), (12), Florida Statutes (1975), requires the Legislature to interpose objections....
...NOTES [1] Riley-Field Co. v. Askew (City of North Key Largo Beach v. Askew ),
336 So.2d 383 (Fla. 1st DCA 1976). [2] Section
120.52(2), Fla. Stat. (1975). [3] Section
120.68(2), Fla. Stat. (1975). [4] Yamaha Int'l Corp. v. Ehrman,
318 So.2d 196 (Fla. 1st DCA 1975). [5] Section
120.54(13), Fla. Stat. (1975). [6] Cf. Dubin v. Department of Business Regulation,
252 So.2d 290 (Fla. 1st DCA 1971). [7] Section
120.54 was amended by the 1976 Legislature. A new Section
120.545 was added in 1976, which describes in detail the procedure for and the effect of objections by the legislative committee. These changes are not applicable to the rule here under review. [8] §
120.54(10)(a), Fla....
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 1977 Fla. App. LEXIS 16299
...ate concern, so designated in similar rulemaking a year earlier by Chapter 22F-5, Fla. Admin. Code, Chapter 380, Florida Statutes. The timely petition for review gives this court jurisdiction to review the agency rulemaking action. Although Sections
120.54(4) and
120.56 provide administrative proceedings for consideration of rules challenged as "an invalid exercise of delegated legislative authority," failure to so proceed does not constitute failure to exhaust administrative remedies. Sections
120.54(4)(d),
120.56(4); State ex rel....
...Willis,
344 So.2d 580, 591 (Fla. 1st DCA 1977). The APA explicitly makes agency determinations of "immediate danger, necessity, and procedural fairness" in the adoption of emergency rules judicially reviewable without an intervening administrative challenge. Sections
120.54(8)(a)3, .68, Florida Statutes (1975); Lewis v....
...refore deprived of a statutory predicate and could not become effective. The Administration Commission's effort on July 15, 1975, to accelerate the effective date of the regulations by emergency rules 22 FER-75-1 through 30 was likewise ineffective. Section 120.54(8), Florida Statutes (1975)....
...75. The 1974 Administrative Act (APA) then provided that proposed rules "... shall be adopted on filing with the Department of State and become effective 20 days after filing, on a later date specified in the rule, or on a date required by statute." Section
120.54(11), Florida Statutes (emphasis added.) [2] We cannot assent to the Administration Commission's argument, based on Section
120.54(11), that July 15, 1975 was the effective date "required by statute" for its Green Swamp regulations and, therefore, that the APA made the regulations effective five days earlier than "20 days after filing." We may agree that in Section
120.54(11) the phrase "or on a date required by statute" does not in context necessarily mean a date later than "20 days after filing," but the Green Swamp development regulations were not "required" by Section
380.05(12) to become effective June 15, 1975 in the sense the word "required" is used by Section
120.54(11)....
...ment regulation rule adopted in the thirteenth month after adoption of the designating rule; nor does it provide that land development regulations adopted in the eleventh hour of the twelfth month shall then take effect, the 20 day waiting period in Section 120.54(11) notwithstanding....
...On July 15, 1975, meeting in apprehension of the effect of Section
380.05(12), the Administration Commission adopted the text of the Green Swamp land development regulations as emergency rules 22 FER-75-1 through 30. Emergency rules are authorized by Section
120.54(8)(a), subject to procedural guaranties, "[i]f an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action......
...The prayer of the petition for review is granted. RAWLS, Acting C.J., and MILLS, J., concur. ON PETITION FOR REHEARING SMITH, Judge. For the first time in this proceeding, by petition for rehearing, the Administration Commission explains that an intervening rule challenge proceeding under Section 120.54(3), Florida Statutes (Supp....
...ted grounds and that, after the timely institution of rule challenge proceedings before the Division of Administrative Hearings, "no rule shall be adopted" by filing with the Department of State "until the hearing officer has rendered his decision." Section 120.54(4)....
...ertake statewide comprehensive planning," was and is the "state land planning agency" charged with Chapter 380 responsibilities. Sections 20.31(3)(e), 23.011 et seq.,
380.031(16), Florida Statutes (1975). [2] The same provision is made by renumbered Section
120.54(12), Florida Statutes (Supp....
...APA amendments in 1976 added purpose to the 20-day wait period by permitting agency changes and even summary withdrawal of adopted rules in response to objections by the legislature's administrative procedures committee. Chapter 76-131, Laws of Florida, §§ 120.54(12), .545, Florida Statutes (Supp....
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 4 Educ. L. Rep. 1351
...Subsequently appellant's major professor signed the "Final Term Degree Clearance Form," but the department chairman refused to allow appellant to take the Ed.D. degree and revoked the options set out above. The order denying the petition correctly noted that the procedures were governed by §
120.57, Florida Statutes, §
120.54(10), Florida Statutes, and Fla....
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 1979 Fla. App. LEXIS 14026
...partment then have a rule, such as that adopted in January 1977, formalizing its emerging policy. As a practical matter, the personal notice which the Department intended for Mr. Walker was superior to the constructive notice afforded by rulemaking, Section 120.54; and the hearing opportunity thus offered was quite as broad as that which any signowner, later receiving notice of the 1977 rulemaking, would have had in Section 120.54 rulemaking proceedings....
CopyCited 11 times | Published | Florida 1st District Court of Appeal
...Graham Carothers and Michael Pearce Dodson of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee-respondent. SMITH, Judge. 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....
...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....
...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....
...ool bus transportation to students who live within two miles of their assigned school was invalid because it was a *734 rule, section
120.52(14), Florida Statutes (1977), which was not promulgated in accordance with the Administrative Procedure Act. Section
120.54(1), Florida Statutes (1977)....
CopyCited 11 times | Published | Florida 1st District Court of Appeal | 1991 Fla. App. LEXIS 4783, 1991 WL 87671
...the agency, and imposes requirements or information not specifically required by statute or by existing rule. The letter, therefore, constitutes a rule within the meaning of the law and all agency rules must be adopted according to the procedures of § 120.54, Fla....
CopyCited 11 times | Published | Florida 1st District Court of Appeal
...*1246 SMITH, Acting Chief Judge. Petitioners, a group of voluntary associations of home building contractors, petition for review of Emergency Rule 8 CER 77-26, Fla. Admin. Code, adopted by the Division of Labor, Florida Department of Commerce, pursuant to Section 120.54(9), Florida Statutes (Supp....
...The emergency rule was adopted effective November 7, 1977, for a 90-day period, [1] after petitioners challenged proposed amendments to the Division's permanent rules, thus staying adoption of the permanent rule amendments until after the hearing officer rules on petitioners' challenge. § 120.54(4), Fla....
...ect on the statewide apprenticeship program and is unfair to applicants whose applications are pending." Fla. Admin. Weekly, Nov. 10, 1977 at 24. Petitioners here challenge the sufficiency of the Division's statement justifying emergency rulemaking. Section 120.54(9)(a)3, Florida Statutes (Supp....
...The Division's statement concerning the emergency in this matter is subject to grave doubt. Its generality is augmented *1247 by factual recitals in the Division's brief, but we cannot properly consider those recitals as having been made by the agency in the statement required by Section 120.54(9)(a)3....
...An agency's assumption of emergency powers in the absence of a bona fide emergency violates basic rights of due process, and constitutes a usurpation of power. Fuller v. Gardner,
138 Fla. 837,
190 So. 442 (1939). Here, there was no emergency allowing for the adoption of emergency rules under Florida Statute §
120.54(9). Respondent also failed to publish adequate notice as *1248 required by §
120.54(9)(a)(3). Postal Colony Co., Inc. v. Askew,
348 So.2d 338 (Fla. 1st DCA 1977). The emergency rule is substantially identical to the proposed permanent rule amendment which is held in abeyance under Florida Statute §
120.54(4)(c) pending court determination of validity. Respondent has simply used its emergency rule-making power to avoid the effect of §
120.54(4)....
...The majority holds that the "escape clause" of this patently invalid rule can validly operate to deny a party standing to challenge to the rule. This holding eliminates any possible judicial review of an emergency rule which includes an "escape clause," and is contrary to Florida Statute § 120.54(9)(a)(3), which provides: "The agency's findings of immediate danger, necessity and fairness shall be judicially reviewable. " (e.s.) The escape clause stands or falls with the rule itself, and cannot operate to prevent challenge under § 120.54(9) by a party otherwise directly affected. I respectfully dissent. NOTES [1] "An emergency rule adopted under this subsection may not be effective for a period longer than 90 days and shall not be renewable." § 120.54(9)(c), Fla....
CopyCited 11 times | Published | Florida 1st District Court of Appeal
...incomplete. The legislative scheme delays the effectiveness of agency rulemaking action in order to allow objections by the Administrative Procedures Committee and their resolution by agency *385 modification or withdrawal of the proposed rule. Sec. 120.54(10), (11), (12), F.S....
...of a petition for review within 30 days after the effective date of an agency rule, whether it becomes effective on a date required by statute, or by the expiration of 20 days after its filing in the Department of State, or otherwise by operation of § 120.54, F.S. 1975. The complexities of § 120.54(10), (11) and (12) which fix the effective date of an agency rule may seem a stumbling block to the lawyer, wary of the doctrines of rendition and finality, who hopes to petition for certiorari review neither too soon nor too late for jurisdictional purposes....
...o review by certiorari. Compare Williams v. State,
324 So.2d 74, 79 (Fla. 1975). The petitions for review here were filed within 30 days after Rule 22F-13 became effective by the passage of 20 days after its filing with the Department of State. Sec.
120.54(11), F.S....
CopyCited 11 times | Published | Supreme Court of Florida
...al are prohibited from considering further the certiorari petitions filed by American and Mariner. ADKINS, C.J., and BOYD and OVERTON, JJ., concur. McCAIN, J., dissents. NOTES [1] Emergency rules may be promulgated by the Department of Banking under Section 120.54(8), Fla....
...new act, as Section
120.72(2) allows. [15] See Section
120.72, Fla. Stat. (1974). It is also clear that judicial review of the rule is governed by the new act and available in the First District Court of Appeal. See Sections
120.68(2),
120.52(2) and
120.54(8), Fla....
CopyCited 11 times | Published | Florida 1st District Court of Appeal | 1989 WL 15937
...Salerno, Tallahassee, for appellee Florida State Lodge, Fraternal Order of Police, and for amicus curiae, Florida State Fireman's Ass'n. ZEHMER, Judge. This consolidated appeal arises out of an administrative proceeding initiated by the Florida League of Cities (League) and the City of St. Petersburg (City) pursuant to section 120.54, Florida Statutes (1985), to challenge the validity of more than two dozen rules proposed for adoption by the Department of Insurance (Department)....
...of certain of the proposed rules. [4] The petition *854 alleged that the identified rules exceeded the Department's legislatively delegated authority and that the Department had failed to provide an adequate economic impact statement in violation of section 120.54(2)(b)....
...invalid as beyond delegated legislative authority. IV. ECONOMIC IMPACT STATEMENT Appellants' remaining point on appeal challenges the sufficiency of the Department's economic impact statement accompanying the proposed rules under review pursuant to section
120.54(2). The parties stipulated, and the hearing officer found, that the application of sections
175.071,
175.081,
175.191,
175.231,
175.261,
175.333 and
175.361 to local law plans would have a significant economic impact, as defined in section
120.54, on a number of local law plans, including those of the City....
...*870 SHIVERS, J., and PEARSON, TILLMAN (Ret'd), Associate Judge, concur. NOTES [1] Proposed rules 4-14.036 and 4-54.027 were held invalid, and the Department of Insurance does not contest that ruling on appeal. The Department withdrew these rules pursuant to section 120.54(4)(c) and gave appropriate notice in the April 10, 1987 issue of Florida Administrative Weekly....
...The League is required to work for the effective administration of municipal government on behalf of its member municipalities, and thus it is substantially affected by the proposed rules. Appellees do not contest the League's standing to appeal and maintain this rule challenge proceeding pursuant to section 120.54....
...[7] "This chapter hereby establishes minimum standards for the operation and funding of municipal firefighters' pension trust fund systems and plans." [8] "This paragraph shall apply to all boards of trustees and participants." [9] In Capeletti, we stated: Section 120.54(7), Florida Statutes (1985), requires that each administrative rule be accompanied by a "reference to the section or subsection of the Florida Statutes ......
CopyCited 11 times | Published | Florida 1st District Court of Appeal
...Further, the agency requires that CSE Policy Clearance 79-6 be followed without discretion by every AFDC office in Florida. CSE Policy Clearance 79-6 has every characteristic of a rule as defined by Section
120.52(14), Florida Statutes, except that of promulgation pursuant to the Administrative Procedure Act, Section
120.54, Florida Statutes....
CopyCited 11 times | Published | Florida 4th District Court of Appeal
...Petitioner's contentions are two-fold: (1) that he was denied procedural due process under statutory requirements and the Constitutions of the United States and the State of Florida, and (2) that the order of emergency suspension of his license failed to demonstrate an immediate danger and necessity as required by Section 120.54(9)(a), Florida Statutes (1977)....
...ts for the retention of the license. (6) If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension of a license, it shall show compliance in its order with the requirements imposed by subsection 120.54(9) on agencies making emergency rules. Summary suspension may be ordered, but a formal suspension or revocation proceeding under this section shall also be promptly instituted and acted upon." (Emphasis added). The requirements of Section 120.54(9)(a) are: "If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger by any procedure which is fair under the circumstances and necessary to protect the public interest, provided that: 1....
...one county or a part thereof, shall be published in the first available issue of the Florida Administrative Weekly. The agency's finding of immediate danger, necessity, and procedural fairness shall be judicially reviewable." Petitioner argues that Section 120.54(9)(a)(1) guarantees the procedural protection granted under other statutes and cites us to Section 459.14(7) which requires at least 20 days written notice before an osteopathic physician's license can be suspended or revoked, even temporarily....
...Were it not for the requirement of prompt, formal proceedings subsequent to the temporary suspension, we might hold otherwise. Petitioner next contends that the order of emergency suspension fails to demonstrate the requisite "immediate danger" and "necessity" as required by Florida Statute, Section 120.54(9)(a)....
CopyCited 10 times | Published | Florida 1st District Court of Appeal
...DER. During the course of this meeting, the ERC approved and adopted the rules with certain changes. These changes were duly noticed in the Florida Administrative Weekly. In November 1986, timely petitions were filed against DER and ERC, pursuant to Section 120.54(4), Florida Statutes, challenging the validity of the proposed rules....
...ry and capricious. Critical to our determination of this issue is our determination of the more significant issue concerning the appropriate standard of review to be applied by an appellate court to the findings of a hearing officer arising out of a Section 120.54(4) rule challenge proceeding. DER and intervenor Concerned Citizens maintain that in reviewing a hearing officer's findings regarding the validity of an agency's proposed rule pursuant to a Section 120.54(4) rule challenge, the appropriate standard of review to be applied by the appellate court is whether there was competent substantial evidence before the agency to support its rule....
...In the first step of the process, the agency must draft the entire text of the proposed rule [4] and a supporting economic impact statement, initiated by either the agency itself or petition for rulemaking. [5] Next, the agency is required to give public notice of proposed rulemaking, both by distribution and publication. § 120.54(1)(a) and (b), Fla....
...This notice of the agency's intended action must set forth a short and plain explanation of the purpose and effect of the proposed rule, the specific legal authority under which its adoption is authorized, and a summary of the estimate of the economic impact of the proposed rule on all persons affected by it. § 120.54(1), Fla....
...o give affected persons an opportunity to present evidence and argument on all issues under consideration appropriate to inform the agency of their intentions on any affected person's request which is received within 21 days after publication of the Section 120.54(1) notice. § 120.54(3)(a), Fla....
...uch a hearing or to consider the submitted materials without holding a public hearing. However, if requested by any affected person, the agency must hold a public hearing on the rule. [7] If a person participating in the rulemaking proceedings under Section 120.54(3) has substantial interests that will be affected by those proceedings, that person is entitled to a proceeding conducted in a manner which adequately protects his substantial interests. § 120.54(17), Fla....
...itted to "draw out" of the rulemaking proceeding and to have commenced a separate proceeding conducted in accordance with Section
120.57. If a separate proceeding is commenced, upon its conclusion the rulemaking proceeding is required to be resumed. §
120.54(17), Fla....
...The failure of the agency to exercise its discretion in this regard is subject to immediate judicial review. See Bert Rogers Schools of Real Estate v. Florida Real Estate Commission,
339 So.2d 226 (Fla. 4th DCA 1976). However, the denial by an agency of a request to suspend a Section
120.54(3) rulemaking hearing and convene a Section
120.57 proceeding, as provided in Section
120.54(17), is not final agency action. Neither is it intermediate action cognizable under Section
120.68(1). Corn v. Department of Legal Affairs,
368 So.2d 591 (Fla. 1979). Florida's APA also provides for challenges to proposed rules under Section
120.54(4). [9] Section
120.54(4) entitles "[a]ny substantially affected person" to seek "an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority." The phra...
...the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: *1267 (a) The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54; (b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7); (c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7); (d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or (e) The rule is arbitrary or capricious. Procedurally, the request seeking the determination must be in writing and filed with DOAH within 21 days after the Section 120.54(1) notice of hearing is filed. The writing must state with particularity the provisions challenged with sufficient facts and explanation in support of the request and facts sufficient to show that the person challenging would be substantially affected. § 120.54(4)(b), Fla....
...Within ten days of receipt, if the division director determines that the petition has complied with the above requirements, a hearing officer must be assigned to conduct a hearing within 30 days thereafter and shall render a decision with reasons in writing 30 days after the hearing. § 120.54(4)(c), Fla. Stat. Other substantially affected persons can join or intervene unless there would be substantial delay. § 120.54(4)(d), Fla....
...The proposed rule or part of the proposed rule declared invalid must be withdrawn by the agency and cannot be adopted. In the event part of a proposed rule is declared invalid, the agency may, in its discretion, withdraw the proposed rule in its entirety. § 120.54(4)(c), Fla. Stat. While the Section 120.54(4) proceeding is pending, the agency may continue with its rulemaking procedures but cannot adopt the rule. No rule shall be filed until 28 days after the Section 120.54(1) notice is published or until the hearing officer has rendered his decision. Notice of a decision declaring a proposed rule invalid must be published in the first available issue of the Florida Administrative Weekly. § 120.54(4)(c), Fla....
...Furthermore, as a legislative check on legislatively created authority, [10] an agency is required to file proposed rules with the Administrative Procedures Committee [11] at least 21 days prior to the proposed adoption, subject to certain exceptions. To facilitate committee review, Section 120.54(11) requires agencies to file a copy of the proposed rule, a justification statement, a federal standards statement, an economic impact statement, and a copy of the Section 120.54(1) notice. Section 120.54(11)(a), Florida Statutes, provides in relevant part as follows: (11)(a) The adopting agency shall file with the committee, at least 21 days prior to the proposed adoption date, a copy of each rule it proposes to adopt; a detailed writt...
...shes standards more restrictive than federal standards or a statement that the proposed rule is no more restrictive than federal standards or that a federal rule on the same subject does not exist; and the notice required by section (1). Pursuant to Section 120.545, the Administrative Procedures Committee is required to examine each proposed rule, with some exceptions, and may examine any existing rule, for the purpose of determining whether: (a) The rule is an invalid exercise of delegated legi...
...accurately inform the public of the economic effect of the rule. The committee has no power to nullify a proposed rule or an existing rule, but the committee can issue objections, which can affect the subsequent conduct of the rulemaking proceeding. § 120.545(2), Fla. Stat. An objection to the proposed rule, if not responded to by the agency, effectuates a withdrawal of the proposed rule. § 120.545(6), Fla. Stat. After these procedures have run their course, the agency once more enjoys procedural freedom, as far as the APA is concerned, when making the final decision to adopt a rule. Section 120.54(11)(b) requires the rule and supporting materials to be filed, as the culmination of the rulemaking process. [12] A proposed rule is adopted upon being filed with the Department of State and is effective 20 days thereafter or as specified in the rule or by the statute. § 120.54(13), Fla....
...Stat. While the agency enjoys only a limited right to adopt a rule that differs from the proposed rule, the agency is completely free to withdraw the proposed rule and embark on completely new rulemaking proceedings with a different proposed rule. § 120.54(13)(b), Fla....
...For agency action arising out of the rulemaking process, there are essentially two primary avenues of judicial review permitted under the APA: (1) direct appeal from an agency's adopted rule; and (2) appeal from a hearing officer's final determination arising out of a rule challenge proceeding pursuant to either Section
120.54(4) or
120.56....
...The APA, of course, defines reviewable final agency action in several instances. Rules are adopted and considered "final agency action" when they are filed with the Department of State, although they are not effective until 20 days after being filed, and as such are subject to judicial review under Section
120.68. See §
120.54(13)(a), Fla. Stat.; §
120.52(2), Fla. Stat. ("agency action" includes both orders and rules entered or adopted by the agency); §
120.68(5)(b), Fla. Stat. (record for judicial review shall include "materials considered by the agency under §
120.54, if review is sought of proceedings under that Section"); Florida Administrative Commission v....
...Inc. v. Division of Beverage,
348 So.2d 934, 936 (Fla. 1st DCA 1977) (court held that rulemaking itself constitutes final agency action which an adversely affected party may judicially challenge by a timely petition for review, §§
120.52(2), (14),
120.54,
120.68(1), and, upon the Division's adoption of the proposed rule, petitioners as parties to the rulemaking proceedings would be entitled to judicial remedies under the APA); Postal Colony Co., Inc....
...v. Southwest Florida Water Management District,
534 So.2d 419 (Fla. 5th DCA 1988) (issue of authority for direct appeal addressed in f.n. 1, wherein the court held: "This is a direct appeal from an agency's final action consisting of rulemaking. See §
120.54 (the Administrative Procedure Act), Fla. Stat. (1987). We have jurisdiction, Fla.R.App.P. 9.030(b)(1)(c)."). Further, the hearing officer's determination on a challenge to a proposed or adopted rule is final agency action under Sections
120.54(4)(d) and
120.56(5), and as such is subject to judicial review by either the agency or the challenging party under Section
120.68(1). See 4245 Corporation, Mother's Lounge, Inc. v. Division of Beverage,
348 So.2d 934 (Fla. 1st DCA 1977). Moreover, the failure to elect to challenge a proposed rule as provided for in Section
120.54(4), or an adopted rule under
120.56, does not constitute a failure to exhaust administrative remedies so as to frustrate the institution of a direct appeal from an agency's adopted rule. §
120.54(4)(d), Fla. Stat. [13] ; §
120.56(5), Fla. Stat.; Postal Colony Co., Inc. v. Askew,
348 So.2d 338 (Fla. 1st DCA 1977) (failure to pursue administrative proceedings under Sections
120.54(4)(d) and
120.56(5) to challenge rules as invalid exercise of delegated legislative authority did not constitute a failure to exhaust administrative remedies); see also General Telephone Co....
...1st DCA 1984). In these latter two cases, the Florida Supreme Court and this court entertained direct appeals from an agency's final action of adopting a rule without requiring the rule challengers to have pursued administrative remedies via Sections
120.54(4) or
120.56(1). The right to seek a determination of the validity of a proposed or adopted rule before a hearing officer is nothing more than an optional administrative alternative provided by the APA. See §§
120.54(4)(a) and
120.56(1), Fla....
...The standard of review to be applied by this court to administrative appeals arising out of the rulemaking process is dependent upon the route by which the administrative appeal reaches us. The standard of review to be applied on a direct appeal from an adopted agency rule, arising out of the rulemaking proceedings under Section
120.54(3), is different from the standard to be applied on an appeal from a hearing officer's determination arising out of a Section
120.54(4) or
120.56 rule challenge proceeding....
...Florida Public Service Commission,
446 So.2d 1063 (Fla. 1984). The proceedings which culminate in the adoption of an agency's rule are generally legislative in nature, and are not adversarial. These proceedings consist of the agency's informal rulemaking proceedings conducted pursuant to Section
120.54(3)(a) [14] . Proceedings conducted pursuant to Section
120.54(3)(a) are not the same type of proceedings as are provided under Section
120.57 when an agency determines the substantial interests of a party. The rights of a particular individual are not adjudicated in this type of proceeding. Rather, Section
120.54(3) rulemaking proceedings are information-gathering proceedings, much like legislative committee proceedings where testimony is heard, which proceedings are relatively informal. The purpose of the rulemaking proceedings authorized by Section
120.54(3) is twofold: (1) to allow the agency to inform itself about the positions and problems of those who seek to present evidence and argument; and (2) to allow the public and others with particular interest in or information about the proposed rule to participate in the formulation of agency policy. See Balino v. Department of Health and Rehabilitative Services,
362 So.2d 21 (Fla. 1st DCA 1978). The intention of the Section
120.54(3) proceeding is to facilitate the exchange of information and not to be restrictive through the technical use of evidentiary rules....
...r oral replies of interested parties to the agency's proposals and to all the materials considered by the agency; and (3) the final rule accompanied by a statement both justifying the rule and explaining its normative and empirical predicates. See §§ 120.54(3)(a), (6) and (11)(a), Fla....
...edures are required. In applying this standard of review, the focal point should be on the administrative record already in existence. See Camp v. Pitts,
411 U.S. 138,
93 S.Ct. 1241,
36 L.Ed.2d 106 (1973). Whereas a rulemaking proceeding pursuant to Section
120.54(3)(a) is quasi-legislative in nature and as such is subject to an arbitrary and capricious standard of review, a rule challenge proceeding pursuant to either Section
120.54(4) or
120.56 is quasi-judicial in nature and as such is subject to a competent substantial evidence standard of review. Hearings under Sections
120.54(4) and
120.56 are conducted in the same manner as adjudicatory hearings under Section
120.57. [20] §§
120.54(4)(d) [21] *1274 and
120.56(5), Fla....
...Moreover, contrary to DER's assertions, it is the hearing officer's findings which are being reviewed by this court under the above standard not the agency's rules. The hearing officer's determination regarding a challenge to a proposed rule constitutes final agency action under Section
120.54(4)(d), and as such is subject to judicial review under Section
120.68(1). [22] See 4245 Corporation, Mother's Lounge, Inc. v. Division of Beverage,
348 So.2d 934 (Fla. 1st DCA 1977). In summary, when reviewing a hearing officer's determination arising out of either a Section
120.54(4) or
120.56 quasi-judicial rule challenge proceeding, the appellate court's standard of review is whether the hearing officer's findings are supported by competent substantial evidence. §
120.68(10), Fla. Stat. [23] On the other hand, when reviewing on direct appeal an agency's adopted rule arising from a quasi-legislative rule enactment proceeding conducted pursuant to Section
120.54(3)(a), the appellate court's standard of review is that the rule should be sustained as long as it is reasonably related to the purposes of the enabling legislation and is not arbitrary or capricious....
...The drafting sessions of a collegial agency head or committee appear to be "workshops" or "meetings" subject to the requirements of Section
120.53(1)(d). These workshops or meetings provide a significant opportunity for comment prior to the formal proposal of rules. [5] Section
120.54(5) allows any person regulated by an agency or substantially interested in an agency rule to petition an agency to adopt, amend or repeal a rule. Within 30 days, the agency must initiate rulemaking proceedings or deny the petition in writing. [6] Section
120.54(3)(a), Florida Statutes, provides: (3)(a) If the intended action concerns any rule other than one relating exclusively to organization, procedure, or practice, the agency shall, on the request of any affected person received within 21...
...[7] While these provisions offer ample opportunity for public comment as to the merits of a proposed rule, they all occur after the proposed rule has been drafted. Modification of proposed rules as a result of any comment received pursuant to these provisions is governed by Section 120.54(13)(b), Florida Statutes. [8] Section 120.54(17), Florida Statutes, provides: (17) Rulemaking proceedings shall be governed solely by the provisions of this section unless a person timely asserts that his substantial interests will be affected in the proceeding and affirmatively...
...Similarly situated persons may be requested to join and participate in the separate proceeding. Upon conclusion of the separate proceeding, the rulemaking proceeding shall be resumed. [9] Section
120.56 provides for a similar challenge against an existing rule. [10] See Section
120.545, Florida Statutes. [11] This committee, along with its membership, powers, and duties, is described in Section 11.60, Florida Statutes. [12] Section
120.54(11)(b), Florida Statutes, provides in relevant part: (b) If the adopting agency is required to publish its rules in the Florida Administrative Code, it shall file with the Department of State three certified copies of the rule it proposes to adopt, a summary of the rule, a summary of any hearings held on the rule, and a detailed written statement of the facts and circumstances justifying the rule. [13] Section
120.54(4)(d), Florida Statutes, provides: (d) Hearings held under this provision shall be conducted in the same manner as provided in s....
...120.57 except that the hearing officer's order shall be final agency action... . Failure to proceed under this subsection shall not constitute failure to exhaust administrative remedies. This language is identical to the language used in Section
120.56(5). [14] Section
120.54(3)(a) provides as follows: (3)(a) If the intended action concerns any rule other than one relating exclusively to organization, procedure, or practice, the agency shall, on the request of any affected person received within 21 days aft...
...In some cases, oral presentations may be allowed. Id. § 553(c). [18] This language is equally applicable to informal rulemaking proceedings. [19] Formalized adjudicatory methods are clearly nonessential for purposes of rational rulemaking. There are procedures set forth in Section 120.54 expressly designed to provide the administrator access to all data, criticisms, suggestions, alternatives, and contingencies relevant to his decisions....
...Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. This paragraph applies only to proceedings under s.
120.57. [21] Section
120.54(4)(d) provides in pertinent part: Hearings held under this provision shall be conducted in the same manner as provided in s....
...[22] Section
120.68(1) provides in pertinent part: (1) A party who is adversely affected by final agency action is entitled to judicial review... . [23] DER and Concerned Citizens maintain that the hearing officer's standard of review, in determining the validity of an agency's rule pursuant to a Section
120.54(4) rule challenge, is to determine if the agency had competent substantial evidence upon which to base its rule. However, just as an agency's Section
120.54(3)(a) quasi-legislative rulemaking proceeding is not susceptible to a competent substantial evidence standard of review upon a direct appeal from an agency's adopted rule, it is not susceptible to such a standard upon a Section
120.54(4) administrative rule challenge before a hearing officer....
...As previously established, the arbitrary and capricious and competent substantial evidence standards of review are two distinct standards, and their applicability in a given case is dependent on the nature of the proceeding under review. [24] As support for its position that both the hearing officer, in a Section 120.54(4) proceeding, and this court, when reviewing the hearing officer's determination in a Section 120.54(4) proceeding, are to determine whether the agency had competent substantial evidence upon which to base its rule, DER cites Agrico Chemical Co....
CopyCited 10 times | Published | Florida 1st District Court of Appeal
...for Chapter 38F-5, involving self-insurers in workers' compensation law. All of the appellants except for St. Joseph's Hospital, Inc. filed a timely petition questioning the validity of the proposed rules and requesting a drawout hearing pursuant to Section 120.54(16), Florida Statutes (1979)....
...were permitted. On the same day the Department filed a motion to dismiss the amended petition on the grounds that petitioners lacked standing to challenge the proposed rules in that they were not substantially affected persons within the meaning of Section 120.54(4)(a), Florida Statutes (1979)....
...the pendency of a petition challenging the validity of a proposed rule prohibited the adoption of the rule. The hearing officer held that to allow the petitioners another opportunity to amend their petition would unduly delay the rulemaking process. Section 120.54(4)(b), Florida Statutes (1979), requires that one challenging a proposed rule must "state with particularity facts sufficient to show that the person challenging the proposed rule would be substantially affected by it......
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 1985 WL 1083676
...charges" is virtually synonymous with the term "contributions-in-aid-of construction" (CIAC). I. We must first determine the applicable standard of review of a hearing officer's order sustaining the validity of a proposed rule in a proceeding under section 120.54(4), Florida Statutes (1981). The following statements of the Florida Supreme Court, although applied to rulemaking proceedings under section 120.54(3), are in our judgment equally applicable to review of orders entered pursuant to section 120.54(4): We adopt as the proper standard of review one set forth by the First District Court of Appeal upon review of similar rulemaking: Where the empowering provision of a statute states simply than [sic] an agency may `make such rules an...
...This test, approved by the Florida Supreme Court, was applied in Agrico to an order arising from a proceeding involving, as here, a challenge to a proposed rule. Thus, the standard of review for determining the validity of adopted rules, as well as orders entered in section 120.54(4) proceedings, is identical: The reviewing court should sustain both if they can be considered reasonably related to the purposes of the enabling legislation and are not arbitrary or capricious....
...e find that the rule adopted by the PSC is neither arbitrary or capricious. The rule represents a valid implementation of a PSC policy choice regarding the treatment of a utility's income tax expense during ratemaking. Testimony put forth during the section 120.54(3) hearing shows that there is no single correct method of dealing with the income tax expense of a subsidiary-utility *241 joining in the filing of a consolidated return....
...Appellants may yet have the opportunity to demonstrate that the policy decisions of the Commission in their application not as adopted are arbitrary and capricious. *247 VI. Finally, appellants urge that the economic impact statement (EIS) issued by the Commission fails to comply with the statutory requirements of section 120.54(2)(a), Florida Statutes (1981)....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2001 WL 770096
...(2000); Sun Gardens Citrus,
780 So.2d 922, 927. Appellees also challenged the Department's failure to comply with the APA. The Department's failure to comply with the APA was raised below with regards to whether (1) the 1900 foot buffer zone policy violates section
120.54, Florida Statutes (2000), because it is a rule that was not promulgated according to rule making procedures, and (2) the Department exceeded its delegated authority when it promulgated rule 5B-58.001....
...These challenges should have been brought before the Division of Administrative Hearings. Section
120.56(4)(a), Florida Statutes (2000), provides, "Any person substantially affected by an agency statement may seek an administrative determination that the statement violates s.
120.54(1)(a) .... and that the agency has not adopted the statement by the rulemaking procedure provided by s.
120.54." Furthermore, pursuant to section
120.56(1)(a), Florida Statutes (2000), "Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is...
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 154
...Division of Labor,
355 So.2d 1245, 1246 (Fla. 1st DCA 1978). Review of an order entered pursuant to section 120.59(3) is analogous to that accorded orders which summarily suspend or revoke a license pursuant to section
120.60(7) or emergency rules promulgated under section
120.54(9)....
CopyCited 10 times | Published | Florida 1st District Court of Appeal
...Diane Tremor, of Rose, Sundstrom & Bentley, Tallahassee, for Southern States Utilities, Inc., and Florida Water Works Ass'n, Inc., amici curiae. ON MOTION FOR REHEARING ERVIN, Judge. Appellants in these three consolidated cases appeal from an order dismissing their section 120.54(4) [1] petitions challenging the proposed adoption of Chapter 17-640, Florida Administrative Code, which establishes minimum standards for the management and disposal of domestic wastewater residuals, particularly rule 17-640.300 dealing with permit requirements....
...officer erred in determining that proposed rule 17-640.300 is a valid exercise of legislative authority, and (3) whether the economic impact statement submitted by appellee, the Department of Environmental Regulation (DER), meets the requirements of Section 120.54(2), Florida Statutes (1989). We affirm. In regard to the standing issue, Section 120.54(4)(a), Florida Statutes (1989), provides that "[a]ny substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated...
...s arguments were substantially covered by the other appellants to this cause. Turning to appellants' second issue, we cannot agree that rule 17-640.300 is an invalid exercise of legislative authority. Although the only explicitly stated ground under section 120.54(4)(a) for challenging a proposed rule is that the proposed rule constitutes an invalid exercise of delegated legislative authority, case law, beginning notably with Agrico Chemical Co....
...vided by DER. Substantial compliance, not perfection, *1371 is all that is required of the EIS. Department of Health & Rehab. Servs. v. Wright,
439 So.2d 937, 940 (Fla. 1st DCA 1983). The statement is sufficient if it addresses all areas required by section
120.54(2)(b), even though the estimates may be subject to debate....
...In the case at bar, the EIS addressed all areas required by the statute, and while it did not include an estimate for the cost of violations by the wastewater treatment facilities, any such estimate would have been speculation and therefore not required. Because the EIS substantially complies with section 120.54, we find no ground for reversal under this issue....
...[4] To summarize, although we conclude that the hearing officer erred by denying standing to the League, we hold that such error was harmless. We further hold that Florida Administrative Code Rule 17-640.300 is a valid exercise of legislative authority, and that the EIS submitted with the rule meets the requirements of section 120.54(2)....
...nts and amici for rehearing en banc and for certification are similarly denied. AFFIRMED. WEBSTER, J., concurs, participating upon assignment after oral argument in substitution for NIMMONS, J. ZEHMER, J., dissents without written opinion. NOTES [1] Section 120.54(4), Florida Statutes (1989). [2] This standard is less deferential than the arbitrary-and-capricious standard applicable to quasi-legislative rulemaking proceedings pursuant to Section 120.54(3)(a), Florida Statutes....
...Reg.,
553 So.2d 1260, 1271-72 (Fla. 1st DCA 1989). [3] See particularly subsection (7) of this section, which authorizes DER to "[a]dopt, modify, and repeal rules and regulations to carry out the intent and purposes of this act." [4] We note that under the 1992 amendment to section
120.54(2)(b), an EIS may not have even been required....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 109 L.R.R.M. (BNA) 3166
...s, and powers and duties conferred upon the Commission, Section
447.207, Florida Statutes. [4] Although the nonacceptance of stipulations is not suggested or encouraged, the position of the agency might well be a matter requiring adoption of a rule, Section
120.54, Florida Statutes, or at the very least, included in the notice of hearing, Section
120.57(1)(b)2, d, Florida Statutes....
CopyCited 9 times | Published | Florida 1st District Court of Appeal
...Career Service Commission,
361 So.2d 220. First, we do not agree with DNR that section 120.59 is inapplicable to proposed rule challenge proceedings. Section 120.59 is applicable to any "final order in a proceeding which affects substantial interests." Section
120.54(4)(a) authorizes "any substantially affected person" to "seek an administrative determination of the invalidity of any proposed rule." Subsection (4)(d) requires that any petition to challenge a proposed rule under section
120.54 "shall be conducted in the same manner as provided in s....
CopyCited 9 times | Published | Florida 1st District Court of Appeal
...Second, that other than such 2400 scan standard applied in this case, the Department did not appear to have any state criteria for determining whether an application should be approved or not. Third, that such criteria of 2400 procedures per scanner per year was not formally promulgated under Section 120.54, Florida Statutes (1976 Supplement)....
...cord no basis for the Department's denial of the Hospital's application. Even if the 2400 formula is a proper measurement of utilization, it was error to use it in this case because it had never been officially adopted and promulgated as required by Section 120.54, Florida Statutes....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1988 WL 138497
...o be damaged such sand dune or vegetation growing thereon seaward thereof, except as hereinafter provided" *1121 (i.e., by permit from the Department), §
161.053(2). While the public hearing on the proposed CCCL must satisfy all the requirements of section
120.54(3), Florida Statutes, the legislature has provided that the rule establishing the CCCL "shall not be subject to a s.
120.54(4) rule challenge or a s.
120.54(17) drawout proceeding, but, once adopted, shall be subject to a s....
...1st DCA 1977), this provision has been construed as having been addressed not to circuit courts but to district courts of appeal, indicating a legislative purpose "to avoid any appearance of requiring a substantially affected party to initiate duplicative
120.54 or .56 proceedings if his rule challenge is regularly presented with other grievances under
120.57, resulting in final agency action and a petition for judicial review," and was meant to "enhance remedies available under the Act rather than en...
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1997 WL 528286
...We agree. When issuing an emergency order, an agency must specify the "facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances." § 120.54(4)(a)3, Fla....
CopyCited 8 times | Published | Florida 1st District Court of Appeal
...e 10A-5.18(5) constitutes an invalid exercise of delegated legislative authority. Specifically, the hearing officer found subsection 5 of Rule 10A-5.18 to be (1) invalid as being improperly promulgated due to an inadequate economic impact statement, section 120.54(2)(c), Florida Statutes (Supp....
...Half *940 bedside rails shall be used only with the written order of the resident's physician. It was the department's position that the restraints and bedside rails constituted "nursing services" prohibited in ACLFs by section 400.402(8). Following the procedures set forth in section 120.54, Florida Statutes (Supp....
...se of rails and chest restraints did not realistically impact on the operation of ACLFs. The hearing officer concluded that "law and logic do not support" the department's reasoning. We agree. Prior to the adoption, amendment, or repeal of any rule, section 120.54(2)(a) mandates that an agency prepare an economic impact statement, [3] the purpose being to promote agency introspection in administrative rule making; to ensure a comprehensive and accurate analysis of economic factors, which factors...
...med decision making; and finally, to expose the administrative process to public scrutiny. Florida-Texas Freight, Inc. v. Hawkins,
379 So.2d 944, at 946 (Fla. 1979). However, the Florida Supreme Court has observed that "[t]he procedure envisioned by section
120.54(2)(a) does not ... command adherence to form over substance." Id. Moreover, although section
120.54(2) was amended in 1978 to provide that an agency's failure to include within its rule an "adequate" statement of economic impact is grounds for invalidation of the rule, that provision does not require perfection but only "substantial compliance" with section
120.54(2)(a)....
...The majority would reluctantly affirm the hearing officer's determination that Rule 10A-5.18(5) is an invalid exercise of delegated legislative authority solely because of alleged inadequacies in the economic impact statement prepared according to the dictates of section 120.54(2)(a), Florida Statutes, as set out in note 3, supra....
...Plantation Residents' Association, Inc. v. School Board of Broward County,
424 So.2d 879, 881 (Fla. 1st DCA 1982). The facts in the present case (1) that an economic impact statement pertaining to proposed rule 10A-5.18 was prepared in substantial compliance with section
120.54(2)(a), (2) that appellees had an opportunity to participate fully in the agency's rulemaking procedure and, at that time, to challenge the sufficiency of the economic impact statement, [1] and (3), most importantly, that the agency cha...
...he same terrain that should have been tilled during rulemaking and needlessly complicated his labors. Believing then that the agency's ruleform interpretation of the statute was not beyond its delegated scope of authority, I would reverse. NOTES [1] 120.54(2)(c) provides: Failure to provide an adequate statement of economic impact is grounds for holding the rule invalid; ......
...nsure the health and comfort of residents. (d) The levying and enforcement of penalties and use of income from fees and fines. (e) The enforcement of the resident bill of rights specified in s. 400.428. (f) The care and maintenance of residents. [3] 120.54(2)(a) provides: Each agency, prior to the adoption, amendment, or repeal of any rule, shall provide information on its proposed action by preparing a detailed economic impact statement....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1991 WL 75657
...eld that every agency action is "a recognizable rule or an order" under the APA or is "incipiently a rule or order." State ex rel Dep't of Gen. Serv. v. Willis,
344 So.2d 580, 584 (Fla. 1st DCA 1977). Except when an agency acts by formal rulemaking (Section
120.54) or by declaratory statement concerning the applicability of a statute, rule or order (Section
120.565), all agency action, on appropriate challenge, will mature into an order impressed with characteristics of the APA's Section
120.57....
CopyCited 8 times | Published | Supreme Court of Florida | 1983 WL 813520
...ion system and thus [is] a matter of "rate structure" subject to the jurisdiction of the [PSC]. City of Tallahassee v. Mann,
411 So.2d 162, 163-64 (Fla. 1981). The PSC, on April 29, 1982, denied the City's petition to initiate rulemaking pursuant to section
120.54(5), Florida Statutes (1981), and upon receiving the City's notice of administrative appeal on April 30, 1982, the First District Court of Appeal, on May 6, 1982, transferred the cause on its own motion to this Court pursuant to article...
CopyCited 8 times | Published | Florida 1st District Court of Appeal
...The hearing officer declared the rule invalid, finding that it was arbitrary, inconsistent with statutory criteria (section 381.494(6)(c), Florida Statutes) for evaluating certificate of need (CON) applications, and was adopted without compliance with the notice and filing requirements of section 120.54, Florida Statutes....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1994 WL 64957
...15), Florida Statutes (1993), now prohibits judicial scrutiny of an administrative rule to determine whether the rule constitutes an invalid exercise of delegated legislative authority except to review an order entered pursuant to a proceeding under s.
120.54(4) or s.
120.56, unless the sole issue presented by the petition [for review] is the constitutionality of a rule and there are no disputed issues of fact. Proceedings under sections
120.54(4) and
120.56 are administrative rule challenges, initiated by filing petitions seeking determinations of invalidity with the Division of Administrative Hearings....
...filed. [4] If a petition to invalidate a rule filed with the Division of Administrative Hearings complies with statutory requirements, a hearing officer presides in proceedings which typically run their course in approximately seventy days, sections
120.54(4)(c) and
120.56(2) and (3), Florida Statutes (1993), and culminate in a final order, sections
120.54(4)(d) and
120.56(5), Florida Statutes (1993), fully reviewable in an appropriate district court of appeal. Ordinarily rule challenge proceedings include a hearing "conducted in the same manner as provided in s.
120.57," sections
120.54(4)(d) and
120.56(5), Florida Statutes (1993), a hearing that resembles a non-jury trial....
...control line). When the Island Harbor court dealt with the "complexity of the scientific and technical issues in th[at] case,"
495 So.2d at 223, it had the benefit of the hearing officer's findings and of a record [7] that had been made in a six-day section
120.54(4) rule challenge hearing, "17 volumes of pleadings and transcripts and two large boxes of exhibits."
495 So.2d at 212 n....
...Judicial review may be more difficult when a court must construe an informal legislative-type record for review. Id. [6] Obiter dicta in Adam Smith Enterprises, Inc. v. State Dep't of Environmental Regulation,
553 So.2d 1260 (Fla. 1st DCA 1989) (reh. den.), explain: [Rulemaking p]roceedings conducted pursuant to Section
120.54(3)(a) are not the same type of proceedings as are provided under Section
120.57.... Section
120.54(3) rulemaking proceedings are information-gathering proceedings, much like legislative committee proceedings where testimony is heard, which proceedings are relatively informal.......
...s been the source of much confusion.
553 So.2d at 1270. The Adam Smith case came to the court for review of a hearing officer's final order in a rule challenge case, not directly from the rulemaking agency. Not every rule's adoption is preceded by a section
120.54(3) hearing. A rulemaking record may lack pertinent information as well as contain information of dubious reliability. [7] Despite the availability of the record from the section
120.54(4) rule challenge hearing and extensive fact finding in the hearing officer's final order, the Island Harbor court found it necessary to remand for supplemental fact finding....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1991 WL 97041
...estanding ambulatory surgical centers, and (2) the economic impact statement is fatally deficient. We find merit in both of appellants' contentions, and reverse. On March 23, 1990, the HCCCB published the Notice of Proposed Rulemaking as required by section 120.54, Florida Statutes....
...that any defect in the EIS was harmless. An agency rule may be declared to be an invalid exercise of delegated legislative authority if, among other things, The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54; The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7); or The rule is arbitrary or capricious....
...the agency's purpose in situations where the agency is given no other regulatory authority, and where there is no specific legislative authority to require the collection of such data. We next deal with the validity of the economic impact statement. Section 120.54(2)(b) requires an agency which is adopting a rule to prepare a detailed economic impact statement which must include, "an estimate of the cost or economic benefit to all persons directly affected by the proposed action," and "an analys...
..."written notice of such rule to the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce not less than 21 days prior to the intended action." § 120.54(3)(b), F.S....
...he proposed rules demonstrated that they were a small or minority business. He also stated that it had not been proven that the board did not fully consider the asserted economic impact on small business. We feel that this factor is not dispositive. Section 120.54(3)(b) specifically provides that certain parties are to receive notice and are to be allowed to provide input prior to agency adoption of rules....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 13 Fla. L. Weekly 1484, 1988 Fla. App. LEXIS 2572, 1988 WL 62659
...SHARP, Chief Judge. This appeal presents the question of whether two Department of Transportation (DOT) pronouncements are administrative rules and thus invalid because they were not promulgated in accordance with our Administrative Procedure Act (APA), specifically section 120.54, Florida Statutes (1987)....
...s to section 915. Florida Administrative Procedure Act, section
120.50, et seq., Florida Statutes (1987) provides a framework for most administrative agency action. [1] The Act contains detailed provisions governing the promulgation of agency rules, section
120.54, Florida Statutes, and in section
120.52(16) defines a "rule" as an: agency statement of general applicability that implements, interprets, or prescribes laws or policy or describes the organization, procedure or practice requirements...
CopyCited 8 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 330
...with the new provision. Frontier Acres concedes that its petition did not include an economic impact statement, but contends that it substantially complied with the statute in that the required elements of an economic impact statement, set forth in section 120.54(2)(a), Florida Statutes (1983), were in fact considered by the county commission before the petition was granted....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1977 Fla. App. LEXIS 15613
...Stat.(1973)], the procedure for rule adoption was reposed entirely within the particular agency proposing to adopt the rule. Now, however, under the new Administrative Procedure Act [Ch. 120, Fla. Stat. (1975) as amended by Fla. Stat. (Supp. 1976)] the legislature has, by § 120.54, established rule-making procedure by which a hearing officer of the Division of Administrative Hearings of the Department of Administration is assigned to determine the validity or invalidity of an agency's proposed rule (if it contains an...
...Thus, unlike the old Administrative Procedure Act, under the new Administrative Procedure Act a hearing officer can strike down as invalid an agency's proposed rule, but in conjunction with this new authority granted to hearing officers, the legislature has specifically made the hearing officer's order "final agency action" [§
120.54(3)(d)] which is subject to judicial review under §
120.68. Petitioner also contends that orders of a hearing officer pursuant to §
120.54(3) are an unconstitutional delegation and exercise of legislative power by the executive branch of government prohibited by Art. III, § 1, of the Florida Constitution; that is that the provisions of §
120.54(3), in permitting hearing officers to declare a proposed rule or any portion thereof void, gives hearing officers the apparent power to make rules for all agencies (negatively) in a manner previously exercised only by the legislature....
...Petitioner contends further that, by overruling its objections to discovery and thereby compelling discovery for the purpose of reviewing petitioner's estimate of the economic impact of the proposed rule, the hearing officer exceeded his statutory authority. While § 120.54 does not specifically relate to an alleged erroneous economic impact statement to validity or invalidity of a rule, it does require the promulgation of such a statement by the agency as one of the steps in the rule-making procedure....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1994 WL 531291
...(1991), the delegated power does not include the denial of a foster parent application based on unwritten rules. The legislature has made it plain that "[r]ulemaking is not a matter of agency discretion. Each agency statement defined as a rule under s.
120.52(16) shall be adopted by the rulemaking procedure provided by s.
120.54 as soon as feasible and practicable." § 120.535(1), Fla....
...or solicits any information not specifically required by statute or by an existing rule. The homosexual and unmarried couple policies are of general applicability. By applying those policies and not following the rulemaking procedures prescribed in section 120.54, Florida Statutes (1991), HRS exceeded its delegated authority....
...Mary Carol Hill, a licensing specialist for HRS, also stated that she had never heard of the unmarried couple rule being applied prior to this case. We hold that HRS cannot simply apply unwritten rules to deny foster parent applications. Because HRS has not followed the rulemaking procedure prescribed in section 120.54 in fashioning homosexual and unmarried couple policies, we reverse and vacate the trial court's final judgment....
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...slative directives in its establishment of certain rules. [1] While the petitioner claims a jurisdictional base in Chapter 120, Florida Statutes (1979), we find no showing of exhaustion of administrative remedies here. Petitioner is entitled to seek §
120.54(5), F.S., or §
120.56, F.S., proceedings, which may resolve the issues without resorting to premature judicial intervention....
CopyCited 7 times | Published | Florida 4th District Court of Appeal
...The first, issued by the Unemployment Appeals Commission, holds that Mr. Caluwe is entitled to unemployment benefits. The second order, entered by the Division of Administrative Hearings, holds that the District's Corrective Action Policy (Policy) is an invalid rule because it was not promulgated in compliance with section 120.54, Florida Statutes (1983)....
...offense and carries a penalty of 25 points for six months. Another provision indicates that "[a] total of 100 points in effect may be cause for termination." The District implemented this policy without following the formal rulemaking procedures of section 120.54, Florida Statutes (1983)....
...Caluwe's peremptory attack on the termination proceedings. He argues that the District's corrective action policy is a "rule" within the meaning of section
120.52(15), Florida Statutes (1983). Further, he asserts that the rule/policy is invalid because it was not promulgated in accordance with section
120.54....
...minated for proper cause within the meaning of section
447.209, Florida Statutes (1983). Cf. State v. Stevens,
344 So.2d 290 (Fla. 1st DCA 1977). The District concedes that its Policy was not adopted in compliance with the procedural requirements of section
120.54, but nevertheless argues that the Policy is valid because it falls within the internal memoranda exception of section
120.52(15)(a), [7] or alternatively, because the District has elected to defend the policy on an ad hoc basis in disc...
...s of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum. [8] Even if the Policy is a "rule" for purposes of section
120.52, we would not strike it down as invalid under section
120.54 because we believe that the District is entitled to defend the Policy on an ad hoc basis in section
120.57 hearings....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 14 Fla. L. Weekly 1322, 1989 Fla. App. LEXIS 3039, 1989 WL 55966
...With the enactment of the Administrative Procedure Act, Chapter 120, the legislature in
120.68 provided for appeals of final administrative action to the district courts. Section
120.52(10)(d), Florida Statutes (1981) exempted prisoners as parties for purposes of obtaining rule making administrative hearings section
120.54(16) or "substantial interest" administrative hearings section
120.57....
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...77-728R and 77-1258R. The order found that certain practices and procedures of the Florida Parole and Probation Commission (hereinafter the Commission) were rules and as such were invalid because of the failure of the Commission to properly adopt them pursuant to § 120.54, Fla....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1993 Fla. App. LEXIS 2979, 1993 WL 72042
...hich prisoners may appeal pursuant to section
120.68. Chapter 92-166, Laws of Florida, has recently amended section
120.52(12)(d) so that section now states in part: Prisoners as defined in s.
944.02(5) may obtain or participate in proceedings under s.
120.54(3) or (5)....
...s.
120.68 of any other agency action. Parolees shall not be considered parties for purposes of agency action or judicial review when the proceedings relate to the rescission or revocation of parole. Accordingly, unless a prisoner is proceeding under section
120.54(3) or (5), a prisoner may not seek direct judicial review in this court....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal
...Florida Parole and Probation Commission,
386 So.2d 295 (Fla. 1st DCA 1980). [3] The State moved to dismiss Jenrette's petition for writ of habeas corpus on the ground that Jenrette failed to exhaust his administrative remedies by seeking review of the Commission's ruling under Section
120.54(5), Florida Statutes, or Section
120.56, Florida Statutes....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2003 WL 327505
...We find the legislature's use of the word "adopted" in the statute to be a limitation on the scope of conduct that will subject an employer to liability under the statute. It is undisputed that the FCC's news distortion policy has never been "adopted" as defined by section 120.54, Florida Statutes (1997)....
...ida law. The Florida Legislature has limited state agencies' discretion to formulate policy through the adjudicative process by requiring agencies to formally adopt each agency statement that fits the definition of a "rule" under section
120.52. See §
120.54....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1997 WL 60865
...The hearing officer rendered a final order in which he determined that the appellants did not have standing to challenge the proposed rules and in which he upheld each of the proposed rules in their entirety. We address first the hearing officer's ruling on standing. Section 120.54(4)(a), Florida Statutes, grants standing to "[a]ny substantially affected person" to challenge a proposed rule as an invalid exercise of delegated legislative authority....
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...the accompanying economic impact statement was sufficient. We need not reach these points, however, as they were findings made by the hearing officer "assuming arguendo " that appellant had standing to challenge the proposed amendment and rule under section 120.54(4), Florida Statutes....
...As set forth in his final order: Based upon the evidence presented, Petitioner [Florida Association of Nurse Anesthetists] has not established that the effect of these proposed rules on its members will be real and immediate, or that its members will be "substantially affected" in any way by their adoption. Section 120.54(4)(a), Florida Statutes....
CopyCited 7 times | Published | Supreme Court of Florida
...By petition for writ of certiorari, we are asked to review Public Service Commission Order No. 14020, dated December 29, 1977, which amended Chapter 25-16, Florida Administrative Code, by adding parts III and IV thereto. The issue presented is whether the Commission complied with section 120.54(2)(a), Florida Statutes (Supp....
...the forwarders. On August 15, 1977, the hearing examiner entered an order recommending that the rules be adopted as proposed. Petitioner filed exceptions to the examiner's report, complaining of an inadequate economic impact statement as required by section 120.54(2)(a), Florida Statutes (Supp....
...14020 in which it affirmed the examiner's report in all relevant respects. Petitioner argues that the Commission's failure to prepare an economic impact statement rendered the instant rulemaking proceeding invalid. The Commission counters with three arguments: (1) the proceeding was in substantial compliance with section
120.54(2)(a); (2) petitioner has failed to produce any evidence contradicting the Commission's finding of no economic impact; and (3) any possible error in Commission procedure was not material and hence does not require a remand. §
120.68(8), Fla. Stat. (Supp. 1976). For the following reasons, we agree with the Commission's contention. Section
120.54(2)(a) provides: (2)(a) Every agency, prior to the adoption, amendment, or repeal of any rule, shall prepare information on its proposed action by preparing an economic impact statement using professionally accepted methodology, with qu...
...The process of formulating rules and regulations involves an interplay between social and economic factors and the legislative goals underlying agency action. In order to ensure a comprehensive and accurate analysis of economic factors in this calculus, the legislature has instructed an agency, through section 120.54(2)(a), to prepare an explicit statement delineating the short- and long-term economic consequences of a proposed rule. Such a procedure directs agency attention to certain key considerations and thereby facilitates informed decision making. It also serves the salutary purpose of opening up the administrative process to public scrutiny. The procedure envisioned by section 120.54(2)(a) does not, however, command adherence to form over substance....
...the Commission's staff witness specifically stated that there would be no economic impact. The record in this cause does not require a remand to the Commission to file a detailed formal statement simply negating each of the seven factors outlined in section 120.54(2)(a) when a finding of no impact has been made....
...*947 ENGLAND, C.J., and BOYD and ALDERMAN, JJ., concur. SUNDBERG, J., dissents with an opinion, with which ADKINS, J., concurs. SUNDBERG, Justice, dissenting. I respectfully dissent from the majority opinion because I believe it materially impairs the purpose and integrity of section 120.54(2)(a), Florida Statutes (Supp....
...The process of formulating rules and regulations involves an interplay between social and economic factors and the legislative goals underlying agency action. In order to ensure a comprehensive and accurate analysis of economic factors in this calculus, the legislature has instructed an agency, through section
120.54(2)(a), to prepare an explicit statement delineating the short- and long-term economic consequences of a proposed rule. Such a procedure directs agency attention to certain key considerations and thereby facilitates informed decision making. It also serves the salutary purpose of opening up the administrative process to public scrutiny. The procedure envisioned by section
120.54(2)(a) is analogous to that found in our capital punishment statute, section
921.141(3), Florida Statutes (1977). That provision directs the trial judge to make specific findings in the record of any aggravating or mitigating circumstance appertaining to one convicted of a capital offense. As in section
120.54(2)(a), the purpose of the statute is to channel into the decision-making process certain factors considered vital by the legislature....
...It ensures a fair and comprehensive process by requiring a systematic review of essential economic factors. As such, the statement is equally vital, and mandatory, in contested as well as uncontested proceedings. Thus, the Commission's failure in this case to comply with section 120.54(2)(a) constitutes error irrespective of the substantive correctness of its findings. For these reasons I would grant the petition for writ of certiorari and quash the order of the Commission. ADKINS, J., concurs. NOTES [1] Section 120.54(2), Florida Statutes (Supp....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal
...However, the propriety of the probable cause hearing is not before us. The DPR did not purport to rely solely on the evidence adduced at that hearing, nor was it required to. It was merely required under Section
120.60(7), Florida Statutes (1979), to show compliance in its order with the requirements imposed by Section
120.54(9) on agencies making emergency rules. The order recited specific facts and reasons for finding an immediate danger to the public health, safety, or welfare necessitating the emergency suspension of Lerro's license, as required by Section
120.54(9)(a)3, and we believe those reasons are sufficient to support the DPR's order. [1] We have found no statutory requirement for a formal hearing of any kind prior to the entry of an emergency order such as this. At the oral argument before this court, the issue of whether under Section
120.54(9)(c) the DPR's emergency order would expire at the end of ninety days absent earlier formal suspension or revocation of Lerro's license was raised, and the parties were subsequently requested to submit memoranda of law addressing this question by 5:00 p.m. on Thursday, September 11. Having received and reviewed the memoranda submitted by both parties, we conclude that Section
120.54(9)(c) is not applicable to emergency license suspension orders, since it does not pertain to the making of an emergency rule or order, but only to the period of time that an emergency rule remains effective....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...600 figure have no rational basis in fact; (3) the rule does not prohibit the addition of a second lab by an existing provider, and thus results in an unfair advantage to existing providers; and (4) the economic impact statement fails to comply with Section 120.54(2)(a), Florida Statutes (1983), and is inadequate....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1995 WL 111457
...from that mine to Department projects be only from pretested stockpiles and approved by the District Three Materials Engineer based on Department quality assurance test results. We affirm, finding that the appealed order does not violate subsections
120.54(9) and
120.60(8), Florida Statutes, and does not deprive White Construction of procedural due process of law....
...timely request, the Department's proposed action stated in the notice of intent shall be effective final agency action and supersede the provisions of the emergency final order. The controlling statutory provisions are subsections
120.60(8) [1] and
120.54(9)(a) [2] , Florida Statutes (1993). Cases interpreting those provisions have held that the District Courts of Appeal have jurisdiction to review emergency orders under subsection
120.54(9)(a)3, but the scope of review is limited to a determination of whether the emergency order complies with the requirements of subsection
120.54(9)(a)....
...Department of Bus. and Prof. Reg.,
631 So.2d 338, 340 (Fla. 4th DCA 1994); Allied Educ. Corp. v. State, Dep't of Educ.,
573 So.2d 959, 960 (Fla. 1st DCA 1991). We find that the appealed order should be affirmed because it complies with the requirements of subsection
120.54(9)(a). As to the factual findings required by subsection
120.54(9)(a), Witmer has held: The factual allegations contained in the emergency order must sufficiently identify particularized facts which demonstrate an immediate danger to the public....
...Department of Ins.,
586 So.2d 429, 430 (Fla. 1st DCA 1991).
631 So.2d at 341. The appealed order satisfies these requirements. First, the order set forth specific facts and reasons for finding an *1305 immediate danger to the public, health safety or welfare. §
120.54(9)(a); Allied Educ....
...construction on the two referenced DEPARTMENT projects may continue, and the public can be assured of a safe, stable and long-lasting roadway... . Second, the order states why the action taken was only that necessary to protect the public interest. § 120.54(9)(a); Allied Educ....
...edy of suspending or revoking approval of the mine on an emergency basis, as well as the availability of an administrative hearing upon request by WHITE, the procedure employed in this case is fair under the circumstances. Finally, as required by subsection 120.54(9)(a), the above-quoted paragraph of the order also indicates that the procedure of requiring further testing of the limerock and approval by the district engineer is fair under the circumstances. § 120.54(9)(a); Allied Educ....
...ALLEN and DAVIS, JJ., concur. NOTES [1] If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, it shall show compliance in its order with the requirements imposed by s. 120.54(9) on agencies making emergency rules....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1999 WL 420293
...The Department's reliance on when the exceptions were received in its office is misplaced. Model rule 28-5.103, Florida Administrative Code, allows an additional five days to be added to prescribed time limits when service is made by mail. This model rule applies to the Department under section 120.54(10), Florida Statutes, and we hold that Beacon's exceptions were timely under the rule....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...right to participate as an intervenor in administrative proceedings to challenge the validity of certain rules proposed by the Board to implement its statutory power to regulate members of the Coalition. These proceedings were initiated pursuant to section 120.54(4), Florida Statutes (1987), by certain appellees, including the Florida Psychiatric Society, Inc., and the Florida Psychological Association, to challenge the validity of three rules which propose to define the practices of clinical s...
...ipate in the discretion of the hearing officer under §
120.52(12)(c), but as persons "whose substantial interests will be affected by proposed agency action" under §
120.52(12)(b) and thus are "substantially affected persons" within the meaning of §
120.54(4)....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...ical fitness for patrolmen, and general order 43, prescribing guidelines for supervisors in assessing discipline for deficiencies in patrolmen's conduct, are illicit rules and hence invalid, because they were not subjected to formal rulemaking under Section 120.54....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1983 Fla. App. LEXIS 19752
...le of procedure requiring that PPC rule adoption proceedings "shall be conducted according to the provisions of Chapter 120, F.S., and these rules." While this rule of procedure *1309 might bind the PPC to follow the rulemaking dictates contained in section
120.54 of the APA, it does not in itself make the PPC subject to section
120.56 (administrative determination of rule by hearing officer) any more than it would require the PPC to comply with section
120.545 (committee review of agency rules) or section
120.55 (publication of rules in the Florida Administrative Code)....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...Fernandez, Oertel & Hoffman, P.A., Tallahassee, for appellees. WIGGINTON, Judge. Before us is an appeal from a challenge to the validity of the Board of Optometry's proposed rule 21Q-3.10 and the Board's 1975 policy statement, both relating to the use and prescription of legend drugs by optometrists. Section 120.54(4)(a), Florida Statutes (1983)....
...The hearing officer held, inter alia, that the petitioners, appellees herein, had standing to challenge the rule and policy statement; that the policy statement is a "rule" within the meaning of section
120.52(15), Florida Statutes (1983), but not adopted in accordance with section
120.54, and therefore an invalid exercise of delegated legislative authority; and that the proposed rule is also an invalid exercise of delegated legislative authority....
CopyCited 6 times | Published | Supreme Court of Florida | 1977 Fla. LEXIS 3870, 1977 WL 365294
...No part of that account is involved in this controversy. [3] Order No. 7293 in Docket No. R-750626-WS, at p. 9 (6/24/76). [4] The Commission has only those powers granted by statute expressly or by necessary implication. City of Cape Coral v. GAC Utilities, Inc.,
281 So.2d 493 (Fla. 1973). See Section
120.54(13), Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1997 WL 795701
...The Department of Highway Safety and Motor Vehicles (Department) appeals a final *82 order of the administrative law judge (ALJ) determining that each of six policies, which the Florida Highway Patrol follows in investigating allegations of employee misconduct, constitutes a rule that was never adopted in compliance with section 120.54, Florida Statutes (Supp.1996)....
...t seeks, without adhering to statutorily prescribed rulemaking procedures, to put rules in place de facto. [2] An agency policy statement "of general applicability" effective by its own terms statewide but never adopted in the manner specified by section
120.54, Florida Statutes (Supp.1996), or its predecessors cannot withstand challenge under section
120.56(4), Florida Statutes (Supp.1996)....
...es which the Florida Highway Patrol usually, if not invariably, follows, in investigating allegations of employee misconduct, "constitutes a rule under provisions of Section
120.52, Florida Statutes (Supp.1996) ... [never] adopted in compliance with Section
120.54, Florida Statutes (Supp.1996)." The majority approves this characterization of half the challenged policies, but concludes that the other half do not only because they contain the phrase "in certain circumstances" amount to illicit rules....
...cy Orders, 19 Fla. St. U.L.Rev. 437-38 (1991) (footnote omitted). [4] Section 120.535 has since been deleted, but the pertinent language therein restricting agencies from establishing policy outside the confines of rulemaking has been transferred to section 120.54(1)(a), Florida Statutes (Supp.1996)....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1999 Fla. App. LEXIS 17308, 1999 WL 1259989
...egarding the means, methods, and criteria for analyzing and approving the source of the ARS used to calibrate the breath-testing machines. The petition alleged that these statements and policies had not been adopted or proposed as rules, contrary to section 120.54(1)(a)....
...g the means, methods, and criteria for analyzing and approving the source of the alcohol reference solution used to test the instruments. The petition asserts that these statements and policies have not been adopted or proposed as rules, contrary to section 120.54(1)(a)....
...Lanoue thus failed to show he was substantially affected by these policies. *100 See §
120.56(4)(a), Fla. Stat. (1997) ("Any person substantially affected by an agency statement may seek an administrative determination that the statement violates s.
120.54(1)(a).")....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1982 Fla. App. LEXIS 21926
...Accordingly, the hearing officer did not err in rejecting the parents' constitutional challenge. Finally, we affirm the hearing officer's findings that any deficiencies in the boards' economic impact statement did not impair the fairness of the proceedings. The requirements of Section 120.54(2) (1981) do not oblige the hearing officer to reverse a school board decision solely on the basis that the attendant economic impact study appears to be facially deficient....
...Florida-Texas Freight; School Board of Broward County v. Gramith,
375 So.2d 340 (Fla. 1st DCA 1979). The hearing officer acted within his authority in finding no prejudicial error occurred. The order of the Division of Administrative Hearings is AFFIRMED. SHAW and JOANOS, JJ., concur. NOTES [1] Sec.
120.54(2) requires that each agency provide an "adequate" economic impact statement before adopting, amending or repealing any rule. [2] The process of drawing school zone boundary lines is rule-making within the meaning of Section
120.54, Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...lost as a result of Flagler's cancellation earlier this summer of 26 performances due to a dispute with greyhound owners. Calder contends that the Board acted improperly by failing to observe the notice, hearing and other procedural requirements of § 120.54, F.S. 1973 (1974 *68 Sup.), pertaining to rulemaking, and in finding that there is "an immediate danger to the public ... welfare" requiring emergency action necessary to protect the public interest. Sec. 120.54(8)(a), F.S....
...1973 (1974 Sup.), and, if so, whether the July 25 order varying that policy was itself a rule. For whether the Board's action on July 25 was the promulgation of a rule or the mere issuance of an order not having effect as a rule [§
120.52(8), F.S. 1973 (1974 Sup.)], the Board had power to act independently of §
120.54, F.S. 1973 (1974 Sup.), to meet an immediate danger to the public welfare requiring emergency action to protect the public interest. Secs.
120.54(8)(a), 120.59(3), F.S....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 2008 Fla. App. LEXIS 4782, 2008 WL 876358
...The Board denied his application, stating that it had permanently revoked his previous license and had not adopted rules permitting a formerly licensed pharmacist to apply for relicensure. Appellant then filed a petition to compel the Board to adopt a rule allowing his reapplication for licensure, under section 120.54, Florida Statutes (2006)....
CopyCited 6 times | Published | Florida 5th District Court of Appeal
...120.68(1), Fla. Stat. (1979). The Administrative Procedure Act defines party in section
120.52(10), Florida Stat. (1979). [2] Appellants contend that the commission failed to provide notice to all parties of this rulemaking proceeding as required by section
120.54(1)(a), Florida Statutes (1979)....
...In the absence of such a showing, it cannot be found that the adoption of this March 9, 1978 resolution constituted a request for advance notice of any rulemaking proceedings affecting the Tosohatchee Preserve. Thus Orange County has not shown that it was entitled to advance notice of this section 120.54 rulemaking proceeding. This means that Orange County was not a party to the section 120.54 rulemaking proceeding in the lower tribunal....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...ing a license if the agency finds that an immediate, serious danger to the public health, safety, or welfare requires such action. An agency entering an order of emergency suspension must show compliance in its order with the requirements imposed by section 120.54(9) on agencies making emergency rules. As is required by section 120.54(9)(a)3, the order in the instant case clearly set forth specific facts and reasons for the Division's finding of immediate danger to the public welfare necessitating emergency suspension of appellant's license....
CopyCited 5 times | Published | Supreme Court of Florida | 2004 WL 2201732
...s placed on the record after an ex parte communication; the written decision of the administrative law judge presiding at the final hearing; and the official transcript of the final hearing. (E) In an appeal from a rule adoption pursuant to sections
120.54 (rule adoption) and
120.68(9), Florida Statutes, in which the sole issue presented by the petition is the constitutionality of a rule and there are no disputed issues of fact, the record shall consist only of those documents from the rulemakin...
...The agency's rulemaking record consists of all notices given for the proposed rule; any statement of estimated regulatory costs for the rule; a written summary of hearings on the proposed rule; the written comments and responses to written comments as required by sections 120.54 (rule adoption) and 120.541, Florida Statutes (statement of estimated regulatory costs); all notices and findings made pursuant to section 120.54(4), Florida Statues (adoption of emergency rules); all materials filed by the agency with the Administrative Procedures Committee pursuant to section 120.54(3), Florida Statutes (rule adoption procedure); all materials filed with the Department of State pursuant to section 120.54(3), Florida Statutes (rule adoption procedure); and all written inquiries from standing committees of the legislature concerning the rule....
...Subdivision (c)(2)(C) addresses the record on appeal from declaratory statement requests pursuant to section
120.565, while subdivision (c)(2)(D) lists the provisions of section
120.574(2)(d), Florida Statutes. Subdivision (c)(2)(E) of the rule addresses proceedings governed by sections
120.54 and
120.68(9), Florida Statutes. The definition of the rulemaking record tracks language in section
120.54(8), Florida Statutes....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1988 WL 96447
...and this proceeding to the District for further consideration in accordance with this opinion. DANIEL, J., concurs. DAUKSCH, J., dissents without opinion. NOTES [1] This is a direct appeal from an agency's final action consisting of rule-making. See § 120.54 (the Administrative Procedure Act), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...N applications, to determine the number of new Medicare home health agencies "needed" in a given HRS service district. Gulf Coast challenged the proposed rule as an invalid exercise of delegated legislative authority under the procedures provided in Section 120.54(4), Florida Statutes....
...t knows its policy may wisely sharpen its purposes through adjudication before casting rules. McDonald v. Department of Banking and Finance,
346 So.2d 569 (Fla. 1st DCA 1977). Section
120.53(1)(c), Florida Statutes (1985), requires, independently of Section
120.54 rulemaking provisions, agency procedures for argument of policy issues before the agency....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1993 WL 390413
...ed to remove the spill; and (3) make available certain additional cleanup equipment which DNR deemed necessary to clean up a 10,000 gallon fuel spill. Stuart Yacht Club timely filed a petition with the Division of Administrative Hearings pursuant to section 120.54(4) challenging the validity of the proposed rules on the grounds that they represented an invalid exercise of delegated legislative authority....
...sections
376.065 and
376.07, and, therefore, are not an invalid exercise of delegated legislative authority. [2] In addition, although agreeing in substance with Stuart Yacht Club's contention that DNR's economic impact statement did not comply with section
120.54(2), which requires all agencies to consider the impact a proposed rule will have on "small business," the hearing officer nevertheless found the error to be harmless because those costs imposed on small businesses by the proposed rules were not shown to be unreasonable....
...ing officer's conclusion that this proposed rule represents a valid exercise of DNR's delegated legislative authority. NOTICE AND THE ECONOMIC IMPACT STATEMENT Stuart Yacht Club also seeks reversal on the grounds that DNR failed to comply with *1269 section 120.54 when formulating its economic impact statement (EIS). In this regard, Stuart Yacht Club presents two arguments. First, Stuart Yacht Club claims DNR failed to provide it or the appropriate organizations with the proper notice as required by section 120.54(1)(a)....
...the lack of notice from DNR. Accordingly, any error in notification was harmless. Secondly, Stuart Yacht Club attacks the EIS prepared by DNR on the ground that it fails to consider the impact of the proposed rules on "small business" as required by section 120.54(2)....
...In its EIS, DNR concluded the proposed rules should have no impact on small business. According to DNR, the basis for this conclusion was an assumption that a small business would be a facility with a storage capacity of less than 10,000 gallons of pollutants. Section 120.54(2)(a) mandates each agency consider, prior to the adoption of any rule, several methods for reducing the impact that the proposed rule will have on "small business" as that term is defined in the Small and Minority Business Assistance Act of 1985. [6] In addition, section 120.54(2)(b) requires the agency prepare a detailed EIS describing the impact of the proposed action, on, among other things, those small businesses. According to section 120.54(2)(d), "The failure to provide an adequate statement of economic impact is a ground for holding the rule invalid." Notwithstanding, Florida courts have held that "preparation of an economic impact statement is a procedural requirement,...
...10,000 gallon tanks, clearly bears this out. Consequently, DNR had a statutorily imposed obligation to consider the impact on small business in its EIS. Significantly, had DNR properly determined in the first instance that this were the case, under section 120.54(3)(b), DNR would have been obliged to send written notice of the proposed rules to certain small and minority business concerns not less than 21 days prior to its action. Then, these interests would have been afforded the opportunity to offer alternatives regarding the impact of the rule on small business. See section 120.54(3)(b)1....
...that reduced the cost to small business. For instance, small business interests could have offered alternatives to the additional equipment that is listed in 16.034(1). As the first district remarked in Cataract Surgery Center,
581 So.2d at 1364-65: Section
120.54(3) specifically provides that certain parties are to receive notice and are to be allowed to provide input prior to agency adoption of rules....
...to minimize the escape of such pollutants from the containment area." (emphasis added). These sections reflect the legislature's choice to impose an additional cleanup burden only where the vessel can transport more than 10,000 gallons, without any mention of the terminal facility's storage capacity. [5] Section 120.54(1)(a) provides that, prior to the adoption of any rule, an agency is required to mail notice of its intended action to, among others, those classes of persons to whom the intended action is directed....
...ll-time employees and that has a net worth of not more than $1 million." It is undisputed that Stuart Yacht Club qualifies as a small business under this definition. [7] As an aside, we also note that the EIS does not comply with other provisions of section 120.54(2)(b). For instance, section 120.54(2)(b)2 requires the EIS include an estimate of the cost to all affected parties....
...proposed rules at issue were reasonably ascertainable. In addition, though, the EIS neglects to include an estimated impact on competition or employment, or a detailed statement of the data and method used to reach the estimates made, as mandated by section 120.54(2)(b)3 and 4.
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...Krajenta seeks review of Emergency Rule 38 FER 79-4, which was promulgated *1201 by the Division of Workers' Compensation on August 1, 1979, and became effective on that same date. We agree with petitioner's contention that the rule was not adopted in accordance with the requirements of Section 120.54(9)(a), Fla....
...Chapter 440, nor need we address petitioner's contention that if the rule is valid, Section 3.10 may not be applied to claims filed after August 1, 1979 for injuries which occurred prior to that date. Our sole concern is whether the requirements of Section 120.54(9)(a), Fla....
...We have jurisdiction to review "[t]he agency's finding of immediate danger, necessity, and procedural fairness... ." Times Publishing Co. v. Florida Department of Corrections,
375 So.2d 304 (Fla. 2d DCA 1979); Postal Colony Co., Inc. v. Askew,
348 So.2d 338 (Fla. 1st DCA 1977); Section
120.54(9)(a)(3), Fla. Stat. (Supp. 1978). Section
120.54(9), Fla. Stat. (Supp. 1978), allows for the acceleration of the normal rule-making process provided for in Section
120.54. For example, while a proposed rule will not become effective until twenty days after being filed with the Department of State, an emergency rule may become effective immediately on filing. Sections
120.54(9)(d),
120.54(12)(a), Fla. Stat. (Supp. 1978). Moreover, an agency which proposes to adopt emergency rules is not required to comply with Section
120.54(11)(a), which requires an agency to file a copy of its proposed rules with the Administrative Procedures Committee at least twenty-one days prior to its proposed adoption date. Section
120.54(11)(a), Fla....
...remedies, Times Publishing Co. v. Florida Department of Corrections, supra , but the courts, in the few instances in which the issue has arisen, have not been hesitant in striking down emergency rules which were not adopted in strict compliance with Section 120.54(9)....
...1st DCA 1975). An agency may adopt an emergency rule if (1) it finds that an immediate danger to the public health, safety or welfare exists, and (2) it files with the Department of State, at the time of its action, a statement meeting the requirements of Section 120.54(9)(a)(3), *1203 Fla....
...mstances. In any event, notice of emergency rules, ... shall be published in the first available issue of the Florida Administrative Weekly. The agency's finding of immediate danger, necessity, and procedural fairness shall be judicially reviewable. § 120.54(9)(a), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1996 WL 656411
...miniums, and Mobile Homes (the Division), appeal a final administrative order determining that the proposed repeal of Rule 61B-31.001(5), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority in violation of section 120.54(4), Florida Statutes (1993), and that the Division's policy statements relating to the length of validity of a prospectus and to the elimination of any procedure for approving amendments to previously filed and approved prospectuses violate section 120.535, Florida Statutes (1993). The broad issues raised in this appeal are whether the Division's decision to repeal Rule 61B-31.001(5) is "rulemaking," and, if so, whether such repeal violates section 120.54, Florida Statutes (1993), and whether repeal of this rule amounts to the institution of a non-rule policy violative of section 120.535. Because we agree with the hearing officer's conclusion that the elimination of the procedure for approval of amendments to prospectuses violates section 120.54 by improperly vesting the Division with unbridled discretion over the manner of performance of a statutorily mandated obligation to approve prospectuses, as well as the alternative holding that the repeal of this rule was an improper m...
...m. However, because his reasoning was based upon an erroneous interpretation of earlier decisions of this court, we reject the hearing officer's conclusion that the repeal of the rule as it relates to the length of viability of a prospectus violates section 120.54(4)....
...the rule no longer accomplished an appropriate implementation of section
723.012 if interpreted in that manner. Therefore the Division published notice of the proposed repeal of Rule 61B-31.001(5) in the Florida Administrative Weekly, as required by section
120.54(1)(b), Florida Statutes (1995)....
...Appeal, First District, and as ratified by subsequent legislative inaction. Finally, FMHA's petition asserted that the proposed repeal itself, as distinct from the policies allegedly being substituted for the rule, is invalid rulemaking pursuant to section 120.54(4) on four grounds: first, because the Division failed to follow the rulemaking procedures in section 120.54; second, because the Division exceeded its grant of rulemaking authority in that the repeal enlarges, modifies, or contravenes the law implemented as interpreted by the District Court of Appeal, First District; third, because the remai...
...se the repeal is arbitrary and capricious in view of earlier precedent finding the rule to be consistent with chapter 723. The hearing officer ruled that the repeal of Rule 61B-3.001(5) is an invalid exercise of delegated legislative authority under section
120.54(4) and that the repeal is also invalid because the non-rule policies that the Division is seeking to substitute for the rule are improper under section 120.535. The hearing officer did not expressly rule on the claim that the non-rule policy is an invalid exercise of delegated legislative authority under section
120.56. [1] THE CHALLENGE UNDER SECTION
120.54(4) The hearing officer found that the repeal of Rule 61B-3.001(5) meets the definition of a rule....
...addressing whether that provision makes the repeal of any rule subject to rulemaking challenge, or simply entitles interested parties to seek repeal of a rule in rulemaking proceedings, and to receive notice of amendments and repeals as required by section 120.54(1), thus permitting a challenge when the repeal has the corollary effect of creating a new rule....
...We agree with the hearing officer that, to the extent the elimination of an amendment process by repeal of the rule improperly vests the agency with unbridled discretion over review and approval of amendments to prospectuses, the repeal is a "rule" and violates section 120.54. The remaining issue in the section 120.54 challenge is whether the repeal of the portion of Rule 61B-31.001(5) which purports to define the period of viability of the prospectus is arbitrary and capricious because the repeal is, in and of itself, a rule which is *592 substantively in conflict with the statutes implemented....
...Accordingly, we hold that the present rule repeal is invalid because the elimination of an amendment process has the effect of vesting unbridled discretion in the Division over the manner of performance of a statutorily mandated obligation to approve prospectuses, in violation of section 120.54(4)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1995 WL 264116
...ted to specific facts and a specific petitioner, and which would require a response of such a general and consistent nature as to meet the definition of a rule, the agency should either decline to issue the statement or comply with the provisions of Section 120.54 governing rulemaking....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 17 I.E.R. Cas. (BNA) 583, 2001 Fla. App. LEXIS 2951, 2001 WL 227363
...e to exercise a right to a hearing. We disagree. Section
120.569(2)(c), Florida Statutes (1999) provides: Unless otherwise provided by law, a petition or request for hearing shall include those items required by the uniform rules adopted pursuant to s.
120.54(5)(b)4....
...Thus, if a petition for a hearing is dismissed, the agency's order must provide specific findings, conclusions, and reasons for the dismissal and allow the affected party to amend his petition. See City of Winter Park v. Metropolitan Planning Org. for Orlando Urban Area,
765 So.2d 797, 798 (Fla. 1st DCA 2000). Furthermore, section
120.54(5)(b)4, Florida Statutes (1999), requires an agency to pass uniform rules of procedure for the filing of petitions for administrative hearings under either sections
120.569 or
120.57. Section
120.54(5)(b)4 provides that the petition must include: a....
...The only item McIntyre failed to include was how he became aware of the School Board's action, a deficiency that we do not consider dispositive. Although McIntyre did not directly ask for a hearing, he did raise issues of disputed facts and his letter was sufficient to meet the minimum requirements listed in section 120.54(5)(b)4 for a hearing request....
...[1] We also note that the School Board did not notify McIntyre that his letter was insufficient to constitute a request for a hearing nor did it dismiss McIntyre's letter without prejudice and allow him to amend it so as to conform with the School Board's rules of procedure or section 120.54(5)(b)4....
...ORDER VACATED; REMANDED. W. SHARP and PALMER, JJ., concur. NOTES [1] Because a copy of the School Board's procedural, grievance, determination, or disciplinary policies are not in the record on appeal, we assume that McIntyre had to meet the minimum requirements under section 120.54(5)(b)4 in his request for a hearing....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1995 WL 92600
...District Court of Appeal of Florida, Fourth District. March 8, 1995. *1237 William E. Guy, Jr., Stuart, for appellant. Kenneth J. Plante, General Counsel, and Barrie J. Sawyer, Asst. General Counsel, Tallahassee, for appellees. PER CURIAM. Appellant filed a section 120.54, Florida Statutes (1993), rule challenge petition to challenge the validity of proposed amendments to Florida Administrative Code Rules 18-20.003 and 18-20.004, which relate to constructing docks in aquatic preserves, as well as the corresponding economic impact statement....
...that it failed "to sufficiently allege facts sufficient to show that the person challenging the proposed rule would be substantially affected by it." We reverse and remand as to the proposed amendments and affirm as to the economic impact statement. Section 120.54(4) grants to "[a]ny substantially affected person" standing to challenge the validity of a proposed agency rule "on the ground that the proposed rule is an invalid exercise of delegated legislative authority." In order to meet the substantially affected test of section 120.54(4), the petitioner must establish: (1) a real and sufficiently immediate injury in fact; and (2) "that the alleged interest is arguably within the zone of interest to be protected or regulated." See All Risk Corp....
...Thus, appellee's arguments that appellant's alleged injury is not the type of injury sought to be protected by the aquatic preserve act is, even if true, misplaced. In sum, the hearing officer erred in denying appellant standing to challenge the validity of the proposed rules pursuant to section 120.54(4)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1977 Fla. App. LEXIS 16187
...te a rule, the Board's failure to file a copy of the proposed reorganization plan with DOAH, as then required by the APA, was neither fatal to the action nor prejudicial to Dr. Mitchell. Rule challenge proceedings were not self-starting under former Section 120.54(3), nor are they now. Sections 120.54(4),.56, Florida Statutes (Supp....
...Mitchell did not attempt to challenge the intended action by proceedings under the statute relied on, and the Board's failure to prefile with DOAH did not impair "the fairness of the proceedings or the correctness of the action." [4] It is not shown the Board acted without adequate notice to affected persons, Section 120.54(1)....
...BOYER, C.J., and McCORD, J., concur. NOTES [1] Sec.
120.52(14), Fla. Stat. (Supp. 1976), in part defines a "rule" as "each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization of an agency... ." [2] Sec.
120.54(3), Fla....
...ve authority. The request seeking a determination under this subsection shall be in writing and must be received within 14 days after the date of publication of the notice." This provision was repealed June 26, 1975. Ch. 75-191, Laws of Fla. (1975), § 120.54, Fla....
...ness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure." Sec.
120.68(8), Fla. Stat. (Supp. 1976). [5] Sec.
120.68(6), Fla. Stat. (Supp. 1976). [6] Secs.
120.57, Fla. Stat. (Supp. 1974),
120.54(16), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1997 WL 352894
...However, as we observed in Florida Optometric Association, when an agency is called upon to issue a declaratory statement "which would require a response of such a general and consistent nature as to meet the definition of a rule, the agency should either decline to issue the statement or comply with the provisions of Section 120.54 governing rulemaking" (emphasis in the original)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1988 WL 62139
...strative review of an employee disciplinary action." However, PERC's order is not predicated on its interpretation of the accident report privilege, but rather on its duty to apply Model Rule 28-5.304. We agree with PERC that under the provisions of section 120.54(10), Florida Statutes (1986 Supp.), it was obligated to apply the above model rule in the absence of its own rule on the subject....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1992 WL 126599
...the Board of Trustees of the Internal Improvement Fund (Board) is an invalid rule constituting an invalid exercise of delegated legislative authority, due to the failure of the Board to materially follow applicable rulemaking procedures required by section 120.54, Florida Statutes (1989), a section of the Florida Administrative Procedure Act (APA)....
..., and report to the Board for final action in September 1990. On August 10, 1990, the Board officially noticed the proposed amendments to the above stated rules. On August 29, 1990, appellee Lost Tree Village Corporation filed a petition pursuant to section 120.54, Florida Statutes (1989), with the DOAH, challenging the proposed amendments....
...Private use of those lands is permissible when authorized by law. As an administrative body not specifically created in the Florida Constitution, the Board is a statutory entity and derives only those powers specified therein. See sections
253.02(1) and
120.54(15), Florida Statutes (1989); Grove Isle, Ltd....
...ted by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: (a) The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54; (b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7); (c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7); (d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or (e) The rule is arbitrary or capricious....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...thority because of an inadequate economic impact statement. By motion to dismiss the notice of appeal, PSC argues that the issues presented by this appeal are moot because the two proposed rules have been withdrawn by PSC pursuant to the mandates of Section 120.54(4)(c), Florida Statutes....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...The university appeals an order of a DOAH hearing officer determining that a document setting forth university procedures for award of merit salaries and other pay increases was an invalid rule because it was not subjected to the rulemaking process required by Section 120.54....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1992 Fla. App. LEXIS 7611, 1992 WL 157451
...Williams, General Counsel, and Gregory G. Costas, Asst. General Counsel, Florida Dept. of Transp., Tallahassee, for appellee. ALTENBERND, Judge. Dravo Basic Materials Company, Inc. (Dravo), appeals a hearing officer's determination in a rule-challenge proceeding brought pursuant to section 120.54(4), Florida Statutes (1989)....
...n. Longstanding DOT specifications required that limestone aggregate have 3.75% or less fine material at its point of use. In 1988, these specifications were held invalid because they had not been promulgated as rules under the procedures set out in section 120.54, Florida Statutes (1987)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 94 L.R.R.M. (BNA) 2607
...We have entertained United's petition for review because the Commission's order was final agency action on United's petition to the Commission to adopt a fair share rule. United was permitted to submit its petition for adoption of a fair share rule and the Commission was authorized to consider it because Section 120.54(5), Florida Statutes (Supp....
...It was proper for the Commission to consider the constitutional question because this question was inseparable from the question of whether to adopt the rule. When an agency thus considers the constitutional implications of a rule proposed to it under Section 120.54(5), it does not violate the doctrine of separation of powers or invade the judicial function....
CopyCited 5 times | Published | Supreme Court of Florida | 1994 WL 11607
...necessary for banking license had been met); Polk v. School Board of Polk County,
373 So.2d 960, 962 (Fla. 2d DCA 1979) (applying section
120.68(8) to agency's failure to prepare economic impact statement prior to adoption of rule in accordance with section
120.54(2)); School Board of Broward County v....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 285, 1987 Fla. App. LEXIS 6350
...s to this list would expand the Department's regulatory jurisdiction over OCAPI's lands, including the Rocky Creek area, and OCAPI filed a petition seeking an administrative determination of the invalidity of the proposed rule amendments pursuant to Section 120.54(4), Florida Statutes (1983)....
CopyCited 5 times | Published | District Court of Appeal of Florida
...Since the issues presented by the three cases are closely related and the cases have all been consolidated, we will address only those procedural issues raised by the parties, making no attempt to resolve any apparent problem regarding what constitutes final agency action when both F.S. 120.54(4) and F.S....
...ommission) which is the environmental standard-setting body of the Department, on December 1, 1976. The Industry filed a timely "Petition for Administrative Determination of A Proposed Rule" with the Division of Administrative Hearings pursuant to F.S. 120.54(4)....
...ission held its scheduled public hearing *762 on December 1 and 2, 1976, and "approved" the proposed rule over the Industry's objection. The Industry objected to the proceedings before the Commission on the ground that the action was prohibited by F.S. 120.54(4)(c)....
...On December 29 and 30, 1976, and January 4, 1977, a hearing was held before the hearing officer who rendered a final order on January 31, 1977, implicitly upholding the validity of the proposed rule. That order, declared to be "final agency action" by F.S. 120.54(4)(d) resulted in the filing of a petition for review in this court, which was assigned Case No....
...510 (1937), in reviewing administrative regulations relating to the production of gas by landowners, found that the test for validity was whether the regulations are found to have a reasonable relationship either to the prevention of waste or the protection of correlative rights, or whether they are arbitrary. F.S. 120.54(4), is the statute under which a hearing officer initially determines the validity or invalidity of a proposed agency rule. It provides that any substantially affected person may seek an administrative determination of invalidity on the ground that the proposed rule is "an invalid exercise of delegated legislative authority." The challenge under F.S. 120.54(4) is a two-step process: The challenge is first heard before an administrative hearing officer *763 whose order "shall be final agency action." That final agency action is subject to judicial review. Both the hearing officer (acting in a detached quasi-judicial capacity) and this Court should determine from the evidence presented whether or not there is competent, substantial evidence to support the validity of the rule. Thus, in a 120.54 hearing, the hearing officer must look to the legislative authority for the rule and determine whether or not the proposed rule is encompassed within that grant....
...To facilitate disposition on remand, we further hold that the hearing officer correctly ruled that the economic and environmental impact statements prepared in compliance with F.S.
403.804(2) satisfies the requirements of that law and that the economic impact statement sufficiently satisfies the requirements of F.S.
120.54(2)....
...uary 31, 1977, the Industry urges that the Commission's action was a nullity and that the rule was not therefore properly before the Governor and Cabinet for final action in accordance with F.S.
403.804(2). The basis of such contention is found in F.S.
120.54(4)(c) which states that "No rule shall be adopted until 21 days after the notice required by subsection (1) or until the hearing officer has rendered his decision, as the case may be." The controversy revolves around a construction of the word "adopted" as used in F.S.
120.54(1)(c) and as used in F.S.
403.804(2) which statutes must, in this type of case, be construed so as to harmonize. A reading of the language in F.S.
120.54, and related sections, reveals that rule "adoption" is a process. The process of adoption outlined in the Florida Administrative Procedure Act (APA) includes the publication and delivery of requisite notice, (F.S.
120.54(1)) the development of an economic impact statement (F.S.
120.54(2)), the consideration (under certain circumstances) of evidence and arguments presented at a public hearing (F.S.
120.54(3)), the filing of the proposed rule with the legislative Administrative Procedures Committee (F.S.
120.54(11)(a)) and the filing of the proposed rule with the Department of State (F.S.
120.54(11)(b))....
...ises when (as in the instant case) a proposed environmental standard is more stringent than a federal standard. In such a case, the Commission initially adopts a rule subject to final action by the Governor and Cabinet. (F.S.
403.804(2)). Finally, F.S.
120.54(12), states that a proposed rule " shall be adopted on being filed with the Department of State and become effective twenty days after being filed, on a later date specified in the rule, or on a date required by statute." (emphasis added) The latter statute provides a definite benchmark for the completion of the adoption process. The Industry contends that it is the Commission's "approval" portion of the rulemaking process which is the "adoption" prohibited by F.S.
120.54(4)(c) until after the hearing officer has rendered his decision....
...The Industries statutory interpretation is consistent with other provisions of the APA. Normally, the rule adoption process consists of a series of inexorable, nondiscretionary activities within specific time frames. Notice of proposed rulemaking must be published prior to the intended action. (F.S. 120.54(1)) The filing of the Proposed Rule completes the adoption process. (F.S. 120.54(12)) The completion of a rulemaking public hearing held by the Commission would thus normally set into motion the statutory timetable....
...No later than forty-five days after the notice of proposed rulemaking, or no later than ten days after the public hearing (if the hearing extends beyond the 45-day period), the proposed rule must be filed with the Secretary of State. The proposed rule is then finally adopted. F.S. 120.54(4)(c), however, prohibits the adoption of a proposed rule until after the hearing officer renders his decision on the validity of the proposed rule. The hearing officer's ruling may not be available for as long as approximately eighty-four days from the date of the notice of intent to adopt a rule. (The petition for administrative determination must be filed within 14 days of the notice. F.S. 120.54(4)(b). A hearing officer must be assigned within 10 days after the receipt of a well pleaded petition. F.S. 120.54(4)(c)....
...igned. Id. The hearing officer must render his decision within 30 days after the conclusion of the hearing. Id.) The Industries' interpretation of the law also provides a logical solution to the tension between the mandatory filing requirements of F.S. 120.54(11)(b) and the prohibition against premature adoption set forth F.S. 120.54(4)(c). Once the public hearing is "stayed" pending the outcome of the hearing before the hearing officer the time limits in F.S. 120.54(11)(b) are likewise held in abeyance....
...ed the term "adopt" in a manner that refers to the "approval" of a rule by the Commission. This is particularly significant since the environmental rulemaking legislation was passed after the passage of the general rulemaking procedures set forth in Section 120.54, Florida Statutes....
...Where two statutes deal with a similar subject matter, the court must make every effort to find a harmonious construction of both statutes. ( Mann v. Goodyear Tire & Rubber Co.,
300 So.2d 666 (Fla. 1974)) The Industries correctly contend that F.S.
403.804(2) can only be read harmoniously with F.S.
120.54(4)(c) if the word "adopted" in the latter statute is construed to refer to the process of "approving" a proposed rule....
...Where legislative language is susceptible to more than one interpretation, the interpretation which avoids an unreasonable result should be preferred. (See Foley v. State,
50 So.2d 179 (Fla. 1951); Gracie v. Deming,
213 So.2d 294 (Fla. 2nd DCA 1965)) In summary, F.S.
120.54(4)(c), expressly prohibited the Commission from holding a public hearing and adopting the Proposed Rule until after the hearing officer rendered his ruling on the validity of the Proposed Rule....
...FF-340, the Industry seeks reversal of a summary judgment entered by the Circuit Court of Leon County in a proceeding wherein the Industry sought to have that court declare that the Commission's action in "approving" the proposed rule was contrary to the requirements of F.S. 120.54(4)(c) and to have the Department enjoined from presenting the proposed rule to the Governor and Cabinet for final action....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1993 WL 5057
...schools or colleges by rule, rather than by order. We affirm the issue on cross-appeal without discussion. Finding no error in the hearing officer's ruling that the hygienists have standing to challenge the validity of the proposed rules pursuant to section 120.54(4), Administrative Procedure Act, and that the proposed rules are an invalid exercise of delegated legislative authority, we affirm both as to the appeal and cross-appeal....
...The hearing officer denied the motions to dismiss, concluding, albeit not without some difficulty, that the hygienist association had standing. The Board contends, as it did below, that the hygienists' petitions and supporting evidence failed to demonstrate the hygienists status as a "substantially affected person," under section 120.54(4)(a), Florida Statutes (1989), as interpreted by the courts....
...ienists meet the educational and training requirements established by law, are sufficient to satisfy the statutory requirement of stating "facts sufficient to show that the person challenging the proposed rule would be substantially affected by it." Section 120.54(4)(b), Florida Statutes....
...ng the levels of education and competence required for licensing to afford them standing to challenge an unauthorized encroachment upon their practice. Since the individual members of the hygienist association are "substantially affected person[s]," section 120.54(4), the association has standing as the representative of its members to challenge the validity of the proposed rules....
...rule challenge proceeding, because there can be a difference between the concept of "substantially affected" under section
120.56(1), and "substantial interests" under section
120.57(1).
538 So.2d at 880. Because challenges to proposed rules, under section
120.54(4), may be brought by a "substantially affected" person as is the case under section
120.56 rule challenges, the distinction drawn in State Board of Optometry is applicable to challenges of proposed rules....
...administrative law. In her exhaustive treatise, Access to Florida Administrative Proceedings, 13 Fla.St.U.L.Rev. 965, 1014 (1986), Professor Dore asserted that the "substantially affected person" access or standing standard for rule challenges under section 120.54(4) "was intended to create an opportunity for a citizen initiated check on rule making that exceeded delegated statutory authority." Further, she explained: "It was designed to promote an inexpensive and effective way for persons who w...
...In all fairness, to deny the hygienists' standing to challenge unauthorized actions of the Board detrimental to their interests would produce the anomalous result that virtually no one would have such standing. In our view, under the facts presented here, such a result would thwart the purposes of section 120.54(4)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1990 WL 14888
...Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services,
396 So.2d 1194 (Fla. 1st DCA 1981). Emergency rules may be promulgated when an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action. Section
120.54(9), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...Once again, HRS returned the applications because Health Care failed to comply with rule 10-508(1)(b). Consequently, Health Care sought and obtained a section
120.57 administrative hearing on the refusal of HRS to consider its applications and grant or deny the certificates of need and obtained a section
120.54 hearing on the validity of rule 10-508(1)(b)....
...Appellant contends that the economic impact statement is insufficient because it fails to address the economic consequences to a particular applicant resulting from its failure to comply with the rule's requirement to serve letters of intent on local health councils. Section 120.54, Florida Statutes (1981), sets forth the requirements for an economic impact statement in connection with an agency's promulgation of a rule....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 84 Oil & Gas Rep. 445, 9 Fla. L. Weekly 2315, 1984 Fla. App. LEXIS 12584
...definition of `original cost' *963 provided in Rule 12C-1.15(4)(b)5, F.A.C., is a valid exercise of delegated legislative authority." We find that the rule itself contains no reference to Section
220.42(1), although under the rule-making provisions, Section
120.54(7), Florida Statutes, each rule is required to contain a reference to "the section or subsection of the Florida Statutes or Laws of Florida being implemented, interpreted, or made specific." The basic issue in this case, as indicated i...
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...Leslie King O'Neal, of Markel, Scott, McDonough & O'Neal, Orlando, for appellees. WENTWORTH, Judge. Appellant seeks review of an administrative order declaring invalid portions of proposed agency rules relating to medical fees governed by Florida's Workers' Compensation Act. [1] We conclude that a § 120.54(4)(a), Florida Statutes, administrative rule challenge, rather than a circuit court action as appellant suggests, was the proper method for challenging the proposed rules, and we further conclude that the hearing officer correctly determined that the proposed rules, as they relate to physical therapists' fees, are invalid due to the absence of a § 120.54(2)(a), Florida Statutes, economic impact statement....
...2nd DCA 1979); however, these circumstances were not shown to exist in the present case. The absence of an economic impact statement is therefore grounds for invalidity of those portions of the proposed rules relating to physical therapists' fees. See § 120.54(2)(c)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...ce zone lines around some of the junior high schools of the school district. The hearing officer determined that the action of the School Board in each instance was invalid because the action was not taken pursuant to the rule-making requirements of Section 120.54, Florida Statutes (1977)....
...Likewise, the parent-teacher association has no standing to challenge the subject orders. While it may be that these parents might be considered an "affected party" entitled to present evidence and to present argument before an agency in a rule adoption procedure under Section
120.54(3), this record falls far short of establishing that such parents or children were "substantially affected" so as to clothe them with standing to bring about a rule challenge under the provisions of Section
120.56, Florida Statutes (1977)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...related programs. Section 381.494(7)(a), Fla. Stat. (1981), [2] provides that HRS shall issue or deny certificates of need "in accordance with present and future federal and state statutes." Pursuant to statutory authority under section 381.494 and section 120.54, Florida Statutes, HRS has promulgated, among others, Rules 10-5.11 and 10-5.12, Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2008 WL 4067312
...Lauderdale, for Appellee. BROWNING, C.J. The Agency for Health Care Administration (AHCA) appeals a final order of the Division of Administrative Hearings that held that a formula used by AHCA to calculate overpayments to Medicaid providers violated section 120.54(1)(a), Florida Statutes (2007)....
...er sampling methodology. The cluster sampling formula has been used by AHCA for approximately twenty years to calculate Medicaid overpayments. Counsel stipulated that the formula has not been adopted as a rule pursuant to the procedures set forth in Section 120.54, Florida Statutes (2007). The administrative law judge issued a final order on August 23, 2007, holding that the cluster sampling formula violates *986 Section 120.54(1)(a), Florida Statutes, and ordering AHCA to immediately discontinue all reliance on the statement or any substantially similar statement as a basis for agency action....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1990 WL 133202
...ed lands, and because of an abundance in this state of flat and low-lying lands which border on navigable bodies of water, there is a need to establish a uniform method for determining an OHWL. Subsequent to a rule challenge hearing held pursuant to section 120.54(4), Florida Statutes, the hearing officer entered his final order, finding most of the contested rules invalid but concluding that certain specified rules constituted a valid exercise of the Board of Surveyors' delegated legislative authority....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1991 Fla. App. LEXIS 9068, 1991 WL 180684
...Fingar of Huey, Guilday, Kuersteiner & Tucker, P.A., Tallahassee, for respondent. PER CURIAM. Golden Rule Insurance Company petitions this court for review of an emergency rule promulgated by the Florida Department of Insurance. We have jurisdiction pursuant to section 120.54(9)(a)3., Florida Statutes (Supp....
...An emergency rule states the Department's position unequivocally, is legally binding, and is effective immediately. 17 F.A.W. at 3272. [1] Emergency rules must be justified by agency findings of immediate danger to the public health, safety, or welfare. Fla. Stat. § 120.54(9)(a)....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1999 WL 933755
..."did not prohibit such a filing." However, it contends that the rules did not authorize such a filing, either. PERC correctly notes that rule 28-106.217 was one of the "uniform rules of procedure" adopted by the Administration Commission pursuant to section 120.54(5)(a)1, Florida Statutes (Supp.1996). Relying on section 120.54(5)(a)1, PERC argues that rule 28-106.217 did not become applicable to proceedings before it until February 13, 1998, when it formally adopted the "uniform rules of procedure" and that, as a result, responses to exceptions were not authorized until that date, which was some five months after Gaston's attorneys had filed the response. We find this argument unpersuasive. To the extent pertinent, section 120.54(5)(a)1, Florida Statutes (Supp.1996), reads: By July 1, 1997, the Administration Commission shall adopt one or more sets of uniform rules of procedure which shall be ......
...It is undisputed that the Administration Commission adopted a set of "uniform rules of procedure," which included rule 28-106.217, and that those rules were filed with the Department of State on April 1, 1997. Nevertheless, PERC relies on the second sentence of section 120.54(5)(a)1 "Agencies must comply with the uniform rules by July 1, 1998"for the proposition that rule 28-106.217 did not become applicable to it until it adopted the "uniform rules," on February 13, 1998. We are unable to accept PERC's argument because to do so would render meaningless the final sentence of section 120.54(5)(a)1 "On filing with the department, the uniform rules shall be the rules of procedure for each agency subject to this chapter unless the Administration Commission grants an exception to the agency under this subsection." We are of the opinion that the only way to harmonize the second sentence of section 120.54(5)(a)1 with the final sentence is to read the statute as intended to provide that the Administration Commission's "uniform rules of procedure" would become binding on agencies subject to chapter 120 upon filing with the Department of S...
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 2344, 1985 Fla. App. LEXIS 16239
...andards, or (b) a minimum of five year's experience as a full-time fire safety inspector as of January 1, 1982. Although the hearing officer determined that the Fire Marshal's letter was not developed under rulemaking procedures required by the APA, section 120.54, Florida Statutes (1981), he concluded that McCarthy did not contest this issue....
...Further, he asserts that the hearing officer correctly found the requirements imposed by the letter fell within the definition of a rule under the APA. But, he argues that this letter, while purporting to be a rule, was invalid, since it was not adopted under section 120.54....
...Here, the Fire Marshal purported to implement section 633.081(2)(a) by his letter of October 16, 1981, prescribing policy. His method of implementation did not comply with proper APA rulemaking procedures, nor was it adopted under the APA's emergency procedures for rule promulgation. See § 120.54(1)-(9)....
...otal state banking picture must be considered in reviewing an application for a new bank. The court opined that "[t]he APA does not chill the open development of policy by forbidding all utterance of it except within the strict rulemaking process of Section
120.54." Id.,
346 So.2d at 580....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2012 WL 4800987, 2012 Fla. App. LEXIS 17433
...ties (“APD”), Appellee, constituted an unadopted rule, and that APD improperly used the agency statement to assess the eligibility of individuals for APD services because it was not adopted as a rule through the rulemaking procedures required by section 120.54(l)(a), Florida Statutes (2009)....
...also filed a Petition for Leave to Intervene and Petition for Administrative Determination of Invalidity of Agency Rule with the Division of Administrative Hearings. 1 In his petition, J.S. sought a determination that APD’s agency statement was an unadopted rule in violation of section 120.54(l)(a)....
...However, the parties filed a joint stipulation agreeing that APD’s agency statement had been in effect since December 29, 2006, and that APD relied upon this agency statement until April 20, 2010. Also, the parties agreed that the agency statement constituted an unadopted rule in violation of section 120.54....
...It does not authorize fees or costs for intervenors, and absent such authority, no fees ... can be awarded to counsel for J.S. in this case. The ALJ then concluded as follows: APD 04-007 is a statement meeting the definition of a rule in section
120.52(16), and has not been adopted as a rule, in *315 violation of section
120.54(l)(a)....
...“[T]he standard of review of an ALJ’s final administrative order determining an issue of statutory interpretation is de novo.” A. Duda & Sons, Inc. v. St. Johns River Water Mgmt. Dist.,
17 So.3d 738, 742 (Fla. 5th DCA 2009) (emphasis omitted). Section
120.54(l)(a), Florida Statutes (2009), provides that “each agency statement defined as a rule by s....
...exceptions listed in that subsection that are not applicable here. Section
120.56(4)(a), Florida Statutes (2009), allows “[a]ny person substantially affected by an agency statement” to seek a determination from an ALJ that the statement violates section
120.54(l)(a)....
...gainst an agency pursuant to section
120.56(4), provides as follows: (4) Challenges to agency action pursuant to section
120.56(4).— (a) If the appellate court or administrative law judge determines that all or part of an agency statement violates s.
120.54(l)(a), or that the agency must immediately discontinue reliance on the statement and any substantially similar statement pursuant to s....
...mplement or retain a delegated or approved program or to meet a condition to receipt of federal funds. (b) 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)(a), such notice shall automatically operate as a stay of proceedings pending rulemaking....
...y upon a finding that the agency received notice that the statement may constitute an unadopted rule at least 30 days before a petition under s.
120.56(4) was filed and that the agency failed to publish the required notice of rulemak-ing pursuant to s.
120.54(3) that addresses the statement within that 30-day period. Notice to the agency may be satisfied by its receipt of a copy of the s.
120.56(4) petition, a notice or other paper containing substantially the same information, or a petition filed pursuant to s.
120.54(7)....
...We note, initially, the challenge to APD’s agency statement was subject to an automatic stay. In a challenge to an agency action under section
120.56(4), paragraph (b) provides that, upon notice to the ALJ before the final hearing that the agency has published a notice of rulemak-ing pursuant to section
120.54(3)(a), such notice shall automatically operate as a stay of the proceedings pending rulemaking....
...Accordingly, the ALJ properly lifted the stay that was created pursuant to paragraph (b). Pending the final hearing, the parties filed a joint stipulation to the effect that the agency statement met the definition of a rule in section
120.52(16), and because it was not adopted through the rulemaking process, it violated section
120.54(l)(a). Paragraph (a) authorizes an award of attorney’s fees and costs in a challenge to an agency action pursuant to section
120.56(4) where the appellate court or the ALJ “determines that all or part of an agency statement violates s.
120.54(l)(a), or that the agency must immediately discontinue reliance on the statement and any substantially similar statement pursuant to s....
...ing. Subsequently, the ALJ entered the Summary Final Order in which the ALJ properly determined that the agency statement met the definition of a rule in section
120.52(16), that because it was not adopted through the rulemaking process, it violated section
120.54(l)(a), and that to the extent APD continued to rely on the agency statement, it must stop doing so....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2003 Fla. App. LEXIS 16945, 2003 WL 22513826
...I Drive GC, Inc., FCHR Case No. 98-2228 (Order of Remand in DOAH Case No. 01-2408, dated Apr. 17, 2002) (citing Debose ). 20. In reaching its decision in Debose , the Commission relied on its procedural rules, not the Uniform Rules adopted pursuant to Section 120.54(5)....
...The Uniform Rules became effective on April 1, 1997, and as of that date, the Uniform Rules "shall be the rules of procedure for each agency subject to [Chapter 120] unless the Administration Commission grants an exception *1144 to the agency ..." See Section 120.54(5)(a)1....
...24. The Commission does not appear to have received an exception from the Administration Commission for its procedural rules in Rule Chapters60Y-4 or 60Y-5. There is no separate chapter in the Commission's rules identifying such an exception. See Section 120.54(5)(a)3....
...As a result, the commission's procedural rulesat least to the extent that they conflict with the Uniform Ruleshave not been effective since at least July 1, 1998. See Dept. of Corrections v. Saulter,
742 So.2d 368, 369-70 (Fla. 1st DCA 1999) (characterizing the effect of Section
120.54(5)(a) as a "legislative repeal" of agency procedural rules in conflict with the Uniform Rules)....
CopyCited 4 times | Published | Florida 4th District Court of Appeal
...ON PETITION FOR REHEARING DOWNEY, Judge. Petitioner Bert Rodgers Schools of Real Estate seeks review by certiorari of the Florida Real Estate Commission's action in amending Rules 21V-301 through 21V-307 of the Florida Administrative Code. Pursuant to Section 120.54(1), Florida Statutes (1975), the respondent gave notice of its intention to amend the aforesaid rules. In accordance with Section 120.54(2), petitioner requested an opportunity to be heard concerning said proposed amendments....
...In addition, petitioner asserted that its substantial interests would be affected in the proceedings and requested that it be afforded a hearing pursuant to Section
120.57, Florida Statutes (1975). On December 22, 1975, the respondent held the hearing required by Section
120.54 (2)....
...Petitioner appeared and again requested that it be afforded a full hearing as authorized by Section
120.57. The pertinent portion of the transcript of the December 22nd hearing demonstrates that the respondent never exercised the discretion which Section
120.57 affords it to determine whether the Section
120.54 hearing was adequate to protect petitioner's interests. Petitioner timely asserted that its "substantial interests" would be affected in the proceedings, but respondent never permitted petitioner to demonstrate that the December 22nd hearing held pursuant to *228 Section
120.54(2) was not adequate to protect those interests....
...We do not say this critically because these waters are unchartered and only time and experience will enable those dealing with the Administrative Procedure Act to know with any degree of certitude the proper application of its legislative directives. Nevertheless because petitioner (in effect) asserted that the Section 120.54 (2) input hearing would not be sufficient to protect its substantial interests, petitioner was entitled to have the Commission exercise its discretion and make an express determination as to whether the input hearing was adequate to protect the interests asserted....
...22, 1975) were letters petitioner had sent respondent. Those letters set forth the interests petitioner asserted were substantial. The letters also contained assertions that petitioner's "substantial interests" would not be adequately protected by a Section
120.54(2) hearing and specifically requested a Section
120.57 hearing, setting forth the issues petitioner wished to present at such a hearing. Without anything to refute these matters, a conclusion that petitioner had failed to demonstrate that the Section
120.54(2) proceedings of December 22nd were inadequate to protect its interests is not supported by the record and is thus arbitrary....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1995 WL 698885
...3(3), Florida Statutes (Supp. 1994), or the proposed rule, or otherwise shown to be regulated or controlled under chapter 440 or the proposed rule." The hearing officer also determined that the potential financial impact to TVC was speculative. *374 Section 120.54(4), Florida Statutes, provides that any "substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative...
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 19309, 2006 WL 3327632
...(Emphasis added.) ANALYSIS Under section
120.52(1)(b)7., Florida Statutes (2004), the School Board is an agency subject to the Administrative Procedure Act. The School Board denies that its recommendation constituted a rule, but concedes that, if it does, it was not adopted in compliance with section
120.54's rulemaking procedures....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...[1] On May 29, 1992, appellees *805 Bradley, Balester, and Englert, workers' compensation claimants receiving treatment from chiropractors; Donald H. Woeltjen, D.C.; and the Florida Chiropractic Association, Inc., filed a petition to challenge the proposed rules, pursuant to section 120.54(4), Florida Statutes (1991)....
...the "accrediting standards" of CARF [2] ; (4) the proposed new rules amend or modify section
440.13, and exceed the authority for rulemaking delegated to the Division, "constituting an invalid exercise of delegated ... legislative authority under Subsection
120.54(4), Florida Statutes (1991)......
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1991 WL 70841
...In short, I cannot agree with the majority that the rule comports with the obvious statutory purpose underlying the requirement of "extensive" use of clerical personnel; instead, I would hold that the rule is an invalid exercise of delegated legislative authority. Section 120.54(4), Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1993 WL 247145
...e Procedure Act also provides for the adoption by each administrative agency of its own uniform rules of procedure or the use of applicable model rules of procedure promulgated by the Administration Commission and filed with the Department of State. § 120.54(10), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2002 WL 265851
...ipate in the discretion of the hearing officer under §
120.52(12)(c), but as persons "whose substantial interests will be affected by proposed agency action" under §
120.52(12)(b) and thus are "substantially affected persons" within the meaning of §
120.54(4)....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2001 WL 10391
...We reverse the ALJ's ruling on the four remaining issues in the appeal and affirm the ALJ's rulings on the issues raised in the cross-appeal. Pinellas and various other parties filed numerous petitions for administrative proceedings pursuant to sections 120.535,
120.54, and
120.56, Florida Statutes (1995), challenging proposed and existing rules and agency statements of the District governing the issuance of Water Use Permits (WUPs)....
...The basis for a challenge to an agency statement under this section is that the agency statement constitutes a rule as defined by section
120.52(15), Florida Statutes (Supp. 1996), [12] but that it has not been adopted by the rule-making procedure mandated by section
120.54....
...The ALJ recognized this principle in another context. With reference to Pinellas' challenge to the reuse provisions in the proposed subsection to BOR 3.1, the ALJ found that "consistency with State Water Policy is not properly resolved under sections
120.54 or
120.56 and does not provide a basis for invalidating an existing or proposed rule....
...[9] In June 2000 the term "water policy goals" was amended to read "water resource implementation goals." [10] This section was amended in 1998. See ch. 98-200, § 83, Laws of Fla. It now reads: "In administering the provisions of this chapter the governing board has authority to adopt rules pursuant to ss.
120.536(1) and
120.54 to implement provisions of law conferring powers or duties upon it." §
373.113, Fla.Stat. (1999). [11] Previously section 120.535(2), Florida Statutes (1993). [12] Previously section
120.52(16), Florida Statutes (1993). [13] The incorporation by reference was pursuant to section
120.54(8), Florida Statutes (1993), now authorized in substantially similar form by section
120.54(1)(i), Florida Statutes (1999)....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...[4] Under the Administrative Procedure Act, each agency rule shall be accompanied by "a reference to the specific rulemaking authority pursuant to which the rule is adopted[ ] and a reference to the section or subsection of the Florida Statutes or the Laws of Florida being implemented, interpreted, or made specific." § 120.54(3)(a)(1.), Florida Statutes (2003); see also Osterback v....
...1st DCA 2004) ("[A]n agency engaging in rulemaking must identify both the statutory authority for the rulemaking and a statute or act to be implemented by the rulemaking."); Dep't of Health & Rehab. Servs. v. Fla. Ass'n of Academic Nonpub. *1172 Sch.,
510 So.2d 1028, 1030 (Fla. 1st DCA 1987) ("In further contravention of §
120.54, the legal authority cited by the proposed rule provides neither specific nor implied rulemaking authority to HRS with regard to the rule in question.")....
...Section
120.52(8), Florida Statutes (2003), lists the circumstances under which a proposed or existing rule is invalid, and specifies that the rule is invalid if any one of the following applies: (a).... (b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s.
120.54(3)(a)1.; (c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s.
120.54(3)(a)1....
CopyCited 4 times | Published | Supreme Court of Florida
...Whether estimated cost may or may not ever be reducible to a promulgated rule is not before us at this time. The APA does not chill the open development of policy by forbidding all utterance of [policy] except within the strict rulemaking process of Section 120.54... . It would immediately stifle [agency] policymaking and ultimately destroy the APA to label [every statement of policy in a final order] a "rule" concerning which Section 120.54 requires notice of its intended utterance, an estimate of its economic impact, publication in Florida Administrative Weekly, public debate, review by the Administrative Procedures Committee and final publication in the Florida Administrative Code....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...ding, that the environmental, social, and economic benefits of the designation do not outweigh the associated costs, [7] is a finding not supported by competent substantial evidence. However, this is a direct appeal from a rule enactment pursuant to §
120.54, and not an appeal from a rule challenge pursuant to §
120.56....
...That is, they have not shown a flagrant abuse of discretion on the part of the Commission in adopting the rule amendment. In their final point, appellants argue that the designation was invalid because the economic impact statement compiled by the Department in accordance with § 120.54(2)(a) was insufficient....
...As a matter of law, the economic impact statement was sufficient. As in State Department of Insurance v. Insurance Service Office,
434 So.2d 908 (Fla. 1st DCA 1983), [14] the Department's statement is a lengthy (ten page) document which complies paragraph by paragraph with the substantive requirements of §
120.54(2)(a)....
...ew, their argument would be unavailing since there is competent substantial evidence in the record indicating that the social, environmental and economic benefits of the designation outweigh the costs. [12] Fla. Admin. Code Rule 17-3.041(2)(f). [13] Section 120.54(2)(a)2 provides: (2)(a) Each agency, prior to the adoption, amendment, or repeal of any rule, shall provide information on its proposed action by preparing a detailed economic impact statement....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...tion on sale, a two month closed season and certain gear restrictions. [1] Before the proposed rules were given the final *937 approval of the Governor and Cabinet as required by § 370.027, *938 Fla. Stat. the appellees filed a petition pursuant to § 120.54(4), Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2002 WL 1972380
...its November 6, 2000 notification letter. DEP represented that notice was presumed to have been received pursuant to Rule 62-110.106(3) of the Florida Administrative Code. [2] The order further stated that the Accardis' petition did not comply with section 120.54(5)(b)4, Florida Statutes, and Rule 28-106.201(2) of the Florida Administrative Code as it did not include: (a) A statement of all disputed issues of material fact....
CopyCited 4 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 451, 2011 Fla. LEXIS 1900, 2011 WL 3568804
...this case, is a quasi-legislative function.”). Moreover, the Legislature has delegated specific responsibilities to agency heads, such as the authority to determine whether to go forward with proposing, amending, repealing, or adopting rules. See § 120.54(3)(a)(1), Fla. Stat. (2010) (providing that, prior to the adoption, amendment, or repeal of any rule, the agency head must give approval); § 120.54(3)(e)(1), Fla. Stat. (2010) (providing that, prior to the filing of the proposed rule with the Department of State, the agency head must give approval). This authority of the agency head cannot be delegated or transferred. See § 120.54(1)(k), Fla....
...When adopting rules, the agencies must specifically conform to the rulemaking procedure enacted by the Legislature as the Florida Administrative Procedure Act in chapter 120, Florida Statutes. First, the agency must provide preliminary notice of the development of the proposed rule in the Florida Administrative Weekly. See §
120.54(2), Fla. Stat. (2010). Second, upon approval of the agency head, the agency must give a more thorough notice of the intended action in the Florida Law Weekly, and this notice must be published at least 28 days prior to the intended action. See §
120.54(3)(a), Fla. Stat. (2010). The agency must file a copy of the proposed rule with the Administrative Procedures Committee as well. See §§
120.54(3)(a)4;
120.52(4), Fla. Stat. (2010). Third, under certain circumstances and upon the request of any affected person, the agency must provide such persons the opportunity to present evidence and make arguments on all issues under consideration. See §
120.54(3)(c), Fla. Stat. (2010). If all of the statutory requirements are met, the rule is officially “adopted” upon filing with the Secretary of State, and the rule becomes effective twenty days after this filing. See §
120.54(3)(e)6, Fla. Stat. (2010). However, if an agency finds that “an immediate *712 danger to the public health, safety, or welfare requires emergency action,” it may adopt “any rule necessitated by the immediate danger” — i.e., an emergency rule. See §
120.54(4), Fla....
...Executive Order 11-72 mandates that absolutely no required notice may be published without the approval of OFARR. Fla. Exec. Order No. 11-72, § 1 (April 8, 2011). Pursuant to the APA, however, agencies are required to provide notice prior to the adoption, amendment, or repeal of any rule (other than an emergency rule). § 120.54(3)(a)(l), Fla....
...Wright,
76 So.2d 863, 864 (Fla.1955). Moreover, the dissents’ failure to address the provisions of the APA delegating to agency heads the authority to determine whether to go forward with proposing, amending, repealing, or adopting rules — i.e., sections
120.54(3)(a)(1) and
120.54(3)(e)(1), Florida Statutes (2010) — an authority that cannot be delegated by any entity other than the Legislature, demonstrates the absence of support for the position advanced....
...See Canady, C.J., dissenting op. at 717; Polston, J., dissenting op. at 724. Apparently, the dissents believe that the Legislature only intended that the agency head not be permitted to redelegate or transfer the delegated power to approve pursuant to section 120.54(1)(k), Fla. Stat. (2010) within the agency, and that, in light of the Governor’s gatekeeper role in deciding what rules would be proposed, the agency head’s role pursuant to sections 120.54(3)(a)(1) and 120.54(3)(e)(1) is nothing more than that of a figurehead, whose authority is purely illusory....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...The hearing officer found that appellant's argument had not been substantiated by the evidence. We affirm this finding. *262 HRS next argues that rule 10-17.001, which contains definitions and general provisions applicable throughout chapter 10-17 of the rules, is invalid because it contains more than a single subject. Under section 120.54(8), Florida Statutes (1983), each adopted rule must be limited to one subject....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 17206, 36 Fla. L. Weekly Fed. D 2369
...y provided procedures. The controlling statute does not require any formal process for delivery of the written charges. §
1012.33(6)(a), Fla. Stat. (2010). Likewise, the Uniform Rules developed by the Division of Administrative Hearings pursuant to section
120.54(5), Florida Statutes, do not designate a formal process for delivery....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2004 WL 2402451
...The Florida Democratic Party (FDP) petitions for review of an emergency rule adopted by the Florida Department of State. It contends that the findings of immediate danger, necessity, and procedural fairness on which Emergency Rule 1SER04-1 is based are insufficient under section 120.54(4), Florida Statutes (2004), requiring a showing of such circumstances, and Florida case law....
...l recounts in close elections and those who are not. We cannot agree. If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger. § 120.54(4)(a), Fla. Stat. (2004). Section 120.54(4)(a)3 provides that an "agency's findings of immediate danger, necessity, and procedural fairness shall be judicially reviewable." Because of the accelerated emergency rulemaking process, judicial review takes place without an intervening administrative challenge to exhaust administrative remedies....
...The courts generally do not concern themselves with the substantive validity of the emergency rule. See Krajenta v. Div. of Workers' Comp.,
376 So.2d 1200, 1202 (Fla. 2d DCA 1979). Instead, the concern is whether the agency followed the requirements of section
120.54(4)(a). Given the limited nature of our review, we deem the reasons given by the Department to be in compliance with the standard set forth in section
120.54(4)....
...It is not our review responsibility, however, in deciding the validity of the rule, whether other means may have been more appropriate. We only look to the reasons the Department expressed and, in so doing, we are unable to say that it failed to comply with the directions of section 120.54(4). We deny the petition for review; however, we certify to the Florida Supreme Court the following question, which we consider to be of great public importance: WHETHER, UNDER SECTION 120.54(4), FLORIDA STATUTES (2004), THE DEPARTMENT OF STATE SET FORTH SUFFICIENT JUSTIFICATION FOR AN EMERGENCY RULE ESTABLISHING STANDARDS FOR CONDUCTING MANUAL RECOUNTS OF OVERVOTES AND UNDERVOTES, AS APPLIED TO TOUCHSCREEN VOTING SYSTEMS? No motion for rehearing shall be entertained....
...Despite this directive, the Department took no action until April 2004, when it attempted to promulgate a rule that would avoid manual recounts altogether. Now, in the face of an administrative order invalidating that rule, the Department maintains that the need for recount procedures is an "emergency." Section 120.54(4), Florida Statutes sets out strict requirements for emergency rules....
...A meeting was held to discuss the recount procedures, and then on the day before early voting was set to begin, the Department promulgated the emergency rule at issue. I do not believe that this was the *1155 kind of "procedural fairness" the Legislature had in mind when it enacted section 120.54(4), Florida Statutes....
...These challenges now facing the petitioner and the courts could have been avoided had the Department acted expeditiously. Because the delay was prejudicial and, in my view, inexcusable, I believe that the Department has failed to meet the "procedural fairness" requirement of section 120.54(4), Florida Statutes....
...or or by some form of tampering, the error would not show up in the recount. The "ballot image total" would be the same as it was before the recount, despite any error or alteration. As the majority correctly notes, review of an emergency rule under section 120.54(4) is limited to procedural issues and does not ordinarily involve the validity of the rule on the merits....
...[2] An emergency rule is the equivalent of a final order. In many cases, there would be no further regulatory action. However, in the circumstances presented here, the emergency rule is in the nature of an intermediate order. The emergency rule will expire by operation of law after 90 days, see § 120.54(4)(c), but the Department will still have a statutory obligation to adopt a permanent rule establishing procedures for manual recounts....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1999 Fla. App. LEXIS 13722, 1999 WL 924400
...Grant, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee. BENTON, J. James J. Quigley, a prisoner within the meaning of section
944.02(5), Florida Statutes (1997), appeals the order denying a petition to initiate rulemaking he filed with the Department of Corrections (DOC) under section
120.54(7), Florida Statutes (1997)....
...ds the contents. 2. Such employees shall not accept any document for notarization until the inmate indicates that he is ready for it to be mailed or forwarded. The employee is not required to notarize the inmate's file copy of the document. Invoking section 120.54(7), Florida Statutes (1997), the petition requested that DOC repeal Florida Administrative Code Rule 33-3.005(9)(a)2....
...The statute provides that not "later than 30 calendar days following the date of filing a petition, the agency shall initiate rulemaking proceedings under this chapter, otherwise comply with the requested action, or deny the petition with a written statement of its reasons for the denial." § 120.54(7)(a), Fla....
...proposed replacement for the existing rule, to obtain judicial review of the kind available when a party who is not a prisoner challenges an existing rule under section
120.56, Florida Statutes (1997). *1031 Although permissible in a petition under section
120.54(7), Florida Statutes (1997), Mr....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...Pursuant to the authority vested in it by section
944.23, Florida Statutes, the Department has enacted a series of rules governing visitation within the state prisons. Chapter 33-5, Florida Administrative Code. Those rules, adopted in accordance with the rulemaking procedures of section
120.54, Florida Statutes, direct the secretary of the Department to authorize the superintendents of the various prisons in the state to adopt visitation policies within the individual prisons....
...with greater specificity than does chapter 33-5, and was intended to be a detailed guide for the seventy-nine or so superintendents in drafting and tailoring visitation regulations for each facility. However, it was not enacted as a rule pursuant to section 120.54, Florida Statutes....
...terests of the inmates. To some extent, the additional provisions of the directive are self-executing and do not grant unlimited discretion in the superintendents. Thus, in our view, the directive constitutes a rule and should have been subjected to section 120.54, Florida Statutes, rulemaking procedures....
...ty and consistency, it is the agency that must establish all Department policy through the rulemaking procedure. No one seriously questions subjecting the proposed agency policy to comment, debate and scrutiny pursuant to proper notice and the other section 120.54 requirements....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...r practice
requirements of an agency” is considered a “rule.” §§
120.52(16),
120.56(4)(a), Fla. Stat. Statements that are rules cannot be
enforced unless they are formally adopted in accordance with
requirements set forth in chapter 120. See §
120.54, Fla....
...1st DCA 1989)).
This fundamental premise of administrative procedure
harkens back to the early days of the Administrative Procedure
Act, when former Judge Robert P. Smith, Jr. of this Court
explained that rulemaking is required only for agency statements
intended “by their own effect” to make law:
[T]he Section 120.54 rulemaking procedures are imposed
only on policy statements of general applicability, i.e.,
those statements which are intended by their own effect
to create rights, or to require compliance, or otherwise to
have the direct and consistent effect of law.
McDonald v....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...Gen., Tallahassee, for appellant and cross-appellee. Richard A. Belz and Diana B. McPherson, Gainesville, for appellees and cross-appellants. ROBERT P. SMITH, Jr., Judge. The Department of Corrections appeals from DOAH hearing officer Tremor's order in Section 120.54(4) proceedings holding that the Department's proposed Rule 33-3.13, Fla....
...We agree with the hearing officer that the Department has statutory authority to promulgate rules on the subject in question, Sections
20.315,
944.09, Florida Statutes (1970); that the estimate of economic impact accompanying the proposed rule satisfies Section
120.54(2)(a); and that the Department complied with the notice requirements of Section
120.54....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1998 Fla. App. LEXIS 14400, 1998 WL 821768
...Ellis, Agency for Health Care Administration, Tallahassee, for respondent. PER CURIAM. The Florida Health Care Association petitions this court to review an emergency order promulgated by the Agency for Health Care Administration. We have jurisdiction. See §§ 120.54(4)(a)3....
...The agency's emergency rule 59A-ER-98-1 relates to the rating of nursing homes and makes it more difficult for such a facility to obtain a "superior" rating. The specific reasons for finding an immediate danger to the public health, safety, or welfare as set forth in the rule are: Pursuant to Section 120.54(4), F.S., the Agency for Health Care Administration finds that the current criteria for obtaining a nursing facility "superior" rating constitutes an immediate danger to current and potential residents of nursing homes....
...taff morale and attitudes toward care giving. We agree with petitioner that the agency has failed to set forth convincing reasons why emergency rulemaking was necessary to deal with "an immediate danger to the public health, safety, or welfare." See § 120.54(4)(a)....
...In the absence of a more convincing showing of a need to act on an emergency basis to avoid a risk to the public and/or why non-emergency rulemaking would not be adequate to deal with the problem targeted by the rule, we are constrained to agree with the petitioner that this emergency rule contravenes section 120.54(4), Florida Statutes....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 1309
...294,
34 So.2d 564 (Fla. 1948); State v. Tedder,
123 Fla. 188,
166 So. 590 (Fla. 1936); Ray v. Williams,
55 Fla. 723,
46 So. 158 (1908); Rashard v. Cappiali,
171 So.2d 581 (Fla. 3d DCA 1965). No such inherent authority *754 exists in administrative agencies. Section
120.54(14), Florida Statutes (1983) expressly and explicitly commands that "[N]o agency has inherent rulemaking authority; nor has any agency authority to establish penalties for violation of a rule unless the Legislature, when establishing a...
...ng officer to dismiss a proceeding and default a party for failure to comply with procedural orders of an agency or hearing officer. Appellees argue that that rule is a valid exercise of power authorized by construing together sections
120.53(1)(c),
120.54(10),
120.57(1) and
120.65(2) and (7). Those statutes combined contain no express grant of the authority of dismissal or default to overcome the explicit command of section
120.54(14)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 11 Educ. L. Rep. 1132, 1983 Fla. App. LEXIS 19383
...chool Board, wherein the involuntary transfers of the Petitioners was again addressed. Without discussion, the School Board effectuated the transfers of the Petitioners. 5. Contrary to established district practice and the requirements of §
120.53, §
120.54, § 230.17, Florida Statutes, the School Board failed to publish notice of the special meeting in the Gadsden County Times....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...Does it necessarily follow that all such statements which meet the APA definition of rule but were not formally adopted are invalid? For the reasons stated infra, I suggest it does not. In the past, when an attack was made on agency action as invalid due to the agency's failure to comply with §
120.54, our approach quite often was to classify and, if the classification fell within §
120.52(14)'s definition, to invalidate....
...concerning agency action, including those against whom the agency has instituted adjudicatory proceedings, those whose substantial interests are threatened by agency causes or by agency action which is proceeding arbitrarily or otherwise. Id. While
120.54 proceedings are helpful in fostering a dialogue between the agency and the public as to the wisdom of the proposed action, it is questionable whether the dialogue in such proceedings has the same intensity as that provided by §
120.57 to identifiable parties....
...Davis, supra note 2 at 286. [6] This standard was first intimated in Mitchell v. School Bd. of Leon Cty., supra note 3, where we stated that the agency's failure to file a proposed rule with DOAH at least 21 days before its intended action (then required by § 120.54(3), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1993 Fla. App. LEXIS 2382, 1993 WL 53137
...ter approval but the member of the couple who is the opposite sex of the inmate may not visit the inmate without the spouse. Appellee, who had several married female visitors on his visitors' list, filed a challenge to the proposed rule, pursuant to section 120.54, Florida Statutes....
...Appellee alleged that the proposed rule violated section
120.52(8)(a) and (b), which states that a proposed rule constitutes an invalid exercise of delegated legislative authority where "(a) the agency has failed to follow the applicable rulemaking procedures set forth in s.
120.54, or (b) the agency has exceeded the grant of rulemaking authority, citation to which is required by s.
120.54(7)." [1] The pertinent statutory authority cited by DOC includes section
944.09, Florida Statutes, and section
944.23, Florida Statutes....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2010 WL 2292928
...-licensed viatical settlement providers do not constitute unpromulgated rules in violation of Chapter 120. We affirm the ALJ's ruling that the challenged documents, policies, and procedures are not subject to the rulemaking requirements set forth in section 120.54(1), Florida Statutes....
...ion of Administrative Hearings, seeking a final order determining whether the documents, policies, and procedures used by OIR in the course of an examination of a viatical settlement provider's business constitute unpromulgated rules in violation of section 120.54(1)(a), Florida Statutes....
...If the effect of an agency statement is to create certain rights or adversely affect other rights, it is a rule. Dep't of Admin. v. Harvey,
356 So.2d 323, 325 (Fla. 1st DCA 1977). An agency statement that meets the Chapter 120 definition of a rule, but which has not been promulgated in accord with section
120.54 "constitutes an invalid exercise of delegated legislative authority and, therefore, is unenforceable." Dep't....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 5 Educ. L. Rep. 1325
...policy which requires that a refusal of suitable work, to be disqualifying, must be based upon a work offer made while the claimant is unemployed. The Commission has admittedly not promulgated rules on this matter under the rule making procedures of Section 120.54, Florida Statutes....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 246
...Consequently, we have ordered this appeal expedited. The authority for HRS to suspend appellant's license is found in sections
402.3055,
402.310, and
402.312. Authority to issue a summary order requiring emergency suspension of a license is contained in sections
120.60(8) and
120.54(9), Florida Statutes (1985)....
...es were actually prosecuted or that this incident was ever the subject of any type judicial determination. *495 Anderson contends that the emergency order should be vacated and set aside for failure to meet the requirements of sections
120.60(8) and
120.54(9), Florida Statutes (1985), because it fails to show specific facts and reasons for finding an immediate danger to the public health, safety, and welfare, and, further, that it contains no facts or reasons from which to conclude that the procedure used, i.e., suspension of the license, is fair under the circumstances....
...o establish that Anderson's husband is disqualified and his presence at the facility violates the statute. The power of HRS to issue an emergency order suspending appellant's license must be exercised in strict compliance with sections
120.60(8) and
120.54(9), Florida Statutes (1985)....
...See sections
402.3055 and
402.310, Florida Statutes (1985). Section
120.60(8) states that if the agency "finds that immediate serious danger to the public health, safety, or welfare" requires emergency suspension of a license, it "shall show compliance in its order with the requirements imposed by s.
120.54(9) on agencies making emergency rules." Section
120.54(9)(a) requires the agency to follow a procedure "which is fair under the circumstances and necessary to protect the public interest, provided that": 1....
...o not find these facts sufficient to show an immediate serious danger to public health. Absent additional facts in the order showing a likelihood of immediate harm to the children, we find the order insufficient to comply with sections
120.60(8) and
120.54(9). Third, we do not find that the circumstances recited in the order required the immediate closing of appellant's facility instead of some lesser and fairer alternative. Section
120.54(9)(a)2 requires that an agency take "only that action necessary to protect the public interest." Appellant offered to prevent access by her husband to children at the facility during the hours it was open, and nothing appears in the or...
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1991 WL 5004
...We note, however, this provision does not contain the procedural safeguards encompassed in section
120.60(8). This latter provision of Florida's Administrative Procedure Act (APA) authorizes emergency suspension, restriction, or limitation of a license and incorporates by reference section
120.54(9) relating to emergency rules. Section
120.54(9) requires that: (a) If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger by any procedure which is fair und...
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...of Offender Rehabilitation v. Jerry,
353 So.2d 1230 (Fla. 1st DCA), cert. denied,
359 So.2d 1215 (Fla. 1978), this court compared the more restrictive term "substantially affected," used in section
120.56, with the broader, more liberal term "affected persons," used in section
120.54, and concluded that, to have standing under section
120.56, the person challenging the validity of an adopted rule must show a direct injury in fact of "sufficient immediacy and reality" to the petitioner....
...THE DEPARTMENT'S STANDING Section
455.217, Florida Statutes (1987), cited in the final order as authority for the Department's standing, provides: The secretary of the department shall have standing to challenge any rule or proposed rule of a board pursuant to §§
120.54 and
120.56....
...s it "implements the Board's previous decision to accept the substantive information which it had been provided." 10 F.A.L.R. at 415. This finding is supported by competent, substantial evidence. The Board did not subject the application form to the section 120.54 rulemaking process....
...But it should be made clear that the type of information solicited by this application form, even if the subject rule were upheld in all respects, would nevertheless include "information not specifically required by statute or by an existing rule" and thus would have to be subjected to the rulemaking process under section 120.54....
...reated as presumptively valid, or merely voidable, and must be given legal effect until invalidated in a section
120.56 rule challenge proceeding. The rule may be invalidated before becoming effective only by filing a rule challenge proceeding under section
120.54(4), Florida Statutes (1987), or initiating a drawout proceeding authorized in section
120.54(17), Florida Statutes (1987)....
...We do not agree. The application form clearly meets the definition of a rule in section
120.52(16) and, as held in the hearing officer's order and in our opinion, is invalid because the agency failed to follow the proper rule promulgation procedure under section
120.54....
...final actions of the Board. As herein *890 in clarified, we adhere to our opinion and decision heretofore filed in this case. SMITH, C.J., and BARFIELD, J., concur. NOTES [1] We intimate no opinion on the standing of petitioners to participate in a section 120.54 rulemaking proceeding as an "affected person." The record does not indicate that petitioners attempted to participate in a section 120.54 rulemaking proceeding in respect to the challenged rule....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 9 Educ. L. Rep. 437, 1982 Fla. App. LEXIS 22263
...em from this appeal. The second issue is whether the board erred in denying the parents' petition for formal hearing. The parents in this case were involved in administrative rulemaking by the school board. Accordingly, their rights were codified by section 120.54(16), Florida Statutes (1981), [3] and chapters 28-3 and 28-5, Florida Administrative *556 Code (1981)....
...[2] We disagree that parents with children in attendance do not have the right to seek review in the District Court of Appeal of a school board's decision to close a school or change school boundaries. It is anathema to us to conclude that no avenue of judicial relief is available to them. [3] Section 120.54(16) provides: Rulemaking proceedings shall be governed solely by the provisions of this section unless a person timely asserts that his substantial interests will be affected in the proceeding and affirmatively demonstrates to the agen...
...For example, merely "affected persons" may present evidence and argument, and request a public hearing during the more informal proceedings for adoption of a proposed rule. But, it takes a "substantially affected person" to challenge a rule through a §
120.54(4) or
120.56 rule challenge proceeding, or to become a party or intervenor to such a proceeding....
...As the procedure increases in formality, so does the required showing of a personal stake in the action. (Footnotes omitted; emphasis original.) [5] Chapter 28-5.604(1), Florida Administrative Code (1981), provides: At any time prior to the conclusion of a public hearing conducted under the provisions of Section 120.54(3), any person may assert that his substantial interests will be affected in the proceedings, and shall affirmatively demonstrate that the rulemaking proceedings do not provide an adequate opportunity to protect his substantial interes...
...Petitioners/parents did not lack standing for a drawout; they failed to establish grounds. [8] Section
120.53(1)(d) provides that agencies "shall give notice of meetings, hearings, and workshops in the same manner as that prescribed for rulemaking in subsection
120.54(1)... ." Section
120.54(1)(a) provides that notice of intent by an educational unit to adopt a rule shall be made by publication, mail, and posting....
...or the closing of schools warrants cursory mention only. The economics of this school's continued operation was considered in a rulemaking framework. The rulemaking in this case did not require administrative tools in addition to sections
120.53 and
120.54, unlike the situation in Witgenstein v....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1999 WL 629877
...The notice of appeal was filed more than thirty days after the final order was entered, even though it was filed within thirty days of entry of an order on DOC's motion for reconsideration. The Uniform Rules of Procedure promulgated by the Administration Commission in accordance with section 120.54(5)(a), Florida Statutes (1997), do not authorize motions for reconsideration....
...1st DCA 1980), where we held that a notice of appeal was untimely, although filed within thirty days of entry of an order on the appellant's motion for reconsideration, because it had not been filed within thirty days of entry of the final order and no rule of practice authorized the filing of motions for reconsideration. Section 120.54(5)(a)1, Florida Statutes (Supp.1996), which directed the Administration Commission to adopt one or more sets of Uniform Rules of Procedure for filing with the Department of State by July 1, 1997, had as one purpose the reduction of the number of administrative rules. The 1996 revision to the Administrative Procedure Act, of which section 120.54(5)(a)1 was part, see Ch....
...James P. Rhea and Patrick L. "Booter" Imhof, An Overview of the 1996 Administrative Procedure Act, 48 Fla. L.Rev. 1, 10 (Jan.1996). "In order to reduce the number of rules, the Legislature required the use of uniform rules of procedure." Id., at 42. Section 120.54(5)(a)1, Florida Statutes (Supp.1996), provides: "Upon filing with the department, the uniform rules shall be the rules of procedure for each agency subject to this chapter unless the Administration Commission grants an exception to the...
...been granted by the Governor and Cabinet, sitting as the Administration Commission. Id. By July 1, 1998, if not before, the Uniform Rules of Procedure became PERC's new procedural rules, superseding its prior "non-uniform" rules. As contemplated by section 120.54(5)(a)1, Florida Statutes (Supp.1996), the Administration Commission had adopted Uniform Rules of Procedure, Chapters 28-101 through 28-110, Florida Administrative Code, on April 1, 1997....
...On November 17, 1997, PERC approved proposed rules repealing most of its prior procedural rules. See 23 Fla. Admin. W. 6519 et seq. (Nov. 26, 1997). On February 13, 1998, PERC gave notice that it was complying with the Uniform Rules of Procedure. PERC Order No. 98A-026. While section 120.54(5)(a)2, Florida Statutes (Supp.1996), authorizes agencies to file petitions with the Administration Commission seeking exceptions to the Uniform Rules of Procedure, PERC does not dispute the Saulters' representation that PERC has filed no such petition. "Agencies must comply with the uniform rules by July 1, 1998." § 120.54(5)(a)1, Fla....
...PERC denied the motion for reconsideration on February 15, 1999, and DOC filed its notice of appeal on February 23, 1999. By operation of law, the Uniform Rules of Procedure had replaced PERC's prior procedural rules, so that they were no longer in effect at any pertinent time. § 120.54(5)(a), Fla. Stat. (Supp.1996). *370 PERC's failure to initiate formal rule-making to remove Rule 38D-15.005 from the Florida Administrative Code does not negate the legislative repeal that section 120.54(5)(a) effected....
CopyCited 3 times | Published | Florida 5th District Court of Appeal
...at review shall be held in the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides. [1] Balino v. Department of Health and Rehabilitative Services,
362 So.2d 21 (Fla. 1st DCA 1978); §
120.54(3), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...special knowledge, experience and services to determine technical and intricate matters of fact, or a uniformity of ruling is essential to comply with the purposes of the statute being administered, we will require prior resort to the Commission via Section
120.54, or
120.56....
...In the context of appeal proceedings, such as in the present case, we observe also that Section
120.56(5) specifically provides that failure to proceed under Section
120.56 shall not constitute failure to exhaust administrative remedies. To the same effect, see Section
120.54(4)(d)....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2003 WL 21920888
...s detailed in these documents were "untrue and warranted reversal," combined with its attachment and incorporation of these documents to its petition for administrative hearing, constitute substantial compliance with the requirements of subparagraph
120.54(5)(b)4 of the Florida Statutes and Rule 28-106.201(2) of the Florida Administrative Code. See Accardi v. Dep't of Envtl. Protection,
824 So.2d 992, 996 (Fla. 4th DCA 2002). They do not. Section
120.54, Florida Statutes (2003), provides in pertinent part: (5) Uniform rules. (a)1....
...the proposed action. (Emphasis added). Relatedly, section
120.569, Florida Statutes (2003) provides: (c) Unless otherwise provided by law, a petition or request for hearing shall include those items required by the uniform rules adopted pursuant to s.
120.54(5)(b)4....
...Brookwood's counsel answers with a recalcitrant insistence that in previous years the unrefined denials such as the one he asserted below sufficed to secure hearings on agency actions. The simple answer to this is that the rules have changed. In 1998, the Florida Legislature amended section
120.54 to add subparagraph (5)(b)4. See ch. 98-200, § 3, at *840 1830-31, Laws of Fla. Section
120.569, was likewise amended at that time to reflect the mandatory nature of section
120.54....
...ltimate facts, to identify the facts that are in dispute, and to allege the facts that warrant, in the petitioner's opinion, reversal. [2] See also ch. 03-94, § 2, Laws of Fla. (enacted after the final order in the instant case and further amending section 120.54(5)(b) 4 to expressly "require the petition to include" a statement of disputed facts and the ultimate facts warranting reversal) (emphasis added)....
...5th DCA 2001)(where only item employee failed to include in hearing request was how he became aware of School Board's action, the deficiency would not be deemed dispositive, and employee's letter was sufficient to meet the minimum requirements listed in section 120.54(5)(b) 4 for a hearing request)....
...howing necessary to secure a hearing, rather than any effort to thwart, violate, or evade the law. Accordingly the order under review is reversed and the matter is remanded for Brookwood to file a petition for hearing in compliance with subparagraph 120.54(5)(b)4, Rule 28-106.201, and the statements made herein....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2004 WL 874932
...Requirement for Statutory Rulemaking Authority We must consider whether the repeal was unlawful. Under chapter 120, an agency engaging in rulemaking must identify both the statutory authority for the rulemaking and a statute or act to be implemented by the rulemaking. Specifically, section 120.54(7), Florida Statutes (2000), requires that: Each rule adopted shall be accompanied by a reference to the specific rulemaking authority pursuant to which the rule was adopted and a reference to the section or subsection of the Florida Statutes or the Laws of Florida being implemented, interpreted, or made specific....
CopyCited 2 times | Published | Supreme Court of Florida | 1996 WL 548949
...s placed on the record after an ex parte communication; the written decision of the administrative law judge presiding at the final hearing; and the official transcript of the final hearing. (E) In an appeal from a rule adoption pursuant to sections
120.54 (rule adoption) and
120.68(9), Florida Statutes, in which the sole issue presented by the petition is the constitutionality of a rule and there are no disputed issues of fact, the record shall consist only of those documents from the rulemakin...
...The agency's rulemaking record consists of all notices given for the proposed rule; any statement of estimated regulatory costs for the rule; a written summary of hearings on the proposed rule; the written comments and responses to written comments as required by sections 120.54 (rule adoption) and 120.541, Florida Statutes, (statement of estimated regulatory costs); all notices and findings made pursuant to section 120.54(4), Florida Statutes, (adoption of emergency rules); all materials filed by the agency with the Administrative Procedures Committee pursuant to section 120.54(3), Florida Statutes, (rule adoption procedure); all materials filed with the Department of State pursuant to section 120.54(3), Florida Statutes, (rule adoption procedure); and all written inquiries from standing committees of the legislature concerning the rule....
...Subdivision (c)(2)(C) addresses the record on appeal from declaratory statement requests pursuant to section
120.565, while subdivision (c)(2)(D) lists the provisions of section
120.574(2)(d), Florida Statutes. Subdivision (c)(2)(E) of the rule addresses proceedings governed by sections
120.54 and
120.68(9), Florida Statutes. The definition of the rulemaking record tracks language in section
120.54(8), Florida Statutes....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...o supply a "record foundation" for its policymaking. Florida Cities Water Co. v. Florida Public Service Comm'n,
384 So.2d 1280, 1281 (Fla. 1980); McDonald v. Dept. of Banking and Finance,
346 So.2d 569 (Fla. 1st DCA 1977). Nor is this an appeal from Section
120.54 rulemaking proceedings, in which the agency's duty is to supply a full and fair opportunity for affected persons to attack or comment on the proposed rule by debate and appropriate evidence, and our duty is to assure that the agency has done so....
...On that question the presumption of the Rule's validity gains added weight from its having laid upon the public record in Florida Administrative Code for several legislative sessions without disapproval or interference by either the legislature or its Administrative Procedures Committee, Sections
120.52(4),
120.545, Florida Statutes (1979)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 14 Fla. L. Weekly 2478, 1989 Fla. App. LEXIS 5924, 1989 WL 124571
...dual cases). *571 However, both rulemaking and the adjudication of individual cases fulfill administrative due process requirements of notice, hearing and judicial review. Here, the PSC followed neither path. There was no rulemaking as envisioned by Section
120.54, Florida Statutes, nor was there a proceeding as envisioned by Section
120.57, Florida Statutes....
..., and because its effect is to impose requirements on these companies previously unimposed by statute or pre-existing rule, we find that the hearing officer was correct in her classification of this provision as a rule subject to the requirements of Section 120.54, Florida Statutes....
...standards to broad principles to rules.'" Id. (quoting Davis, at 55). Applying the above considerations to the case at hand, it is obvious that the Commission's order is not impressed with any of the benchmarks of policy for which the provisions of Section 120.54, Florida Statutes (1987), relating to rulemaking, are required....
...e to determine whether or not it fell within section
120.52(14)'s [now renumbered as
120.52(16)] definition of a rule have now been largely discarded. There are, however, costs exacted upon an agency which avoids the rulemaking procedure provided by section
120.54, chief among those being that the agency may be required repeatedly to defend its nonrule policy decisions in each case....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...1D-17.0045(1) are invalid exercises of delegated legislative authority. The order also determined that Sherman College had standing to challenge the subject rule amendments because it proved that it is substantially affected by this agency action. §§
120.54(4) and
120.56(1), Fla.Stat....
...c), because it had only regional or institutional accreditation by USDOE and COPA but not professional or specialized accreditation by an agency recognized by USDOE and COPA. On March 11, 1993, Sherman College filed separate petitions pursuant to subsection
120.54(4) and subsection
120.56(1), Florida Statutes (1993), challenging the validity of the amendments to rules 21D-11.001(2)(c) and 21D-17.0045(1) on several grounds, including that they are invalid exercises of legislative authority and vi...
...es' impact on its enrollment. The hearing officer made the following conclusions of law: 19. At hearing, Sherman College proved its standing to challenge the rule amendments at issue. That is, it is "substantially *561 affected" pursuant to sections
120.54(4) and
120.56(1), F.S....
...gency rules. ( Fla. Medical Assn., supra, at 1115) We are further reminded by the court that in State Department of Health and Rehabilitative Services v. Alice P.,
367 So.2d 1045 (Fla. 1st DCA 1979) it recognized a physician had standing pursuant to section
120.54(4), F.S....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...spondents' rule-challenge petition pursuant to Section
120.56, Florida Statutes (1977). Respondents contend that the Department has issued a declaratory statement, Section
120.565, which constitutes an illicit rule not promulgated in accordance with Section
120.54....
...ending before the hearing officer, is that the Department, by issuing a declaratory statement as to the applicability of a statute, rule or order, in response to a petition for such a statement, uttered a statement of general applicability for which Section 120.54 rulemaking proceedings are essential....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1998 Fla. App. LEXIS 5874, 1998 WL 264482
...See §
90.302(1), Fla. Stat. (1995). [5] Indeed, such a narrow construction appears contrary to the recent legislative declaration that rulemaking is the preferred means of issuing agency statements, and that such procedure "is not a matter of agency discretion." §
120.54(1), Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1991 WL 40071
...The Authority is an agency of the State of Florida subject to the Florida Administrative Procedures Act. Chapter 120, Fla. Stat. (1989). The primary function of the Authority is to obtain, supply, and distribute the water supply for the Florida Keys. Pursuant to section 120.54, Florida Statutes (1989), the Authority has rulemaking powers....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...laws, Sections
627.411(1)(c) and
626.9541(1)(a)5.," Florida Statutes (1997), which forbid misleading titles, headings, and advertising. The same order determined that a different agency statement did constitute an unpromulgated rule in violation of section
120.54(1)(a), Florida Statutes (1997), a determination we do not disturb on the Department's cross-appeal....
...d to reverse. With limited exceptions, an award of costs and attorney's fees in such circumstances is mandatory. The final order under review granted in part Security Mutual's petition alleging, under section
120.56(4), Florida Statutes (1997), that section
120.54(1)(a), Florida Statutes (1997), had been violated....
...96-159, § 25, at 196, Laws of Fla., (and as further amended in 1997, Ch. 97-176, § 11, at 3333, Laws of Fla., to include exceptions not applicable here) provides: (4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
120.56(4). (a) Upon entry of a final order that all or part of an agency statement violates s.
120.54(1)(a), the administrative law judge shall award reasonable costs and reasonable attorney's fees to the petitioner, unless the agency demonstrates that the statement is required by the Federal Government to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 632
...ermine the invalidity of a proposed Department of Corrections rule with the Division of Administrative Hearings. Sharyn L. Smith, Director of the DOAH, dismissed the petition by an administrative order stating that the petition failed to comply with § 120.54(4), Florida Statutes....
...SHIVERS, WENTWORTH and NIMMONS, JJ., concur. NOTES [1] In its entirety, the order reads: ORDER This proceeding was initiated on the Petition of Anthony E. Cash, Douglas L. Adams, Joe L. Holland, Vernon Vaughn, Hector Leon, Jr., and James Fivecoat, pursuant to Section 120.54(4), Florida Statutes, and challenges the validity of Respondent's proposed Rule 33-3.02(6)(b), Florida Administrative Code. After reviewing the Petition, the undersigned finds that it does not comply with the requirements of Section 120.54(4), Florida Statutes, and it is therefore......
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1991 WL 93521
...and that, instead, each existing hospital had to be actually performing 350 procedures per year. In arriving at this determination, the hearing officer noted that the averaging method had been declared invalid because it was not adopted pursuant to section 120.54, Florida Statutes....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...An agency statement that is the equivalent of a rule must be adopted in the rulemaking process. See, e.g., Christo v. State Department of Banking and Fin.,
649 So.2d 318 (Fla. 1st DCA 1995); Florida League of Cities v. Administration Comm'n,
586 So.2d 397 (Fla. 1st DCA 1991). This requirement, carried forward in section
120.54(1), Florida Statutes (Supp.1996), prevents an administrative agency from relying on general policies that are not tested in the rulemaking process, but it does not apply to every kind of statement an agency may make....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...ERVIN, Judge. The hearing officer did not err in ordering that the disputed amendment to Fla. Admin. Code R. 10-5.11(1) was invalid because of the Department's failure to prepare an economic impact statement in its promulgation, per the requirement in Section
120.54(2)(a). We presaged this result in dicta in Department of Environmental Regulation v. Leon County,
344 So.2d 297, 299 (Fla. 1st DCA 1977): While Section
120.54 does not specifically relate to an alleged erroneous economic impact statement to validity or invalidity of a rule, it does require the promulgation of such a statement by the agency as one of the steps in the rule-making procedure. Thus, the failure to give such an economic impact statement would constitute an invalid exercise of delegated legislative authority. Later, in Laws of Florida, Ch. 78-425, the Legislature clarified its intent, amending Section
120.54(2) to add, in subsection (2)(c), that "[f]ailure to provide an adequate statement of economic impact is grounds for holding the rule invalid......
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...iciency of the economic impact statement (EIS). On August 2, 1993, the DCA and a group of intervenors filed a Motion for Partial Summary Final Order seeking to dismiss the challenge to the EIS on the ground that the petitioners lacked standing under section 120.54(2)(d), Florida Statutes, because they failed to request the preparation of an EIS or advise the DCA of any EIS-related concerns....
...d are so vague that they cannot be utilized by those to whom they apply. We agree that appellants' challenge to the EIS should not have been dismissed for lack of standing and reverse and remand, but otherwise affirm. Turning first to the EIS issue, section 120.54(2)(d), Florida Statutes (Supp.1992), provides, in pertinent part: No person shall have standing to challenge an agency rule, based upon an economic impact statement or lack thereof, unless that person requested preparation of an economic impact statement under subparagraph (2)(b)2....
...After contacting Mr. Barker and requesting a copy of the EIS, FECI and St. Joe received a copy of the EIS on October 8, 1992. They then included in their October 23, 1992 petitions the issues of whether the DCA had prepared an EIS in compliance with section 120.54(2)(6) that accurately and sufficiently analyzed the economic impact of the proposed changes on the public and the regulated community, and whether the DCA had considered the rules' impact on small businesses *360 and the method for reducing that impact....
...s and then pointed out problems with particular portions of the EIS. FECI also submitted a Memorandum to DOAH on November 6, 1992, in which it quoted the portion of the EIS it found deficient and noted that the EIS failed to meet the requirements of section 120.54(2)(b). We find that these actions were sufficient to fulfill the standing requirements of section 120.54(2)(d). Appellants' request for a copy of the existing EIS constituted a request for the preparation of an EIS under section 120.54(2)(b)2., and the EIS-related information contained within their petitions and memoranda was sufficient to put the DCA on notice of their specific concerns regarding the economic impact of the rule....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2005 Fla. App. LEXIS 803
...4 Under the Administrative Procedure Act, each agency rule shall be accompanied by “a reference to the specific rulemaking authority pursuant to which the rule is adopted[ ] and a reference to the section or subsection of the Florida Statutes or the Laws of Florida being implemented, interpreted, or made specific.” § 120.54(3)(a)(l.), Florida Statutes (2003); see also Osterback v....
...hority for the rulemaking and a statute or act to be implemented by the rulemaking.”); Dep’t of Health & Rehab. Servs. v. Fla. Ass’n of Academic Non- *1172 pub. Sch.,
510 So.2d 1028, 1030 (Fla. 1st DCA 1987) (“In further contravention of §
120.54, the legal authority cited by the proposed rule provides neither specific nor implied rulemaking authority to HRS with regard to the rule in question.”)....
...Section
120.52(8), Florida Statutes (2003), lists the circumstances under which a proposed or existing rule is invalid, and specifies that the rule is invalid if any one of the following applies: (a).... (b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s.
120.54(3)(a)l.; (c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s.
120.54(3)(a)l....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2004 WL 57222
...Finally, on October 12, 2001, the attorneys filed the action that became the underlying case supporting the ultimate award of attorney's fees. This action was a petition for determination of invalidity of a non-rule policy. Ultimately, the ALJ determined that AHCA's actions had violated section 120.54(1)(a), Florida Statutes (2000), providing generally that any agency statement defined as a rule must be adopted by the APA's rulemaking procedure as soon as feasible and practicable....
...o whether these costs were incurred in the non-rule policy challenge. Our analysis begins with the statute that allows fees in this case. Section
120.595(4)(a) provides, "[U]pon entry of a final order that all or part of an agency statement violates s.
120.54(1)(a), the administrative law judge shall award reasonable costs and attorney's fees to the petitioner...." Because the issue on appeal involves application of this statutory language to undisputed facts, we review the ALJ's order under the de novo standard....
...In fact, the statutory subsection in question governs "CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
120.56(4)." §
120.595(4), Fla. Stat. Section
120.56(4)(a), of course, provides, "Any person substantially affected by an agency [non-rule] statement may seek an administrative determination that the statement violates s.
120.54(1)(a)." If such a petition succeeds, the agency in question "shall immediately discontinue all reliance upon the statement ......
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1982 Fla. App. LEXIS 19125
...See Rule 23-19.01(5), Florida Administrative Code. The validity of this rule has not been challenged in these proceedings, and cannot appropriately be initially attacked in this court since adequate administrative remedies for that purpose are available. Section
120.54(5),
120.56, Florida Statutes (1979); Comer v....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1983 Fla. App. LEXIS 25342
...We affirm the action of the FLWAC in allowing Debra, Inc. to withdraw its petition and hold that it properly declined to issue an order denying Debra, Inc.'s petition, as the withdrawal of the petition divested the agency of further jurisdiction to proceed. *870 Section 120.54(5), Fla....
...rulemaking. The desired rule may have significance to the public or the agency regardless of the personal desires of the petitioner. More importantly, the agency has the jurisdiction to proceed without the petition, since it has the authority under § 120.54 to begin rulemaking on its own initiative....
...on with the FLWAC and only the filing of a qualifying petition gives the agency jurisdiction to proceed. It is well-established that an agency has no jurisdiction to proceed beyond that granted it by statute; it has no inherent rulemaking authority. § 120.54(14), Fla....
...Section
190.005(1), Florida Statutes (1981) provides: "The exclusive and uniform method for the establishment of a CDD ... shall be pursuant to rule adopted under Chapter 120." (emphasis supplied). It is true that the statute does not specify which part of Chapter 120 shall govern, the *871 informal procedures set forth in §
120.54 or the more formal procedures of §
120.57. However, §
120.54(16) states that "[r]ulemaking proceedings shall be governed solely by the provisions of this section... ." (emphasis supplied). Appellant argues that subsection (16) goes on to provide a procedure by which a party can "draw out" a §
120.54 proceeding to the more formal §
120.57 proceeding if the party "timely asserts that his substantial interests will be affected in the proceeding and affirmatively demonstrates to the agency that the proceeding does not provide adequate opp...
...in this case. In fact, appellant filed a "motion for involuntary dismissal" below at the midpoint of the proceedings, the basis of which was Debra, Inc.'s alleged failure to file an adequate economic impact statement pursuant to the requirements of § 120.54(2)(a)....
..., not a proposed recommended order, pursuant to §
120.57(1)(b)(4), but a proposed "Report of Hearing Officer." Therefore, it does not appear that even appellant viewed the proceedings as having been "drawn out" to a §
120.57 proceeding pursuant to §
120.54(16)....
...However, the order of the hearing officer granting the motion to intervene reveals that appellant's intervention was allowed pursuant to §
190.005(1)(b) (all affected units of local government shall be given an opportunity to appear). In conclusion, because §
120.54 governs the hearing prescribed in §
190.005(1)(b), appellant's argument that the FLWAC erred in failing to comply with § 120.59 is inapposite, since that statute is applicable only to proceedings held pursuant to §
120.57....
CopyCited 2 times | Published | Florida 5th District Court of Appeal
...tion of article II, section 3, Florida Constitution. Rule 25-5.31(5)(A), Florida Administrative Code, [1] requires thirty days notice to the Commission before the effective expiration or cancellation of an insurance policy issued to a motor carrier. Section 120.54(7), Florida Statutes (1979), requires that each administrative rule refer "to the specific rule-making authority pursuant to which the rule was adopted ......
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1997 WL 762107
...The Department sought certiorari review in the circuit court, claiming the statements of the officer could be used against him in an administrative disciplinary proceeding. The District Court of Appeal held that PERC properly applied the model rules (28-5.304) under the provisions of section 120.54(1), Florida Statutes, in finding the statements privileged....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1993 WL 504490
...dsey's entitlements. The agency's arguments for denying Lindsey in-state status are unsupported by its rule authority. The agency is free to amend its rule [5] to embrace these newly announced requirements, but it must do so with appropriate notice. § 120.54, Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1991 WL 46822
...of Boone, Boone, Klingbeil, Boone & Roberts, Venice, for appellee, Florida Hosp. ALLEN, Judge. The Department of Health and Rehabilitative Services appeals from an order wherein a hearing officer of the Division of Administrative Hearings determined, following a Section 120.54(4), Florida Statutes, validity hearing, that a proposed rule was invalid because changes made in the proposed rule failed to comply with the provisions of Section 120.54(13)(b), Florida Statutes. The appellant argues that the appellees' petitions for a 120.54(4) hearing, filed within 21 days following the appellant's publication of notice of the change in the proposed rule, but more than 21 days following the original notice of the proposed rule, were untimely. The appellant also argues that the hearing officer erred in determining that the changes in the proposed rule failed to comply with the provisions of Section 120.54(13)(b). We hold that the appellees' petitions were timely, and that the hearing officer's determination that the changes did not comply with Section 120.54(13)(b) was supported by competent substantial evidence. In accordance with the requirements of Section 120.54(1), [1] on April 22, 1988, the *353 appellant caused notice to be published in the Florida Administrative Weekly of proposed Rule 10-5.011(1)(e)....
...It contained no language which would cause existing facilities providing cardiac catheterization services to be concerned that they might be disadvantaged in future certificate of need applications seeking expansion of their programs. Within 21 days following publication of the Section 120.54(1) notice, Martin Memorial Hospital and Mease Health Care Center filed petitions for validity hearings under Section 120.54(4)....
...placed by a newly expressed policy of "foster[ing] competition among providers." Within 21 days following the notice of the change in the proposed rule, the appellees, existing adult cardiac catheterization service providers, petitioned, pursuant to Section 120.54(4), for an administrative determination of invalidity of the proposed rule as changed. Appellees contended that the changes were an invalid exercise of delegated legislative authority, because they were in excess of the authority given to agencies by Section 120.54(13)(b), Florida Statutes, to change proposed rules....
...It was the appellees' contention that none of the statutorily enumerated bases for change had been present when appellant decided to change the proposed rule, and that, in order to lawfully adopt the proposed rule as changed, the appellant was obligated to begin a new rulemaking process. Relying upon Section 120.54(4)(b), Florida Statutes, appellant contended that the appellees' petitions were untimely, because they had not been filed within 21 days following the first notice of proposed rulemaking. The hearing officer found, however, that the appellant's changes to the proposed rule had exceeded the authority given by Section 120.54(13)(b), and thus could not be made unless substantially affected *354 persons were given a point of entry to challenge the proposed rule as changed. Since the appellees had been deprived of a point of entry, but had filed their petitions within 21 days following their first notice of the improper changes, the hearing officer found their petitions to be timely under Section 120.54(4)....
...8, was an invalid exercise of delegated legislative authority. The appellant first contends that persons situated as are appellees are without any remedy, other than a post-adoption proceeding under Section
120.56, Florida Statutes. It argues that a Section
120.54(4) petition is timely only when initiated within 21 days following the initial notice of proposed rulemaking, and, because the appellees' petitions were filed more than 21 days after the April 22, 1988 publication, their petitions were untimely. The appellees agree that a petition for a
120.54(4) hearing must be filed within 21 days following the notice of rulemaking, but they argue that, where an agency wishes to change a proposed rule in a manner not permitted by
120.54(13), the agency must reinitiate the rulemaking process by publishing a new notice under Section
120.54(1). Their argument continues that, because a new notice, and consequently, a new point of entry for a
120.54(4) hearing is required under such circumstances, an affected person should not be denied the point of entry to which he is lawfully entitled, simply because the agency fails, improperly, to reinitiate the rulemaking process. The appellees contend that this result can be avoided only by allowing an affected person a point of entry to initiate proceedings under Section
120.54(4) following a rule change. The language of Section
120.54 clearly evinces a legislative intent that agency rules are to be adopted only after the public has been notified of the content of proposed rules and reasonable opportunity for public comment has been given....
...ior to their adoption. See Dore, Access to Florida Administrative Proceedings, 13 Fla.St.U.L.Rev. 965, 1010-1018 (1986). Obviously, both of these critical legislative objectives are defeated where an agency waits until after the public hearing under Section 120.54(3)(a), and after the 21-day period for initiating proceedings under Section 120.54(4), to make material modifications which are predicated upon neither public hearings nor the record of the proceedings. Were we to hold that no point of entry exists under the circumstances presented here, the holding would doubtless be understood as an indication that an agency that wishes to adopt its rules without public input under Section 120.54(3) and without risk of Section 120.54(4) proceedings can do so. Such an agency need only publish notice of an innocuous proposed rule, wait 21 days so that the time for demanding a public hearing under 120.54(3) or petitioning for a determination of invalidity under 120.54(4) has passed, and then simply change the rule however it wishes. The fact that such changes might be in excess of the limitations of Section 120.54(13)(b), and might bear no resemblance to the original proposed rule, would not matter, at least so far as the public right to be heard prior to rule adoption. In our view, such a holding would not comport with the legislative intent. Rather, it would effectively defeat the legislative purposes undergirding Section 120.54....
...Conversely, were we to hold that a point of entry exists under facts such as those presented here, the legislative objective public participation in rulemaking would be protected. Since changes in proposed rules which exceed the authority granted by Section
120.54(13) necessitate the reinitiation of the rulemaking process, the publication of a new Section
120.54(1) notice, and the granting of a new Section
120.54(4) point of entry, a holding recognizing a *355 point of entry for affected persons following such changes would give affected persons nothing more than the point of entry to which they are lawfully entitled. We recognize that the granting of a point of entry following changes in a proposed rule will authorize some validity challenges which ultimately result in a determination that the changes are in conformance with the provisions of Section
120.54(13)(b), but we do not believe that concern over such potential inconveniences should be allowed to defeat the legislative objectives. The appellant argues that appellees have an available remedy under Section
120.56, Florida Statutes, the post-adoption validity challenge statute. This is correct, but the Section
120.56 remedy is not as complete as the remedy under
120.54(4). Department of Envtl. Regulation v. Leon County,
344 So.2d 297 (Fla. 1st DCA 1977) (constitutional challenge to rule permitted under
120.54), Department of Admin., Div....
...Further, and more significantly, the
120.56 remedy is not the remedy envisioned by the legislature for diligent, substantially affected persons who wish to have their claims determined before rule adoption, not after. Accordingly, we hold that a substantially affected person is entitled to initiate a Section
120.54(4) validity challenge within 21 days following notice of a change in a proposed rule....
...legislative authority to change a proposed rule. If the petitioner prevails in his challenge, the agency must either withdraw the change or reinitiate the rulemaking process. Because the appellees were substantially affected persons who filed their Section 120.54(4) petitions within 21 days following notice of the changes, and because the basis for their challenge was alleged noncompliance by the appellant with Section 120.54(13)(b), we hold that the appellees' petitions were timely. Finally, we address the appellant's argument that the hearing officer erred in finding that the changes to the proposed rule were in excess of delegated legislative authority to change proposed rules, as set forth in Section 120.54(13)(b)....
...de as a result of off-the-record, private negotiations with Martin Memorial Hospital and Mease Health Care Center. Therefore, the hearing officer's conclusion that the changes were in excess of the legislative authority delegated to the appellant by Section 120.54(13)(b) is supported by the record....
...MINER, Judge, dissenting. The majority here have concluded that competent substantial evidence supports the hearing officer's finding that HRS's July amendments to the then proposed rule in question were without the scope of and thus violated Sec. 120.54(13)(b), Fla....
...With this conclusion, I am in agreement and to that extent concur in Judge Allen's opinion. However, I regard this point as secondary in importance to what I view as the pivotal issue in this appeal. Simply stated, that issue is whether HRS's violation of the rulemaking procedures contained in Sec. 120.54(13)(b) can be addressed in a challenge filed under Sec. 120.54(4) after the rule in question has become effective....
...120.56 is the only appropriate section under which to challenge a rule that has already become effective, I respectfully dissent from the majority's contrary conclusion. There is a fundamental distinction between a challenge to a proposed rule under Sec.
120.54(4) and a challenge to an effective rule under Sec.
120.56. Appellees seek *356 to blur this distinction by arguing that a Sec.
120.54(4) challenge is appropriate because they were improperly denied an opportunity to challenge the rule prior to its becoming effective. I do not find this argument persuasive because I do not believe appellees are entitled to the vehicle of Sec.
120.54(4) simply because HRS failed to follow proper rulemaking procedures....
...Additionally, appellee, NME Hospitals, Inc.'s pleading Sec.
120.56 "in the alternative" in its petition was in my view, insufficient to prevent reversal because it seems quite clear in reading the order appealed from that the proceedings which resulted in the order were based upon a Sec.
120.54 challenge. In sum, I hold to the view that the hearing officer lacked jurisdiction to hear appellees' Sec.
120.54 challenge and would reverse without reaching the second issue on appeal although I agree that HRS failed to follow proper rulemaking procedures. NOTES [1] Section
120.54(1), Florida Statutes (1989), provides as follows: (1) Prior to the adoption, amendment, or repeal of any rule not described in subsection (9), an agency shall give notice of its intended action, setting forth a short and plain explanat...
...only one county or a part thereof need not be published in the Florida Administrative Weekly or transmitted to the committee. The proposed rule shall be available for inspection and copying by the public at the time of the publication of notice. [2] Section 120.54(4), Florida Statutes (1989), provides, in pertinent part: (4)(a) Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1998 WL 558983
...license procedure for technicians. Following publication of the Board's proposed rules, appellee Florida Coalition of Professional Laboratory Organizations, Inc. (Coalition), and eleven of its member organizations filed a rule challenge pursuant to section 120.54(4), Florida Statutes (1995), based on their belief that the proposed rules would weaken the standards for licensing....
...ted legislative authority: (a) The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter; (b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.; (c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.; (d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; (e) The rule is arbitrary or capricious; (f) The rule is not supported by competent substantial evidenc...
...reliminary to a notice of formal rulemaking constitutes a material failure to follow rulemaking procedures, thereby requiring invalidation of a proposed or adopted rule. The only compulsory notice procedure in the 1995 rulemaking statute is found in section 120.54(1), Florida Statutes, which states that the "agency shall give notice of its intended action" before rule adoption, amendment or repeal....
...Published notification of the *873 proposed rules was given on August 23, 1996. Although an "agency may provide notice of the development of proposed rules by publication of a notice of rule development," by the very terms of the statute, this type of notice is obviously discretionary. § 120.54(1)(c), Fla....
...e proposed rules and the subsequently filed September 13, 1996, petition to challenge, the Board had followed the only mandatory notice requirement, and it was under no legal obligation to provide notice of intended rule development. It is true that section 120.54(2)(a) was amended October 1, 1996, mandating agencies to publish notice of rule development....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 10104, 1997 WL 536031
...Askew,
293 So.2d 395 (Fla. 1st DCA 1974) (affirming denial of a permit to excavate canals in land bordering Crystal River so as to create water front lots). Finally, Lost Tree argues that the economic impact statement prepared by the IITF pursuant to section
120.54(2), Florida Statutes (1991), failed to consider the economic consequences to the owners of islands affected by the proposed rules....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1993 WL 366884
..., or if the rule enlarges, modifies, or contravenes the specific provisions of law implemented, such infractions are among those requiring a conclusion that the proposed rule is an invalid exercise of delegated legislative authority. s.
120.52, F.S. Section
120.54, Florida Statutes, provides that no agency has inherent rulemaking authority....
CopyCited 1 times | Published | Supreme Court of Florida
; all notices and findings made pursuant to section
120.54(4), Florida Statutes (adoption of emergency
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 16268, 2011 WL 4905747
...) (providing that the uniform rules of procedure apply to bid protests). As part of the uniform rules of procedure, this rule was adopted in an effort to establish procedures that comply with the requirements of the Administrative Procedure Act. See § 120.54(5)(a), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1999 WL 821070
...Consolidated-Tomoka Land Co.,
717 So.2d 72 (Fla. 1st DCA 1998). The question in this case is not whether the Department encroached on legislative power by adopting a rule without authority, but whether it has employed a policy that should have been adopted as a rule. Section
120.54(1)(a), Florida Statutes provides that an "agency statement defined as a rule ......
...o is substantially affected by an agency statement not adopted as a rule, may file a petition under section
120.56(4), Florida Statutes for an administrative determination that the statement is invalid as a violation of the rulemaking requirement of section
120.54(1)(a)....
...rule. It does not follow, however, that the definition of a rule should be applied so expansively that it brings all agency functions within the direct supervision of the legislature. When a dispute arises over the mandatory rulemaking provisions of section 120.54(1)(a), the court must protect the legislative power to regulate rulemaking, but the court must also ensure that the definition of a rule is not applied so broadly that it includes executive branch functions within its scope....
...personnel for 23 years, there has been no instance in which any employee has ever been permitted to prepare federal income tax returns "for hire" during off-duty time. 14. As stipulated by the parties, Respondent has not adopted, in compliance with Section 120.54, Florida Statutes, the policy of refusing to allow employees to prepare federal tax returns for hire in secondary employment....
...agency which issued them. Indeed, such a narrow construction appears contrary to the recent legislative declaration that rulemaking is the preferred means of issuing agency statements, and that such procedure `is not a matter of agency discretion.' § 120.54(1), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...11.001(17) and 61D-11.002(5) was an invalid exercise of delegated legislative
authority. We agree with the ALJ that the repeal had the effect of a rule. The
Division has failed to challenge on appeal the ALJ’s conclusion that the rule was
invalid for failure to comply with section 120.54(1), Florida Statues, which
governs the preparation and consideration of statements of estimated regulatory
costs....
...on of the agency
since it adopted the designated player rules.” 2
The ALJ found this rule was invalid because the Division failed to
materially follow rulemaking procedures by failing to file a SERC in response to
the LCRA as required by section 120.541, Florida Statutes....
...The Proposed Rule Was Invalid
We also find the ALJ correctly concluded that the repeal was an invalid
exercise of delegated legislative authority because the Division failed to follow
rulemaking procedures by failing to prepare a SERC as required by section
120.541, Florida Statutes, which is a factual finding not challenged by the
Division....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...order, Rice v. Dept. of Health and Rehab. Serv.,
386 So.2d 844 (Fla. 1st DCA 1980), in part granting and in part denying FILS's petition for agency rulemaking on various subjects and "to provide the minimum public information required by s.
120.53." Section
120.54(5), Florida Statutes (1979). The Commission's voluntary accession to several FILS requests leaves for our consideration only the limited issues of (1) whether FILS had standing to petition for Section
120.54(5) remedies; if so, (2) whether the Commission was bound *249 to grant the petition for compliance with Section
120.53, requiring rules of organization, practice, and procedure, rules for the scheduling of hearings and prescribing a pu...
...hether the Commission is bound to adopt a rule directing that a Commissioner or the Commission rather than its hearing examiner panels conduct the prison interviews which the Commission accepts as evidence in parole rescission matters. Petitions for Section 120.54(5) relief may be initiated by "any person regulated by an agency or having a substantial interest in an agency rule......
...." That rather liberal test of standing-in contrast to somewhat more restrictive standards written elsewhere in the APA, see Dept. of Offender Rehab. v. Jerry,
353 So.2d 1230 (Fla. 1st DCA 1978), cert. den.,
359 So.2d 1215 (Fla. 1978)-includes all prisoners, for they are not barred from Section
120.54(5) remedies by the restrictions stated in Section
120.52(10)....
...ission provides indigent inmates representation and other legal services in parole matters, and which therefore has a "substantial interest" in rules and information of the kind sought. Having standing to petition for the agency action authorized by Section
120.54(5), and being aggrieved by the Commission's refusal in part to grant the relief petitioned for, FILS is "a party who is adversely affected by final agency action" and is entitled to a Section
120.68 appeal....
...As an agency subject to the Administrative Procedure Act, Turner v. Wainwright,
379 So.2d 148 (Fla. 1st DCA 1980), aff'd,
389 So.2d 1181 (Fla. 1980), the Commission is bound to adopt the practice and procedure rules which Section
120.53 states "each agency shall" adopt, and the Commission must, in the words of Section
120.54(5), "provide the minimum public information required by s....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...As to CTA's second point, the failure of PERC to adopt specific rules of procedure governing the investigation of and imposition of sanctions for strikes is not fatal to the proceeding. PERC is an agency under the Administrative Procedure Act, Chapter 120, Florida Statutes. Section 120.54(9) provides in pertinent part as follows: "The Administration Commission shall promulgate one or more sets of model rules of procedure which shall be reviewed by the committee and filed with the Department of State....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 7531, 2009 WL 1492618
...Maher of Shutts & Bowen, LLP, Miami; Michael P. Gennett of Akerman Senterfitt, Miami, for Appellee. PER CURIAM. We affirm in all respects the finding of the administrative law judge that the challenged agency statement constitutes a rule which has not been adopted pursuant to section 120.54, Florida Statutes....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 1325
...Publix maintained that in the EIS the commission failed to adequately assess "additional expenses" that it would incur "in processing petitions for relief," and failed to consider the impact of the rule change on employers. As to the first contention, the hearing officer observed that section 120.54(2)(a)1....
CopyCited 1 times | Published | District Court, M.D. Florida | 1982 U.S. Dist. LEXIS 12310
...That they are aimed at the activity of marriage rather than at the class of persons disqualified is illustrated by the Department of Corrections memorandum setting forth the facts and circumstances justifying the rule, said memorandum being required by Fla.Stat. § 120.54(1) (1980)....
CopyCited 1 times | Published | District Court, M.D. Florida
...That they are aimed at the activity of marriage rather than at the class of persons disqualified is illustrated by the Department of Corrections memorandum setting forth the facts and circumstances justifying the rule, said memorandum being required by Fla.Stat. § 120.54(1) (1980)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2001 WL 233611
...In case number 1D99-2651, we AFFIRM the determination in the Division of Administrative Hearing's final order that the District's memorandum dated November 20, 1989, is an unpromulgated rule, but we REVERSE the order's determinations that the District did not meet the "good faith" requirement of section 120.54(1)(a)1.c., Florida Statutes, and that Florida Administrative Code Rule 40C-4.051(11)(c) is an invalid exercise of delegated legislative authority....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...The scoring criterion is a rule within the meaning of the APA, F.S. §
120.52(14). 4. The scoring criterion by which mastery of the basic skills and satisfactory *662 performance in functional literacy are determined is invalid for its failure to have been promulgated in accordance with the APA, specifically F.S. §
120.54." The order found and determined that Rule 6A-1.941, as promulgated by the State Board of Education, was a valid rule within the contemplation of Florida Statutes, Chapter 120, the Administrative Procedure Act....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...Since we agree with the two appellants' common contention that the governing rule and practice of the Unemployment Appeals Commission are unauthorizedly in conflict with the statutory requirements on the issue, we order in Case no. 81-1493, that, pursuant to Sec. 120.54(5), Fla....
...with which their hearings are to be concerned. Case No. 81-1493 Case no. 81-1493 is an appeal by Juan Alfonso, an unsuccessful compensation claimant who had raised the issue in his own case before the referee and commission, [1] from the denial of a Section 120.54(5) [2] petition to require the adoption of a notice rule consistent with Sec....
...at Sec.
120.57(1)(b)2 was not mandatory. In the appeal from that order, the department's brief argued, inter alia, that the order should be affirmed because the Sec.
120.56 petition was an inappropriate remedy. (Its accompanying suggestion that Sec.
120.54(5) was the correct device was at once accepted by the filing of the present petition under that very subsection)....
...Metropolitan Dade County,
396 So.2d 756, 759, n. 3 (Fla. 3d DCA 1981) (per curiam affirmance of no precedential significance). Indeed, and ironically enough, by contending with apparent success in the first district that Alfonso could not succeed under Sec.
120.56, but only via the Sec.
120.54(5) proceeding it thereby induced, the appellees are the ones estopped from now contrarily asserting that the prior decision was not based on that ground....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...Stinson of Moyle, Flanigan, Katz, FitzGerald & Sheehan, P.A., Tallahassee, for appellant. Richard A. Patterson, Gen. Counsel, Tallahassee, for appellee. MILLS, Judge. Bayonet Point Hospital, Inc. appeals from the denial of its petition to amend a rule, filed pursuant to Section 120.54(5), Florida Statutes (1984 Supp.)....
...It concluded with the statement that "if HRS intends to deny the request, the hospital requests assignment to a hearing officer for formal proceedings pursuant to Section
120.57(1) regarding its request." On 28 June 1985, the Department entered its final order denying the petition. As required by Section
120.54(5), it provided a written statement of its reasons for the denial, namely that "the current rule provides rational, equitable and effective criteria against which applications for certificates of need for the establishment of cardiac c...
...on the request for a Section
120.57(1) hearing. Bayonet Point argues first that the Department erred in failing to set forth in its final order findings of fact and conclusions of law pursuant to Section 120.59, or to adequately explain its denial. Section
120.54(17), Florida Statutes (1984 Supp.), provides that "[r]ulemaking proceedings shall be governed solely by the provisions of this section unless a person timely asserts that his substantial interests will be affected in the proceeding and...
...ly demonstrates to the agency that the proceeding does not provide adequate opportunity to protect those interests" (emphasis supplied). Because no such showing was made herein, the agency, in denying the petition, had only to follow the dictates of Section 120.54, subsection (5) of which requires a "written statement of reasons" for a denial, not findings of fact and conclusions of law....
...In this case, the agency stated that the current rule was "rational, adequate and effective" in evaluating CON applications and that, because no legislative mandate required the implementation of the proposed amendments, the content of the rule was within its discretion. We find these reasons sufficient to satisfy Section 120.54(5)....
...Here, the agency exercised its discretion not to amend the rule as requested and we must affirm. The hospital further alleges as error the Department's denial of its request for a hearing pursuant to Section
120.57(1). Because the hospital failed to make the affirmative demonstration required by Section
120.54(17), its petition was governed solely by Section
120.54, which does not require a hearing, formal or otherwise, on petitions for rulemaking....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2014 WL 2751035, 2014 Fla. App. LEXIS 9190
...ly required by statute or by an existing rule.” §
120.52(16), Fla. Stat. (2012). “Each agency statement defined as a rule by s.
120.52 shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable.” §
120.54(l)(a)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2007 WL 2174850
...We believe that our holdings in Cleveland Clinic and Brookwood-Walton are consistent with the legislature's limitation on agency flexibility and discretion and enhancement of agency accountability and regulatory certainty underlying the 1996 amendments to chapter 120. § 120.54(1)(a), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 1658
...ract award process to continue without delay to avoid an immediate danger to the public health, safety or welfare. Such an order, entered pursuant to Section
120.53(5)(c) is analogous to the statement required in promulgating an emergency rule under Section
120.54(9)(a)(3), Florida Statutes, and an immediate final order under Section 120.59(3), Florida Statutes....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...The Public Service Commission ("PSC") appeals an order of the Division of Administrative Hearings determining that the PSC's notice of proposed agency action constituted a rule and therefore an invalid exercise of delegated authority due to failure to comply with the rulemaking requirements of Section 120.54, Florida Statutes....
...g all toll settlement agreements and directing modified agreements to be submitted for review within 30 days. The telephone companies (appellees) challenged the validity of the proposed agency action, contending it was actually a proposed rule under Section 120.54 and should be the subject of rulemaking procedures under that section. The PSC moved to dismiss the petitions challenging the notice, alleging the Division of Administrative Hearings lacked jurisdiction under Chapter 120; that the petitions stated no claim for which relief could be granted under Section 120.54; the notice was not a proposed rule, but was in the nature of a show cause order designed to focus disputed issues; and that the notice was not final agency action and would not become final until a hearing was held on the question whe...
...In a final order dated July 20, 1982, hearing officer Williams determined that the PSC's notice of proposed agency action constituted a rule and was an invalid exercise of delegated legislative authority for failure to comply with the rulemaking requirements of Section 120.54, Florida Statutes....
...icant difference between rules and proposed rules in the present context, and that since the notice has the effect of prescribing law or policy and is of general applicability, it is in effect a rule and must be subject to rulemaking requirements of Section 120.54....
...Remedies are described for challenging final agency action which has the effect of a rule. The McDonald opinion also states, however, that "[t]hat APA does not chill the open development of policy by forbidding all utterance of it except within the strict rulemaking process of Section 120.54." The requirement of rulemaking is "imposed only on policy statements of general applicability, i.e., those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law" (emphasis in original)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1991 WL 7933
...cific provisions of the law implemented. The hearing officer, however, held that the rules were an invalid exercise of delegated legislative authority in that they were not adopted in accordance with the applicable rulemaking procedures set forth in section 120.54, Florida Statutes, (a decision not appealed by the Commission or the Department)....
...roposed rules was published in the Florida Administrative Weekly. No individual notice was given to the property owners. The hearing officer found that the notice published in the Florida Administrative Weekly failed to comply with the provisions of section 120.54, Florida Statutes, in several respects and was insufficient to provide notice of the agency's intended action....
...She further found that the estimate of revised economic impact on affected persons was insufficient, and did not comply with the required detailed economic impact statement. She, therefore, found that the agency had materially failed to follow the applicable rulemaking procedures set forth in section 120.54 and that the rules were an invalid exercise of delegated legislative authority. She also found, as previously noted, that the commission had the legal authority to rezone the property in question by rule if it complied with the provisions of section 120.54. Allen appeals from this latter determination. In light of the hearing officer's finding that the rule in the instant case was not adopted in accordance with section 120.54, Florida Statutes, and was, therefore, invalid, and in light of the state's failure to appeal this determination, the rule which was challenged is no longer in the process of being adopted. See § 120.54, Fla....
...NOTES [1] Allen suggests to us that the agency has, in fact, adopted a new rule rezoning his property and, therefore, the instant appeal is not moot. The appropriate remedy would be to file a challenge to the new rule either during the adoption process pursuant to § 120.54, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 19 Fla. L. Weekly Fed. D 178
...Employees failed to allege any harm resulting from the delay in adopting the rule; the hearing officer thus correctly determined that no invalidity results from the delay. Employees finally argue that the agency's economic impact statement failed to meet the requirements of section 120.54(2)(b), Florida Statutes (1991). [13] The economic *1193 impact statement addresses each of the five factors identified in section 120.54(2)(b), even though the statement may not be as complete as employees might wish....
...p. v. Department of Health & Rehab. Servs.,
463 So.2d 1175, 1178 (Fla. 1st DCA 1984). This court has noted: Substantial compliance, not perfection, is all that is required of the EIS. The statement is sufficient if it addresses all areas required by section
120.54(2)(b), even though the estimates may be subject to debate....
...icap." [12] We also note the Supreme Court's recent holding that a statute that changes the degree of negligence necessary to maintain a tort action does not abolish the right of redress for an injury. Eller v. Shova,
630 So.2d 537 (Fla. 1993). [13] Section
120.54, Florida Statutes (1991) (rule-making; adoption procedures), in relevant part, provides: (2)(b) Each agency shall provide information on its proposed action by preparing a detailed economic impact statement....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2005 Fla. App. LEXIS 188, 2005 WL 74097
...Even before 2003, it should have been clear to DEP that they needed to adopt this policy through rulemaking. Chapter 376 has long imposed a duty on DEP to "[e]stablish rules, including but not limited to ... removal or disposal standards ..." §
376.303(1)(a), Fla. Stat. (1987-2003). More generally of course, section
120.54(1)(a), Florida Statutes (2003) clearly states, "Rulemaking is not a matter of agency discretion....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2000 WL 27551
...They argued that the Uniform Rules of *507 Procedure, which govern all administrative agencies, do not authorize a motion for reconsideration, and that the motions that had been filed before PERC did not toll the time for filing notices of appeal. The Uniform Rules, promulgated pursuant to section 120.54(a), Florida Statutes (1997), nowhere address motions for reconsideration....
...r. Appellees argue that PERC's rule authorizing motions for reconsideration conflicts with the Uniform Rules. They further argue that PERC's rule would only be valid if PERC had sought, and been granted, an exception to the Uniform Rules pursuant to section 120.54(5)(a)1, which provides that On filing with the department, the uniform rules shall be the rules of procedure ......
...rness. MOTIONS TO DISMISS DENIED. NOTES [1] In Saulter, the First District held that "since the Uniform Rules of Procedure did not authorize [the agency's] motion for reconsideration, the motion did not toll the time for appeal." Id. at 370. [2] See § 120.54(5)(a)1, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2015 WL 46515
...plied unadopted rules to “eliminate”
Amerisure’s 2009 “excess credits.” An “unadopted rule” is “an agency statement
that meets the definition of the term ‘rule,’ but that has not been adopted pursuant
to the requirements of” section 120.54, Florida Statutes....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 1432, 2011 WL 362411
...Under Florida Administrative Code rule 28-106.111(2), "[u]nless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision." Section 120.54(5)(b)4, Florida Statutes (2010), provides that a petition for administrative hearing must include: a....
...A statement of the relief sought by the petitioner, stating precisely the action petitioner wishes the agency to take with respect to the proposed action. Under section
120.569(2)(c), Florida Statutes (2010): A petition shall be dismissed if it is not in substantial compliance with [the requirements of section
120.54(5)(b)4] or it has been untimely filed....
...5th DCA 2001) (remanding for a formal hearing where employee's letter to school board did not explicitly request a hearing, but raised issues of disputed facts and should have been considered a sufficient hearing request). Even if his letter was a deficient petition for administrative hearing under section 120.54(5)(b)4, the appellant should have at least been provided the opportunity to file an amended petition....
CopyCited 1 times | Published | Supreme Court of Florida
...1976)." In Bert Rodgers, supra, the District Court found the agency's denial of an evidentiary hearing in accordance with Section
120.57, Florida Statutes (1977), to be improper under the peculiar facts of that case. The District Court noted that the agency did not exercise the discretionary authority granted it by Section
120.54(16), Florida Statutes (1977)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 11 Fla. L. Weekly 2594
...1985); and section
120.60(8) provides for emergency suspension under the police power, followed, nevertheless, by a formal suspension proceeding. Moreover, an emergency license suspension order must show compliance with the requirements set forth in section
120.54(9) in connection with agency adoption of an emergency rule....
...ocedure Act (APA) which it read in pari materia with the statutes particularly concerned with licensure and de-licensure of osteopaths. The parts of the APA involved included, among others, then section
120.60(6), which is now section
120.60(8), and section
120.54(9)(a), to which we have alluded above, and which sets forth the procedural protection requirements to be met when an emergency rule is to be adopted under the police power....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1991 WL 151982
...rity because it "enlarged, modified or contravened" the specific provisions of law it was designed to implement. This appeal and cross-appeal followed. When a rule is adopted, it must include a reference to the statutory provision being implemented. § 120.54(7), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2002 Fla. App. LEXIS 4714, 2002 WL 537041
...The Sierra Club was unhappy with the District's position and filed a challenge claiming the District's interpretation of section
373.414(8), Florida Statutes, and the cumulative impacts rule in section 12.2.8, Applicant Handbook, was an unadopted rule that violated section
120.54(1)(a), Florida Statutes....
...A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies: (c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1....
...ARY (10th ed.2002) available at http:// m.w.com. Section
373.414(1)(b), Florida Statutes, describes mitigation as "measures proposed by or acceptable to the applicant to mitigate the adverse effects that may be caused by the regulated activity." [3] Section
120.54(1)(a), Florida Statutes (1999) provides: Rulemaking is not a matter of agency discretion....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...Phelan of Parker, Skelding, Labasky & Corry, Tallahassee, for appellants. Robert A. Butterworth, Atty. Gen., Theresa M. Bender, Asst. Atty. Gen., for appellee. PER CURIAM. The appellants, corporate entities who operate retail optical establishments and provide opticianry services, filed a Section 120.54(4), Florida Statutes, rule challenge *377 to determine the invalidity of a proposed rule promulgated by the Department of Professional Regulation, Board of Opticianry (Board)....
...hich are either cost prohibitive or impermissible under existing leases. Additionally, the proposed rule will prevent any physician, optometrist or optician from serving as a sponsor unless that professional "actually dispenses eyewear." Pursuant to Section 120.54(4), Florida Statutes (1989), any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that it is an invalid exercise of delegated legislative authority....
...e agency; or the rule is arbitrary or capricious. According to Adam Smith Enterprises, Inc. v. State, Department of Environmental Regulation,
553 So.2d 1260 (Fla. 1st DCA 1989): [W]hen reviewing a hearing officer's determination arising out of ... a Section
120.54(4) ......
CopyPublished | District Court of Appeal of Florida | 23 Wage & Hour Cas. (BNA) 1041, 1978 Fla. App. LEXIS 17216
...lic building specified in the determination and has no prospective application to any other contract. Because they are not rules, the wage rate determinations are not subject to an attack of invalidity on the ground they were not adopted pursuant to Section 120.54, Florida Statutes (1975)....
CopyPublished | Florida 1st District Court of Appeal
...By this consolidated appeal, Health Care and Retirement Corporation of America (HCR) and Whitehall Boca (Whitehall) seek review of final agency action taken by the Department of Health and Rehabilitative Services (HRS) and the Department of Administrative Hearings (DOAH) pursuant to section 120.54(3) and (4)(a), Florida Statutes....
...Those residing there are entirely private-pay patients, as Whitehall's concept is to provide elite nursing home services to persons in the upper income bracket. The home is presently licensed for sixty-nine beds, but Whitehall desires to expand that number. Pursuant to section 120.54(3), [2] both HCR and Whitehall requested a public hearing on the proposed rule. At the same time, both parties filed petitions seeking an administrative determination of the validity of the proposed rule as provided in section 120.54(4)(a)....
...ial, and direct specific questions to department personnel at the conclusion of the hearing, or alternatively, into the record, but that he and his staff would not conduct a "question and answer session," as it was the department's primary duty at a 120.54(3) informal hearing "to listen rather than to speak." In response to HCR's inquiry as to whether *931 HRS would make any presentation regarding the rule, the hearing officer stated that questions would be commented on by department personnel but not resolved....
...However, neither HCR nor Whitehall sought to call witnesses, present issues or evidence, or propose any suggestions regarding the rule. The department refused to answer any of the questions presented by HCR and Whitehall. Consequently, both requested, pursuant to section
120.54(16), [5] that the informal proceeding be terminated and that a formal
120.57 proceeding be initiated....
...ise of delegated legislative authority. On appeal, HCR and Whitehall raise four points to challenge the orders entered by HRS and DOAH. Preliminarily, they argue that HRS abused its discretion in its failing to convene a separate hearing pursuant to section 120.54(16)....
...reby effectively prohibited from analyzing or commenting upon HRS rationale in developing the rule. HCR and Whitehall maintain that in order to obtain "good faith participation" by HRS in the rulemaking proceedings, a hearing is required pursuant to
120.54(16), and HRS's failure to convene that hearing constituted material error under Balino. We disagree. Section
120.54(16) accords an agency the discretion to convene a separate
120.57 hearing only upon its determining that the informal rulemaking hearing is inadequate to protect a party's substantial interests. The purpose of the informal hearing attended by HCR and Whitehall, as *932 stated in section
120.54(3), was to accord them the opportunity "to present evidence and argument ......
...appropriate to inform" HRS of their contentions. However, as HRS aptly argues, neither HCR nor Whitehall indicated at the hearing that they had witnesses to testify or exhibits to present which would justify the trial-type presentation contemplated by 120.54(16) and Balino....
...to respond to the barrage of questions fired at him by counsel for HCR, as the hearing was not convened for that purpose. Appellants have failed to show manifest error amounting to an abuse of discretion on the part of HRS, and accordingly, that the 120.54(3) hearing was inadequate to protect their interests....
...SMITH and WENTWORTH, JJ., concur. NOTES [1] In order to be a valid exercise of delegated legislative authority under section 381.494(8)(a), the HRS rules must be in accordance with federal statutes. Farmworker Rights Organization,
430 So.2d at 4. [2]
120.54(3) provides in part: If the intended action concerns any rule other than one relating exclusively to organization, procedure, or practice, the agency shall, on the request of any affected person received within 14 days after the date of publication of the notice, give affected persons an opportunity to present evidence and argument on all issues under consideration appropriate to inform it of their contentions. [3]
120.54(4)(a) provides: Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority....
...commented about evaluating access to nursing home care for the chronically ill under age 65. Counsel for the Florida League of Hospitals commented about the general policy statements included in the rule and discussed implementation of the rule. [5] 120.54(16) provides: Rulemaking proceedings shall be governed solely by the provisions of this section unless a person timely asserts that his substantial interests will be affected in the proceeding and affirmatively demonstrates to the agency that the proceeding does not provide adequate opportunity to protect those interests....
...lished by the Secretary by regulation." 42 C.F.R. §§ 123.412 and 123.413 are the pertinent federal regulations. For their text see Farmworker,
430 So.2d at 5-7, fn. 5 & 6. [7] Of course, parties affected by this rule have the mechanism provided by section
120.54(5) to petition HRS to adopt, amend, or repeal a rule.
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 13197, 2015 WL 5163747
...The Commission is also responsible for the development and implementation of a statewide product evaluation and approval system that operates in coordination with the Florida Building Code. See §
553.842(1), Fla. Stat. (2014). (“The commission shall adopt rules under [§§ ]
120.536(1) and
120.54 [Florida Statutes] to develop and implement a product evaluation and approval system that applies *348 statewide to operate in coordination with the Florida Building Code.”)....
...e scope of a declaratory statement. Although the Commission is responsible for adopting and modifying the Florida Building Code, see section
553.72(3), Fla. Stat., to do so it must first engage in the rulemaking process set forth in Chapter 120. See §
120.54(3)(a) (requiring public notice and opportunity to comment before rulemak-ing)....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 2081, 1985 Fla. App. LEXIS 15739
...These surveys include, but are not limited to, construction layout, topographic surveys, hydrographic surveys, quantity surveys, and special purpose surveys to the extent that all the aforementioned surveys relate to engineering services. Appellees filed a petition pursuant to section 120.54(4), Florida Statutes (1983), challenging the validity of the proposed rule as exceeding the Board’s delegated authority because the rule includes in the definition of “engineering survey” acts and services which appellees say con...
...We agree with the conclusion in the final order that no agency has inherent rulemaking authority and that any rule-making authority which the legislature may validly delegate to administrative agencies is limited by the statute conferring the power. Section 120.54(14), Florida Statutes (1983), provides: No agency has inherent rulemaking authority; nor has any agency authority to establish penalties for violation of a rule unless the Legislature, when establishing a penalty, specifically provides that the penalty applies to rules....
...d may, in certain instances, constitute a rule. Thus, where an agency’s declaratory statements are of such a general and consistent nature as to meet the definition of a rule, the statements must be promulgated in accordance with the provisions of section 120.54 governing rulemaking....
CopyPublished | Florida 1st District Court of Appeal | 2013 WL 4713000, 2013 Fla. App. LEXIS 14069
...was adequate to allow an amendment, and why the Board should not dismiss her Amended Petition as untimely. Herrmann responded by arguing that her August 6 letter was in substantial compliance with the requirements of a “petition” as specified in section 120.54(5)(b)4., Florida Statutes (2012)....
...The Board rejected Herrmann’s reliance on Julio Banks, P.E. v. Florida Engineers Management Corp.,
53 So.3d 1151 (Fla. 1st DCA 2011), and McIntyre v. Seminole County School Board,
779 So.2d 639 (Fla. 5th DCA 2001), in arguing that her August 6 letter was in substantial compliance with section
120.54(5)(b)4....
...d an incorrect statute. The Board was wrong, therefore, when it held that Banks and McIntyre were distinguishable. More important, though, is that in Banks we ruled: “[E]ven if [the] letter was a deficient petition for administrative hearing under section 120.54(5)(b)4., the appellant should have at least been provided the opportunity to file an amended petition....
CopyPublished | Florida 3rd District Court of Appeal | 11 Fla. L. Weekly 2032, 1986 Fla. App. LEXIS 9767
...nterest, involve the entry of a rule or order, or preclude meaningful entry into the agency’s decision-making process). Cf. Bayonet Point Hospital v. Department of Health and Rehabilitative Services,
490 So.2d 1318, 1319 (Fla. 1st DCA 1986) (under Section
120.54, Florida Statutes (Supp....
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 21691
SCHEB, Acting Chief Judge. In this appeal from a final order of the Department of Revenue, appellants contend that they have been denied a rule-making hearing under section 120.54(3), Florida Statutes (1981), as well as a “draw-out” hearing pursuant to section 120.54(16), in respect to an amendment to Rule 12A-1.61, Florida Administrative Code....
...12A-1.61, Florida Administrative Code. This rule concerns the imposition and collection of a sales tax on rentals of condominium units where the rental period is less than six months. A timely request for a rule-making hearing was filed pursuant to section 120.54(3). Thereafter, appellants, who are the owners or agents for individually owned condominium units, requested a draw-out proceeding pursuant to section 120.54(16)....
...Appellants, however, attended and were heard at the meeting at which the rule was adopted. Therefore, DOR argues: (1) appellants cannot now challenge the irregularity of the rule-making procedures, and (2) by failing to request a formal hearing under section
120.57 pursuant to section
120.54(16) at that time, appellants cannot complain of being denied a draw-out hearing. Appellants were at least entitled to notice of a hearing under section
120.54(3), and their attendance at an unnoticed meeting was not an acceptable substitute for DOR’s failure to comply with the statutory requirement of giving affected parties notice and an opportunity to be heard prior to adoption of the rule....
...At this point it is premature to determine whether appellants will qualify for a draw-out hearing pursuant to section
120.57. Should DOR renew proceedings, the answer to that question will depend on the extent to which the appellants are able, and are permitted, to make an effective presentation at the section
120.54(3) hearing....
CopyPublished | District Court of Appeal of Florida | 1980 Fla. App. LEXIS 17573
...elow, either before the hearing examiner or the Department. 4245 Corporation, Mother’s Lounge, Inc., et al. v. Division of Beverage,
348 So.2d 934 (Fla.App.). However, the rule complained of is not an “agency” rule subject to the strictures of Section
120.54 of the Administrative Procedure Act....
CopyPublished | Florida 1st District Court of Appeal | 9 Fla. L. Weekly 1944, 1984 Fla. App. LEXIS 14994
...The inmate will enter the frozen release date period if, as a result of the incentive gain time entered by the twelfth of the month, his release date *640 falls within the following month. Inmates will not benefit during the frozen period from any further incentive gain time adjustments to their release date. Section 120.54(9), Florida Statutes (1983), permits the promulgation of emergency rules which may not be effective for a period longer than 90 days and are not renewable....
...hereby increasing the possibility of the releasees reverting to criminal activities and jeopardizing the health and welfare of the public. We find unpersuasive petitioner’s argument that Emergency Rule 33ER84-5 does not satisfy the requirements of § 120.54(9), Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal
unless adopted by certain statutory procedures. See §
120.54(1)(a), Fla. Stat. In general, “if an agency statement
CopyPublished | District Court of Appeal of Florida | 7 Educ. L. Rep. 471, 1982 Fla. App. LEXIS 21306
OWEN, WILLIAM C., Jr., (Retired), Associate Judge. These consolidated administrative appeals are from substantially identical final orders entered by hearing officer William E. Williams of the Division of Administrative Hearings on separate Section 120.54(4), Florida Statutes (1980), rule challenges to the proposed amendments to the School Board’s rule pertaining to school attendance zones for the district’s middle schools and high schools, respectively....
...nce zones place them in a new school so long as the parents shall be responsible for all necessary transportation. A group of parents of students affected by the rezoning of high school attendance boundaries filed a timely rule challenge pursuant to Section 120.54(4), Florida Statutes, as did a separate group of parents of students affected by the rezoning of the middle school boundaries....
CopyAgo (Fla. Att'y Gen. 1992).
Published | Florida Attorney General Reports
...as provided by general law for the supreme court, each district court of appeal, and each judicial circuit for all trial courts within the circuit. 13 Section 7(a), Art. IV, State Const. 14 With the exception of "emergency rules" adopted pursuant to s. 120.54 (9), F.S. 15 Section 120.54 (1), F.S.
CopyAgo (Fla. Att'y Gen. 1988).
Published | Florida Attorney General Reports
responsible for an award of attorney's fees. Section
120.54, F.S., generally prescribes the procedure to
CopyPublished | Florida 1st District Court of Appeal | 2003 Fla. App. LEXIS 15280, 2003 WL 22327076
...The motion requested the following relief relevant to this appeal: a. The FDLE’s statements and policies with respect to the selection and approval of a supplier of ARS to be utilized in all inspections of all evidential breath testing instruments in Florida constitute a rule, and the FDLE is in violation of § 120.54(l)(a), Florida Statutes, for failure to comply with the rulemak-ing requirements of the Administrative Procedure Act, and; b. The FDLE’s statements and policies regarding the methodology and criteria it utilizes to approve ARS supplied by outside entities, as currently set forth by contract, constitute rules, and the FDLE is in violation of § 120.54(l)(a), Florida Statutes, for failure to comply with the rule-making requirements of the Administrative Procedure Act .......
...n were substantially the same as the ones adopted by rule or that the procedures utilized were scientifically reliable. WAS USE OF THE COA FORM AND DESIGNATION OF A SOLE SOURCE FOR THE ARS AGENCY ACTION PURSUANT TO AN UN-PROMUGATED RULE? Pursuant to section 120.54(3), Florida Statutes (1999), prior to the adoption of a rule the agency must comply with certain requirements such as providing notice, holding hearings to allow input from interested parties and the public, filing, and publication....
...There, the appellant appealed the suspension of his driver’s license. As part of his challenge, Lanoue attacked the means, methods, and criteria for analyzing and approving the source of the ARS used to calibrate the breath-testing machines, alleging that these statements and policies were actually rules subject to section 120.54....
...g the means, methods, and criteria for analyzing and approving the source of the alcohol reference solution used to test the instruments. The petition asserts that these statements and policies have not been adopted or proposed as rules, contrary to section 120.54(l)(a)....
...rocess, there was no comment regarding these concentrations when the rule was adopted in 1999. . Section
120.56(4)(e), Florida Statutes (2002), stated in relevant part: Prior to entry of a final order that all or part of an agency statement violates s.
120.54(l)(a), if an agency publishes, pursuant to s.
120.54(3)(a), proposed rules which address the statement and proceeds expeditiously and in good faith to adopt rules which address the statement, the agency shall be permitted to rely upon the statement or a substantially similar statement as a basis for agency action if the statement meets the requirements of s....
CopyPublished | Florida 1st District Court of Appeal | 2001 Fla. App. LEXIS 14463
...Because the petitions filed by appellants fail to allege disputed issues of material fact, and instead appear to raise issues regarding AHCA’s interpretation of section
409.907, Florida Statutes (2000), we affirm the dismissal of the petitions seeking a section
120.57(1) hearing. See §
120.54(5)(b)4., Fla....
...59-1.018 (1998) (adopting the Uniform Rules of Procedure); see also §
120.569(2)(c), Fla. Stat. (2000) (“Unless otherwise provided by law, a petition or request for hearing shall include those items required by the uniform rules adopted pursuant to s.
120.54(5)(b)4.”)....
CopyPublished | Florida 1st District Court of Appeal
...his two pending administrative cases—a section
120.57(1), Florida Statutes, case and
an unadopted rule challenge case—and (2) to compel the Office of Judges of
Compensation Claims (OJCC) to take action on the petition to initiate rulemaking he
filed under section
120.54(7), Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 1982 Fla. App. LEXIS 21598
...We affirm the *954 order 1 of the Department of Administration’s hearing officer. However, one issue raised warrants discussion. Appellants claim that the Commission provided inadequate notice of the proposed rules to the class of persons to whom the intended action was directed. See § 120.54(l)(a), Fla.Stat....
...posed rules prior to their adoption. However, appellants contend that Polk Correctional Institution does not receive the Florida Administrative Weekly and does not subscribe to any of the newspapers in which the notice was published. They argue that § 120.54 requires the Commission to post notice in the correctional institutions, as § 120.54(l)(a)3 requires of educational units....
...otice of each of the proceedings and copies of the proposed rules. 2 Under these circumstances, we agree with the hearing officer’s finding that, absent a rule prescribing more, the notice provided by the Commission went beyond the requirements of § 120.54. However, our opinion should not be construed as approving the Commission’s failure to adopt a rule which provides for notice to the affected class of persons, pursuant to § 120.54(l)(a)....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 12284, 1995 WL 694646
...This is an appeal from a final order of the Division of Administrative Hearings, reviewing the validity of proposed rules related to Part II of Chapter 386, Florida Statutes, the Florida Clean Indoor Air Act (the Act). After a formal hearing on the merits pursuant to section 120.54(4), Florida Statutes, the hearing officer held that the Appellant Garrison was without standing to challenge the proposed rules....
CopyPublished | Florida 1st District Court of Appeal | 1980 Fla. App. LEXIS 18219
...Rice v. Dept. of Health and Rehab. Serv.,
386 So.2d 844 (Fla. 1st DCA 1980), in part granting and in part denying FILS’s petition for agency rule-making on various subjects and “to provide the minimum public information required by s.
120.53.” Section
120.54(5), Florida Statutes (1979). The Commission’s voluntary accession to several FILS requests leaves for our consideration only the limited issues of (1) whether FILS had standing to petition for Section
120.54(5) remedies; if so, (2) whether the Commission was bound *249 to grant the petition for compliance with Section
120.53, requiring rules of organization, practice, and procedure, rules for the scheduling of hearings and prescribing a pu...
...hether the Commission is bound to adopt a rule directing that a Commissioner or the Commission rather than its hearing examiner panels conduct the prison interviews which the Commission accepts as evidence in parole rescission matters. Petitions for Section 120.54(5) relief may be initiated by “any person regulated by an agency or having a substantial interest in an agency rule ....
...” That rather liberal test of standing-in contrast to somewhat more restrictive standards written elsewhere in the APA, see Dept, of Offender Rehab. v. Jerry,
353 So.2d 1230 (Fla. 1st DCA 1978), cert. den.,
359 So.2d 1215 (Fla.l978)-includes all prisoners, for they are not barred from Section
120.54(5) remedies by the restrictions stated in Section
120.52(10)....
...on provides indigent inmates representation and other legal services in parole matters, and which therefore has a “substantial interest” in rules and information of the kind sought. Having standing to petition for the agency action authorized by Section
120.54(5), and being aggrieved by the Commission’s refusal in part to grant the relief petitioned for, FILS is “a party who is adversely affected by final agency action” and is entitled to a Section
120.68 appeal....
...Wainwright,
379 So.2d 148 (Fla. 1st DCA 1980), aff’d,
389 So.2d 1181 (Fla.1980), the Commission is bound to adopt the practice and procedure rules which Section
120.53 states “each agency shall” adopt, and the Commission must, in the words of Section
120.54(5), “provide the minimum public information required by s....
CopyPublished | Florida 4th District Court of Appeal | 2000 Fla. App. LEXIS 15223, 2000 WL 1726990
...describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule.” See
120.52(15), Fla. Stat. (1999). In turn, section
120.54(l)(a) provides that “[e]ach agency statement defined as a rule by s....
...If the School Board desires to implement this unusual statutory authorization, that in itself involves the kind of agency policy decision embraced by the rule-making requirements of the APA. Moreover it cannot be very difficult or time consuming for the School Board to formally adopt this policy by compliance with section 120.54....
CopyPublished | Florida 4th District Court of Appeal | 2002 WL 31557666
...environmental, recreational, and flood control purposes. The Association filed a petition pursuant to section
120.56(4), Florida Statutes, seeking an administrative determination that the above agency statement is an unadopted rule, in violation of section
120.54(1)(a), Florida Statutes. Section
120.56(4)(a) provides: Any person substantially affected by an agency statement may seek an administrative determination that the statement violates s.
120.54(1)(a)....
...The petition shall include the text of the statement or a description of the statement and shall state with particularity facts sufficient to show that the statement constitutes a rule under s.
120.52 and that the agency has not adopted the statement by the rulemaking procedure provided by s.
120.54....
...In response to the Association's proposed final order, the District asserted that it had initiated rulemaking pursuant to section
120.56(4)(e), Florida Statutes. That section provides: Prior to entry of a final order that all or part of an agency statement violates s.
120.54(1)(a), if an agency publishes, pursuant to s.
120.54(3)(a), proposed rules which address the statement and proceeds expeditiously and in good faith to adopt rules which address the statement, the agency shall be permitted to rely upon the statement or a substantially similar statement as a basis for agency action if the statement meets the requirements of s.
120.57. The ALJ issued an order to show cause requesting the parties to advise whether the District had complied with the requirements of sections
120.54(3)(a) and
120.54(4)(e)....
...er the District complied with section
120.56(4)(e). According to the Association, holding otherwise would be contrary to the legislative intent of this section and have a chilling effect upon the future commencement of such proceedings. We disagree. Section
120.54(1)(a) expresses the Legislature's intent that agencies adopt a statement that is the equivalent of a rule as a rule through the rulemaking process whenever possible. It states: (a) Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s.
120.52 shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable. (Emphasis added). 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....
...[1] Section
120.56(4) authorizes any person substantially affected by an agency's statement to challenge the statement on the ground that it constitutes a rule under section
120.52 that has not been adopted by the rulemaking procedures provided by section
120.54....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 2449, 1986 Fla. App. LEXIS 10785
...412(5), Florida Statutes; 1 2) that Chapter 381, Florida Statutes, 2 precludes DER’s consideration of septic tank impact on water quality in this proceeding; 3) that DER’s policy of considering such impact was invalid as a rule not adopted under section 120.54, Florida Statutes, and not justified on the record; and 4) that DER abused its discretion in requiring a bond....
...pollution is invalid as an un-promulgated rule. The thrust of this argument is that that policy falls within the definition of a ‘rule’ as contained in Section
120.52(15), Florida Statutes, and thus must be adopted pursuant to the procedures of Section
120.54....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 11991
...1D-17.0045(1) are invalid exercises of delegated legislative authority. The order also determined that Sherman College had standing to challenge the subject rule amendments because it proved that it is substantially affected by this agency action. §§
120.54(4) and
120.56(1), Fla.Stat....
...), because it had only regional or institutional accreditation by USDOE and COPA but not professional or specialized accreditation by an agency recognized by US-DOE and COPA. On March 11, 1993, Sherman College filed separate petitions pursuant to subsection
120.54(4) and subsection
120.56(1), Florida Statutes (1993), challenging the validity of the amendments to rules 21D-11.001(2)(c) and 21D~17.0045(1) on several grounds, including that they are invalid exercises of legislative authority and vi...
...mpact on its enrollment. The hearing officer made the following conclusions of law: 19. At hearing, Sherman College proved its standing to challenge the rule amendments at issue. That is, it is “sub *561 stantially affected” pursuant to sections
120.54(4) and
120.56(1), F.S....
...agency rules. (Fla. Medical Assn., supra, at 1115) We are further reminded by the court that in State Department of Health and Rehabilitative Services v. Alice P., 367 So2d 1045 (Fla. 1st DCA 1979) it recognized a physician had standing pursuant to section 120.54(4), F.S....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 11013, 1994 WL 630636
...her agency of duties with respect to which the rule was adopted remain in effect, as rules of the respective agency to which the duties were transferred, until the rule is specifically changed in the manner provided by law. The trial court relied on Section 120.54(12), Florida Statutes, which provides that: Whenever an act of the Legislature is enacted which requires implementation of the act by rules of an agency within the executive branch of state government, such rules shall be drafted and f...
...proved method of administration. Appellee argues that by allowing the HRS rules to remain in effect “in the manner provided by law,” Section 60 of Chapter 92-58 merely enabled the FDLE to take advantage of the 180-day grace period provided under Section 120.54(12), Florida Statutes. Although Section 120.54(12), provides a 180-day grace period “unless the provisions of the act provide otherwise,” the act does not otherwise provide....
...d in suppressing the results of appellee’s breath test. Chapter 92-58 transferred to the FDLE the authority to promulgate rules pertaining to the administration of physical and chemical tests for blood alcohol content. As noted by the trial judge, Section 120.54(12), Florida Statutes, provides: Whenever an act of the Legislature is enacted which requires implementation of the act by rules of an agency within the executive branch of state government, sueh rules shall be drafted and formally pro...
...of the FDLE upon the transfer of authority embodied in Chapter 92-58, “until the rule is specifically changed in the manner provided by law.” The inclusion of the phrase “in the manner provided by law” does not make the “180-day rule” of Section 120.54(12) applicable where it is not otherwise applicable....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 8766, 1990 WL 178663
...d the emergency rule was valid. “An emergency rule ... may not be effective for a period longer than 90 days and shall not be renewable, except during the pendency of a challenge . to proposed rules addressing the subject of the emergency rule.” § 120.54(9)(c), Florida Statutes (1987)....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 2601, 1987 Fla. App. LEXIS 10982
...y printed on April 4, 1986, provided that the Florida Real Estate Commission would be meeting on April 15 to discuss official business and that an agenda would be available upon request. The Varneys contend this notice was not sufficient since under section
120.54(1), Florida Statutes (1985), the meeting must be noticed in the Florida Administrative Weekly not less than twenty-one days prior to the intended action. Section
120.54 deals with rule making, not administrative hearings, but section
120.53 requires notice to “particular classes of persons to whom the intended action is directed” in the same manner as prescribed for rule making....
CopyPublished | Florida 1st District Court of Appeal | 2002 Fla. App. LEXIS 15860, 2002 WL 31431632
PER CURIAM. In this administrative appeal, the sole issue properly before us is whether, as required by section 120.54(3)(d)l, Florida Statutes (2001), the Agency for Health Care Administration’s June 15, 2001, Notice of Change to proposed amendments to Florida Administrative Code Rule 59C-1.033 was “supported by the record of public hearings held...
CopyPublished | Florida 1st District Court of Appeal | 2002 Fla. App. LEXIS 15859, 2002 WL 31431620
...brought by the Department of Insurance against United Wisconsin. United Wisconsin contended unsuccessfully before an administrative law judge that specified allegations in the administrative complaint were in fact un-promulgated rules prohibited by section 120.54, Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal | 2007 Fla. App. LEXIS 7029, 2007 WL 1319263
...reated as presumptively valid, or merely voidable, and must be given legal effect until invalidated in a section
120.56 rule challenge proceeding. The rule may be invalidated before becoming effective only by filing a rule challenge proceeding under section
120.54(4), Florida Statutes (1987), or initiating a drawout proceeding authorized in section
120.54(17), Florida Statutes (1987)....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 4048
...1 On May 29, 1992, appellees *805 Bradley, Balester, and Englert, workers’ compensation claimants receiving treatment from chiropractors; Donald H. Woeltjen, D.C.; and the Florida Chiropractic Association, Inc., filed a petition to challenge the proposed rules, pursuant to section 120.54(4), Florida Statutes (1991)....
...accrediting standards” of CARF 2 ; (4) the proposed new rules amend or modify section
440.13, and. exceed the authority for rulemaking delegated to the Division, “constituting an invalid exercise of delegated ... legislative authority under Subsection
120.54(4), Florida Statutes (1991).......
CopyPublished | District Court of Appeal of Florida | 1982 Fla. App. LEXIS 20088
...Subsequently appellant’s major professor signed the “Final Term Degree Clearance Form,” but the department chairman refused to allow appellant to take the Ed.D. degree and revoked the options set out above. The order denying the petition correctly noted that the procedures were governed by §
120.57, Florida Statutes, §
120.54(10), Florida Statutes, and Fla.Admin.Code Rule 28-5....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 5343, 1995 WL 298948
...The Department’s reliance on when the exceptions were received in its office is misplaced. Model rule 28-5.103, Florida Administrative Code, allows an additional five days to be *199 added to prescribed time limits when service is made by mail. This model rule applies to the Department under section 120.54(10), Florida Statutes, and we hold that Beacon’s exceptions were timely under the rule....
...insured's contract of insurance. In return, Beacon receives a written agreement or promissory note from the insured to repay the amount advanced, together with a service charge authorized by law. See §§
627.826(1) and
627.827, Fla.Stat. (1993). . Section
120.54(10) provides in pertinent part: On filing with the department [of State], the appropriate model rules shall be the rules of procedure for each agency subject to this act, to the extent that each agency does not adopt a specific rule of...
CopyPublished | District Court of Appeal of Florida | 1982 Fla. App. LEXIS 20039
been formally adopted as a rule pursuant to Section 120.-54, Fla.Stat. (1979). The parties stipulated that
CopyPublished | Florida 1st District Court of Appeal | 1978 Fla. App. LEXIS 16071
...ondents’ rule-challenge petition pursuant to Section
120.56, Florida Statutes (1977). Respondents contend that the Department has issued a declaratory statement, Section
120.565, which constitutes an illicit rule not promulgated in accordance with Section
120.54....
...nding before the hearing officer, is that the Department, by issuing a declaratory statement as to the applicability of a statute, rule or order, in response to a petition for such á statement, uttered a statement of general applicability for which Section 120.54 rulemaking proceedings are essential....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 1202, 1988 Fla. App. LEXIS 2062, 1988 WL 47488
...ruman Annex responsible only for the actual increase over nonexempt uses. Second, Truman Annex contends that the FKAA’s interpretation of Rule 48-3.002(9) of the Customer Service Policies 2 amounts to rulemaking without meeting the requirements of section 120.54, Florida Statutes (1987)....
CopyPublished | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 1196
...strative Hearings (DOAH), seeking a holding that the Department of Corrections (DOC) Policy and Procedure directive 2.02.13 and BCI Operating Procedure (IOP) 78-G-14 are rules which have not been validly promulgated under the provisions of statutory section 120.54, Florida Statutes....
...We agree with the hearing officer that the department's "Inmate Clothing and Linen Policy" directive 2.02.13 is of such breadth and application throughout the prison system as to constitute a statement of agency policy not promulgated as a department rule in accordance with section 120.54, Florida Statutes, and therefore is an invalid exercise of delegated legislative authority....
CopyPublished | Supreme Court of Florida | 1978 Fla. LEXIS 4802
agency can promulgate rules which affect them. Section
120.54, Florida Statutes (1977). Shareholders in corporations
CopyPublished | Florida 1st District Court of Appeal | 98 L.R.R.M. (BNA) 3224, 1978 Fla. App. LEXIS 15888
...mpliance with amendments to Chapter 447 by Chapter 77-343, Laws of Florida. PERC has authority to enter an order of the character complained of, Section
447.603, Florida Statutes (1977). The order did not perform rulemaking functions in violation of Section
120.54, Florida Statutes (1977), but was subject to the requirements of Section
120.57(2), applicable to an agency determining the substantial interests of a party in proceedings not involving a disputed issue of material fact....
CopyPublished | Florida 1st District Court of Appeal | 1999 Fla. App. LEXIS 5937
...d through the Office of Public Counsel appeal a final administrative order invalidating the Public Service Commission's proposed rule 25-30.431. An administrative law judge declared the proposed rule invalid on multiple grounds. We reverse. Invoking section 120.54(5), Florida Statutes (1995), the Florida Waterworks Association (FWA) petitioned the Public Service Commission (PSC) to initiate rulemaking....
...which differed in two major particulars from the proposal on the subject FWA had attached to its petition to initiate rulemaking. FWA then challenged the PSC's proposed rule by filing a petition for determination of invalidity of proposed rule under section 120.54(4), Florida Statutes (1995)....
...ding in a revised statement of regulatory cost, the PSC took the position that the alternative did not facilitate just, reasonable, and compensatory rates, and did not therefore "substantially accomplish the objectives of the law being implemented." § 120.541(1)(a), Fla....
...rcise of delegated legislative authority and may not be utilized by the PSC for its stated regulatory purposes." A wide-ranging final order concluded that (1) the PSC's revised statement of estimated regulatory costs did not meet the requirements of section
120.541 and was so deficient as to be a material failure to follow rulemaking procedures under section
120.52(8)(a); (2) the proposed rule made it "impossible for a utility to determine the nature and extent of the presentation necessary to o...
...Among the requirements effective October 1, 1996, is that an agency make a statement of estimated regulatory costs [1] whenever a substantially affected person submits "a good faith written proposal for a lower cost regulatory alternative to a proposed rule." § 120.541(1)(a), Fla....
...(f) In the statement or revised statement, whichever applies, a description of any good faith written proposal submitted under paragraph (1)(a) and either a statement adopting the alternative or a statement of the reasons for rejecting the alternative in favor of the proposed rule. § 120.541(2), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 1995 WL 271012
...to as Miccosukees], appeal from an order entered by the Department of Environmental Protection [Department] summarily denying their petition for rulemaking. We reverse. The Miccosukees filed a petition for rulemaking with the Department, pursuant to section 120.54(5), Florida Statutes (1993), requesting that the Environmental Regulation Commission [Commission], a branch of the Department, establish a numerical standard to limit concentrations of phosphorous in the *506 surface waters of the Everglades Protection Area and contiguous Florida waters....
CopyAgo (Fla. Att'y Gen. 1983).
Published | Florida Attorney General Reports
s
120.54(1), except for emergency meetings. Section
120.54(1)(b), among other things, provides that notices
CopyPublished | District Court of Appeal of Florida | 1985 Fla. App. LEXIS 13115, 10 Fla. L. Weekly 245
...Further statutory solutions are available to FLAWAC. Under section
380.07(2), the state land planning agency (DCA) is authorized to prescribe by rule those orders required to be transmitted by the local government authority issuing the development order. Respondents may utilize the provisions of section
120.54, Florida Statutes, to require that future development orders be transmitted to the DCA in a complete and certified form....
CopyPublished | District Court of Appeal of Florida | 1979 Fla. App. LEXIS 14388
...§ 120.-52(14). 4. The scoring criterion by which mastery of the basic skills and satisfactory *662 performance in functional literacy are determined is invalid for its failure to have been promulgated in accordance with the APA, specifically F.S. § 120.54.” The order found and determined that Rule 6A-1.941, as promulgated by the State Board of Education, was a valid rule within the contemplation of Florida Statutes, Chapter 120, the Administrative Procedure Act....
CopyPublished | Florida 1st District Court of Appeal | 1993 Fla. App. LEXIS 2385, 1993 WL 53146
ERVIN, Judge. We affirm the School Board of Alachua County’s final order denying appellant’s petition for rulemaking, which was filed pursuant to Section 120.54(5), Florida Statutes (Supp.1990). The school board’s reasons for denying the petition were sufficient under section 120.54(5), and no legislative authority mandates the adoption of appellant’s proposed rule....
CopyPublished | Florida 1st District Court of Appeal | 1997 Fla. App. LEXIS 2526, 1997 WL 121162
PER CURIAM. Because appellant failed to show that he had been injured by application of the rule he sought to amend, he lacked standing to seek its amendment pursuant to section 120.54(5), Florida Statutes (1995)....
CopyPublished | Florida 1st District Court of Appeal | 2006 Fla. App. LEXIS 3719, 2006 WL 658899
...ode Rule 61D-11.027. 1 Petitioners argue that the Divi *561 sion’s findings of an immediate danger to the public health, safety, or welfare, upon which emergency rule 61DER05-1 is based, are insufficient to justify emergency rulemaking pursuant to section 120.54(4), Florida Statutes (2005)....
...Attached to the Division’s reasons was a flier advertising new structured/no-limit Texas Hold’em tournaments at a licensed pari-mutuel facility that is not a party to this action. We have jurisdiction to review an emergency rule promulgated by an administrative agency, see § 120.54(4)(a)3.; Fla....
...Democratic Party v. Hood,
884 So.2d 1148, 1151 (Fla. 1st DCA 2004). In actions such as this, the courts do not generally concern themselves with the substantive validity of the emergency rule; rather, the concern is whether the agency followed the requirements of section
120.54(4)(a), Florida Statutes. Id. Section
120.54(4)(a), Florida Statutes (2005), provides that, where an administrative agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, it may adopt any rule necessitated by such danger....
...he public interest, and the agency publishes, in writing, the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. § 120.54(4)(a), Fla....
...ecision, nor the conduct of no-limit poker tournaments created an immediate danger to the public health, safety, or welfare. Therefore, the Division’s reasons for finding an immediate danger do not rise to the level of an emergency contemplated by section 120.54(4)(a), Florida Statutes (2005), and are inadequate to justify emergency rulemaking....
CopyPublished | Supreme Court of Florida
...120.66(1), Florida Statutes, if such communications are public
records; all matters placed on the record after an ex parte
communication; and the official transcript.
(ii) In an appeal from a rule adoption
pursuant tounder sections
120.54 or
120.68(9), Florida Statutes, in
which the sole issue presented by the petition is the
constitutionality of a rule and there are no disputed issues of fact,
the record shallwill consist only of those documents from the
rulemaking record compiled by the agency that materially address
the constitutional issue....
...The agency’s rulemaking record consists of
all notices given for the proposed rule; any statement of estimated
regulatory costs for the rule; a written summary of hearings on the
proposed rule; the written comments and responses to written
comments as required by sections 120.54 and 120.541, Florida
Statutes; all notices and findings made pursuant tounder section
120.54(4), Florida Statutes; all materials filed by the agency with
the Administrative Procedures Committee pursuant tounder section
120.54(3), Florida Statutes; all materials filed with the Department
of State pursuant tounder section 120.54(3), Florida Statutes; and
all written inquiries from standing committees of the legislature
concerning the rule.
-7-
(F) Immediate Final Orders....
CopyPublished | Supreme Court of Florida
...120.66(1), Florida Statutes, if such communications are public
records; all matters placed on the record after an ex parte
communication; and the official transcript.
(ii) In an appeal from a rule adoption
pursuant tounder sections
120.54 or
120.68(9), Florida Statutes, in
which the sole issue presented by the petition is the
constitutionality of a rule and there are no disputed issues of fact,
the record shallwill consist only of those documents from the
rulemaking record compiled by the agency that materially address
the constitutional issue....
...The agency’s rulemaking record consists of
all notices given for the proposed rule; any statement of estimated
regulatory costs for the rule; a written summary of hearings on the
proposed rule; the written comments and responses to written
comments as required by sections 120.54 and 120.541, Florida
Statutes; all notices and findings made pursuant tounder section
120.54(4), Florida Statutes; all materials filed by the agency with
the Administrative Procedures Committee pursuant tounder section
120.54(3), Florida Statutes; all materials filed with the Department
of State pursuant tounder section 120.54(3), Florida Statutes; and
all written inquiries from standing committees of the legislature
concerning the rule.
-7-
(F) Immediate Final Orders....
CopyPublished | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 312, 2017 WL 1021849, 2017 Fla. LEXIS 585
...w.” §
120.68(l)(a), Fla. Stat. (2016). “ ‘Agency action’ means the whole or part of a rule or order, or the equivalent, or the denial of a petition to adopt a rule or issue an order. The term also includes any denial of a request made under s.
120.54(7).” §
120.52(2), Fla....
...w. . As noted previously, the record indicates that FPUC’s wholesale power purchase agreement with JEA actually expires in December 2017. This appears to be a scrivener's error in the Commission’s order. . Superseded on other grounds by statute, § 120.54(1)(a), Fla....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 2413, 1998 WL 107291
...aws, Sections
627.411(l)(c) and
626.9541(l)(a)5.,” Florida Statutes (1997), which forbid misleading titles, headings, and advertising. The same order determined that a different agency statement did constitute an unpromulgated rule in violation of section
120.54(l)(a), Florida Statutes (1997), a determination we do not disturb on the Department’s cross-appeal....
...reverse. With limited exceptions, an award of costs and attorney’s fees in such circumstances is mandatory. The final order under review granted in part Security Mutual’s petition alleging, under section
120.56(4), Florida Statutes (1997), that section
120.54(l)(a), Florida Statutes (1997), had been violated....
...96-159, § 25, at 196, Laws of Fla., (and as further amended in 1997, Ch. 97-176, § 11, at 3333, Laws of Fla., to include exceptions not applicable here) provides: (4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
120.56(4).— (a) Upon entry of a final order that all or part of an agency statement violates s.
120.54(l)(a), the administrative law judge shall award reasonable costs and reasonable attorney’s fees to the petitioner, unless the agency demonstrates that the statement is required by the Federal Government to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds....
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 17261
...board did not impose an illegal limitation upon the statutory powers of the superintendent (Point One); that such resolution did not constitute a rule within the meaning of F.S.
120.52(14) thereby requiring adherence to the procedure set forth in F.S.
120.54 and that the board did not act improperly in failing to afford the superintendent a “section
120.57 hearing” prior to the passage of the challenged resolution....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 2052, 1986 Fla. App. LEXIS 8678
...ERC thus determined that if piped-in water is available, there can be no “single source aquifer,” and by agency rule, G-I classification is precluded. These proceedings began June 7, 1983, with the filing of a petition to initiate rule-making by Mr. Schatz under Section 120.54 and various agency rules....
CopyPublished | District Court of Appeal of Florida | 5 Media L. Rep. (BNA) 1510, 1979 Fla. App. LEXIS 14957
...Since the principal place of business of the Times is within our district, we have jurisdiction of these proceedings. Section
120.68(2), Florida Statutes (1978 Supp.). Appeals may be taken directly, without exhaustion of administrative remedies, from emergency orders promulgated under Sec *306 tion
120.54(9)(a), Florida Statutes (1978 Supp.). Postal Colony Co., Inc. v. Askew,
348 So.2d 338 (Fla. 1st DCA 1977). The statutory- authority for an agency such as the Department to issue an emergency rule is found in Section
120.54(9)(a), Florida Statutes (1978 Supp.), which reads as follows: (9)(a) If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the imme...
...the petition. Our decision in this case should not be construed to prohibit the Department from promul *307 gating a new emergency rule following the requirements of law or from seeking a permanent rule pursuant to the normal rule-making procedures. Section 120.54(9)(c)....
CopyPublished | District Court of Appeal of Florida
promulgated by the Florida Supreme Court. See §
120.54(5)(a)1., Fla. Stat. (2016) (providing that the
CopyPublished | Florida 5th District Court of Appeal
...Thus, the 2019 and 2021 rulemakings that purported to
amend the Classification Summary are also “rules.”
The APA defines “unadopted rule,” in turn, as “an agency
statement that meets the definition of the term ‘rule,’ but that has
not been adopted pursuant to the requirements of §
120.54.”
§
120.52(20), Fla. Stat. Section
120.54 contains three provisions
3
relevant to this appeal....
...emergency rules like those at issue here. The notice of proposed
rule must set forth, among other things, “the full text of the
proposed rule or amendment,” and it must “be published in the
Florida Administrative Register not less than 28 days prior to the
intended action.” Id. § 120.54(3)(a). Second, the statute establishes
requirements for incorporation of material by reference. Id.
§ 120.54(1)(i); see also Fla. Admin. Code R. 1-1.013(1) (2021)
(Department of State regulation for incorporation by reference).
And third, the statute prohibits amending rules by reference only.
§ 120.54(1)(i)4., Fla....
...adoption, and it did not need to publish the text (or an active
hyperlink to the text) 28 days beforehand.
DCF’s argument cannot be reconciled with its stipulations.
Yes, the Classification Summary is “material incorporated by
reference” within the meaning of section 120.54 and Rule 1-1.013,
and it is thus subject to their requirements for incorporation by
reference. But as DCF conceded, the Classification Summary is
also a “rule” within the meaning of section 120.54....
...Therefore, it is
subject to the statute’s additional provisions relating to rules. One
of those provisions requires the agency to set forth “the full text of
the proposed rule or amendment” in a notice of proposed rule, and
to publish the notice “not less than 28 days prior to the intended
action.” § 120.54(3)(a), Fla....
...This 28-day public notice
4
requirement contains no exception for rules that are incorporated
by reference; “any” means “any.” Another provision is that “[a] rule
may not be amended by reference only.” Id. § 120.54(1)(i)4....
...That regulation
does not purport to displace the APA’s 28-day notice requirement
for rules or its prohibition on amending rules by reference. It
merely codifies the Department of State’s requirements for
incorporation by reference; it does not prohibit or prevent DCF’s
compliance with section 120.54’s other rulemaking procedures....
CopyPublished | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 1366
...oner. After receiving DPR's response, the hearing officer entered an order holding that Yolman could not be a party to a section
120.57 hearing because section
120.52(11) states that prisoners may only participate in rule-challenge proceedings under section
120.54(3), (4), (5), or (9) or section
120.56 and may seek judicial review of those proceedings under section
120.68....
...n as a party in a section
120.57 hearing is based on the definition of "party" contained in section
120.52(11), Florida Statutes (1983). This section states in part: Prisoners as defined in s.
944.02(5) may obtain or participate in proceedings under s.
120.54(3), (4), (5), or (9) or s....
...cation of parole. (Emphasis added.) Prior to 1983, the definition of "party" in the Administrative Procedure Act *470 stated that "[p]risoners as defined in s.
944.02(5) shall not be considered parties for the purposes of obtaining proceedings under s.
120.54(16) or s....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 6546, 1992 WL 131895
PER CURIAM. Appellants, prisoners at Florida State Prison, appeal an order of the Department of Corrections, denying their petition under section 120.54(5), Florida Statutes, to amend prison rules governing inmates’ providing of legal assistance to other inmates, and prohibiting an inmate’s possession and distribution of legal documents and materials belonging to another inmate....
CopyPublished | Florida 1st District Court of Appeal | 2002 WL 1457814
...Garcia, Assistant General Counsel, Tallahassee, for Appellee. PER CURIAM. Craig Caldwell, a prisoner within the meaning of section
944.02(6), Florida Statutes (2000), challenges the denial of his petition to initiate rulemaking by the Department of Corrections. Because the department complied with section
120.54(7)(a), Florida Statutes (2000), by denying Caldwell's petition within 30 calendar days with written reasons, we affirm....
CopyPublished | District Court of Appeal of Florida | 1981 Fla. App. LEXIS 20464
ROBERT P. SMITH, Jr., Chief Judge. The Department of Corrections appeals from a DO AH hearing officer’s order invalidating as an illicit rule, because it was not subjected to formal rulemaking processes under Section 120.54, the Department’s program for the manufacture of metal signs by inmates of the correctional system....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: May 14, 2021
...required. The Florida Administrative Procedure Act provides that
any “person regulated by an agency or having substantial interest
in an agency rule may petition an agency to adopt, amend, or
repeal a rule.” Fla. Stat. § 120.54(7)(a)....
CopyPublished | District Court, S.D. Florida
...s for title insurance premiums "not less frequently than once every 3 years” and to revise the existing rates "if the results of the review so warrant.” Moreover, rule making in Florida is governed by the Administrative Procedure Act, Fla. Stat. § 120.54 ....
CopyPublished | Florida 3rd District Court of Appeal | 1983 Fla. App. LEXIS 19947
PER CURIAM. This is an appeal' from the denial by the Department of Health and Rehabilitative Services of a petition to initiate rule-making pursuant to Section 120.54(5), Florida Statutes (1981)....
CopyPublished | Florida 1st District Court of Appeal
...Environmental Control for Assisted Living Facilities, and
59AER17-1, Nursing Home Emergency Power Plan. Petitioners
contend that the findings of immediate danger, necessity, and
procedural fairness on which the rules are based are insufficient
under section 120.54(4), Florida Statutes (2017). The petitions for
review are denied because we find that the agencies have
presented a sufficient factual basis that an immediate danger to
the public health, safety, or welfare existed.
We have jurisdiction pursuant to section 120.54(4)(a)3.,
Florida Statutes....
...We write now to provide this Court’s reasoning.
The petitions are denied because this Court’s review is limited to
inspection of the four corners of the emergency rules, which
sufficiently set forth the immediate danger to the public safety or
welfare the rules were designed to address.
Section 120.54(4)(a) provides an agency with the authority to
adopt an emergency rule if it “finds that an immediate danger to
the public health, safety, or welfare requires emergency action,”
and such rule is “necessitated by the immediate dan...
...1st DCA 1998).
Because the emergency rulemaking procedures do not afford
parties either the full panoply of due process protections or the
protections of economic impact analyses as required by the regular
rulemaking process, the agencies must strictly adhere to the
requirements set forth in section 120.54 when adopting emergency
rules....
...2
were not adopted in strict compliance with the statute). “The
courts generally do not concern themselves with the substantive
validity of the emergency rule. Instead, the concern is whether the
agency followed the requirements of section
120.54(4)(a).” Fla.
Democratic Party v. Hood,
884 So. 2d 1148, 1151 (Fla. 1st DCA
2004) (internal citation omitted).
As stated above, section
120.54(4)(a) requires the agencies to
set forth the reasons, in writing, both for the finding that an
emergency exists and to explain why the procedure utilized to
adopt the rule is fair....
...interest under the emergency procedure.
43 Fla. Admin. Reg. 180 (Sept. 18, 2017)
4
Given the limited nature of our review, we conclude the
reasons given by the agencies are compliant with the standards set
forth in section 120.54(4)....
...1
The agency, however, implemented this generator policy
through emergency rules requiring compliance within 60 days. In
order to guarantee due process for parties effected by the rules,
there are very specific statutory requirements concerning the
contents of an emergency rule. See § 120.54(4), Fla....
... demonstrate that the substantial expenditures required within a
short period of time were “necessitated by [an] immediate danger”
and that the adoption process “was fair under the circumstances,”
which are two of the required elements for a legitimate emergency
rule. See § 120.54(4)(a), Fla....
...See Emergency Rules 58AER17-1(9)-(10)
and 59AER17-1(9)-(10), 43 Fla. Admin. Reg. 180 at 4002-4004
(Sept. 18, 2017).
The agency’s statement explaining its reasons for concluding
the procedure it used was fair under the circumstances, which is
required by section 120.54(4)(a), stated:
The procedure used to adopt this emergency rule is
fair, as the State of Florida is under a declaration of
emergency due to the massive destruction caused by
Hurricane Irma, and it is essential to e...
...Constitution, or the United States Constitution; and
takes only the action necessary to protect the public
interest under the emergency procedure.
43 Fla. Amin. Reg. 180 at 4002, 4004 (Sept. 18, 2017).
ANALYSIS
Section 120.54(4)(a) provides an agency with the authority to
adopt an emergency rule if it “finds that an immediate danger to
the public health, safety, or welfare requires emergency action,”
and such rule is “necessitated by the immediate dan...
...The agency publishes in writing at the time of, or
prior to, its action the specific facts and reasons for
finding an immediate danger to the public health, safety,
or welfare and its reasons for concluding that the
procedure used is fair under the circumstances.
§ 120.54(4)(a), Fla....
...It is not a check on our ability to review the agency’s
determination of fairness.
The majority also correctly states that we generally do not
concern ourselves with the substance of an emergency rule; rather,
our concern is whether the agency followed the requirements of
section
120.54(4)(a). Fla. Democratic Party v. Hood,
884 So. 2d
1148, 1151 (Fla. 1st DCA 2004). Section
120.54(4)(a) requires the
agencies to set forth in writing their reasons for finding that an
emergency exists and that the procedure utilized to adopt the rule
was fair, and on review, we look only to those reasons to determine
the rule’s validity. Hood,
884 So. 2d at 1153.
10
The majority even acknowledges that the agencies must
strictly adhere to the requirements set forth in section
120.54
when adopting emergency rules because the emergency
rulemaking procedures do not afford parties full due process
protections or the protections of economic impact analyses....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 1618, 1986 Fla. App. LEXIS 9105
...of right. 4245 Corp., Mother’s Lounge, Inc. v. Division of Beverage,
348 So.2d 934 (Fla. 1st DCA 1977). The goal of Chapter 120 proceedings is the generation of a record and final action based thereon. For example, a petition for rulemaking under Section
120.54(5) requires an agency to provide “a written statement of its reasons” for the denial of a petition; a petition for declaratory statement pursuant to Sec *433 tion
120.565 requires the agency to “set out [its] opinion as to the ap...
CopyPublished | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 1778, 1985 Fla. App. LEXIS 14507
...or generated does not result in equitable compensation for use of stateowned lands, and is unreasonable, arbitrary, illogical, and irrational. She found that the economic impact statement for proposed Rule 16Q-21.11 is in substantial compliance with section 120.54(2), Florida Statutes, but that it is incomplete insofar as it fails to contain a statement estimating the Rule's effect upon competition in the marina industry....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 1753, 1987 Fla. App. LEXIS 9449
...tempts to do so is arbitrary and capricious. Id.; Grove Isle, Ltd. v. State, Department of Environmental Regulation,
454 So.2d 571 (Fla. 1st DCA 1984). The hearing officer is also correct in her conclusion that the proposed rule does not comply with §
120.54 Fla.Stat....
...because it fails to give notice of the agency’s intended action. HRS has acknowledged that it plans to substantially amend the proposed rule to conform with its true purpose of licensing only the child care programs of nonreligious nonpublic schools. In further contravention of § 120.54, the legal authority cited by the proposed rule provides neither specific nor implied rulemaking authority to HRS with regard to the rule in question....
CopyPublished | Florida 1st District Court of Appeal
...A
Rulemaking Authority
We begin by discussing a state agency’s authority to adopt
rules to manage its duties. An administrative agency created by
the Legislature has no inherent authority to adopt rules. See
§ 120.54(1)(e), Fla....
...Under the trial court’s interpretation, the 2011 amendments to
section
790.33(1) took nothing back from administrative agencies.
5 The enabling statute relied upon here is section
943.03(4),
Florida Statutes, which empowers FDLE to “adopt rules pursuant
to ss.
120.536(1) and
120.54 to implement the provisions of law
conferring powers or duties upon it.”
11
Indeed, under the trial court’s interpretation, it is hard to see what
impact the 2011 amendments had on state agencies at all...
CopyAgo (Fla. Att'y Gen. 1991).
Published | Florida Attorney General Reports
...Among the matters which the planning agency must consider is the extent to which: The development complies with such other criteria for determining regional impact as the regional planning agency deems appropriate, . . . provided such criteria and related policies have been adopted by the regional planning agency pursuant to s. 120.54 . 23 Section 120.54 , F.S., provides adoption procedures for administrative rule-making....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 229, 1987 Fla. App. LEXIS 6210
WENTWORTH, Judge. Appellants seek review of an administrative order entered in a section 120.54(4), Florida Statutes, rule challenge proceeding....
...Although suggesting at one point that Manaso-ta was essentially seeking to initiate rule making, and characterizing this activity as beyond his jurisdiction, the hearing officer nevertheless considered and addressed the merits of Manaso-ta’s petition as a rule challenge pursuant to section 120.54(4), Florida Statutes.
CopyPublished | Florida 1st District Court of Appeal | 1993 Fla. App. LEXIS 160
ALLEN, Judge. The appellants are prison inmates appealing an agency order entered in a proceeding upon a petition under section
120.54(4), Florida Statutes, and section
120.56, Florida Statutes....
...These appeals were pending on July 1, 1992, when section
120.52(12)(d), Florida Statutes (Supp.1992), became effective. As amended by chapter 92-166, section 9, Laws of Florida, this enactment no longer authorizes prisoners to obtain or participate in section
120.54(4) or section
120.56 proceedings, or to seek judicial review under section
120.68, Florida Statutes, with regard to such agency action....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 165, 1999 WL 10018
BENTON, J. These appeals are taken from a final order which brought to a close proceedings instituted to determine whether “Commission audit procedures” amount to unpromulgated rules in violation of section 120.54(1), Florida Statutes (1997)....
...accordance with the Administrative Procedure Act, and are not authorized by law in their current form. Petitioners seek an administrative determination that the PSC’s continuing use of and reliance upon the Challenged Statements is in violation of Section 120.54(l)(a), F.S....
...e statement or a description of the statement and shall state with particularity facts sufficient to show that the statement constitutes a rule under s.
120.52 and that the agency has not adopted the statement by the rulemaking procedure provided by s.
120.54....
CopyPublished | Florida 1st District Court of Appeal | 1979 Fla. App. LEXIS 14168
...t to §
120.56, Fla. Stat. (1977). Respondents contend that the Department has adopted an illicit rule on the ground that it is an invalid exercise of delegated legislative authority. The Department answers that respondents, having participated in a §
120.54(3) hearing on the proposed rule chapter, and later having requested a draw-out under §
120.54(16), which HRS granted, but from which respondents later withdrew, are now precluded from collaterally attacking the rule-making proceedings under §
120.56, and rely upon State Dept....
...Mitchell,
346 So.2d 562 (Fla. 1st DCA 1977); it is “final agency action” and “reviewable in the same way as orders entered in Section
120.57 proceedings, . .” State Dept. of Health, etc. v. Barr, supra, at 505. A rule-making proceeding, authorized by §
120.54(3), on the other hand, allows “affected persons an opportunity to present evidence and argument on all issues under consideration appropriate to inform [the agency] of their contentions.” As we stated in Balino v. Dept. of Health and Rehabilitative, etc.,
362 So.2d 21, 24 (Fla. 1st DCA 1978), the purpose of a rule-making hearing under §
120.54(3) is two-fold: (1) To allow the agency to inform itself of matters bearing on the proposed rules or modifications thereof, and (2) To allow the public, and specifically individuals and groups having particular interests and/or information, to participate in the rule-making process. The hearing is of a quasi-legislative, information-gathering type, which in theory at least, does not adjudicate the rights of any particular individual, (e.s.) (footnotes omitted.) The Balino opinion continued that the hearing afforded by §
120.54(3) is not an adversary proceeding and that the agency has no right to protect itself from evidence or argument which may be unfavorable. Id. We conclude that respondents’ participation in §
120.54(3) rule-making has no res judicata effect on their right to collaterally attack the rule by a §
120.56 petition. Nor does the fact that respondents filed a request for a draw-out, permitted by § 120.-54(16) — later withdrawn before the draw-out proceedings were conducted — preclude them now from the relief they seek. Section
120.54(16) permits the agency, if it determines a rule-making hearing is not adequate to protect the substantial interests of a person, to suspend rule-making and convene a separate proceeding under the provisions of §
120.57....
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 483348, 2014 Fla. App. LEXIS 1741
...le’ barrel match racing” as an authorized form of quarter horse racing for purposes of issuing permits and licenses under chapter 550, Florida Statutes, is a “rule” that has not been adopted pursuant to the rulemaking process in violation of section 120.54(l)(a), Florida Statutes....
...equally true whether the policy is highly controversial or widely praised. To be legal and enforceable, a policy which operates as *1120 law must be formally adopted in public, through the transparent process of the rulemaking procedure set forth in section 120.54....
...In sum, the Division’s policy of licensing the conduct of pari-mutu-el wagering on [barrel match racing], on the ground that [barrel match racing] is legally equivalent to quarter horse racing, constitutes an unadopted rule. As such, it violates section 120.54(l)(a)....
...der and recently initiated rulemaking on matters related to the policy at issue in this case. . An unadopted rule is "an agency statement that meets the definition of the term ‘rule,’ but that has not been adopted pursuant to the requirements of s.
120.54.” §
120.52(20), Fla. Stat.; see also §
120.54(l)(a), Fla....
CopyPublished | Supreme Court of Florida | 30 Fla. L. Weekly Supp. 84, 2005 Fla. LEXIS 154, 2005 WL 242690
...rs placed on the record after an ex parte communication; the written decision of the administrative law judge presiding at the final hearing; and the official transcript of the final hearing. (E)In an appeal from a rule adoption pursuant to sections
120.54 (rule adoption) and
120.68(9), Florida Statutes, in which the sole issue presented by the petition is the constitutionality of a rule and there are no disputed issues of fact, the record shall consist only of those documents from the rulemakin...
...The agency’s rulemaking record consists of all notices given for the proposed rule; any statement of estimated regulatory costs for the rule; a written summary of hearings on the proposed rule; the written comments and responses to written comments as required by sections 120.54 (rule adoption) and 120.541, Florida Statutes (statement of estimated regulatory costs); all notices and findings made pursuant to section 120.54(4), Florida Statutes (adoption of emergency rules); all materials filed by the agency with the Administrative Procedures Committee pursuant to section 120.54(3), Florida Statutes (rule adoption procedure); all materials filed with the Department of State pursuant to section 120.54(3), Florida Statutes (rule adoption procedure); and all written inquiries from standing committees of the legislature concerning the rule....
...Subdivision (c)(2)(C) addresses the record on appeal from declaratory statement requests pursuant to section
120.565, while *231 subdivision (c)(2)(D) lists the provisions of section
120.574(2)(d), Florida Statutes. Subdivision (c)(2)(E) of the rule addresses proceedings governed by sections
120.54 and
120.68(9), Florida Statutes. The definition of the rulemaking record tracks language in section
120.54(8), Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal | 1983 Fla. App. LEXIS 18583
...Florida Parole and Probation Commission,
674 F.2d 847, 848 (11th Cir.1982); Staton v. Wainwright,
665 F.2d 686, 688 (5th Cir.1982), cert. denied,
456 U.S. 909 ,
102 S.Ct. 1757 ,
72 L.Ed.2d 166 (1982). Moreover, there has been no violation of the notice requirements of Section
120.54(l)(a), Florida Statutes (1981)....
CopyPublished | Florida 5th District Court of Appeal | 2017 WL 729535, 2017 Fla. App. LEXIS 2526
...Madison Highlands challenges these determinations. We review an agency’s conclusions of law de novo. Parlato v. Secret Oaks Owners' Ass’n,
793 So.2d 1158, 1162 (Fla. 1st DCA 2001). We agree with the FHFC that the second amended petition was untimely. Section .
120.54(5), Florida Statutes (2016), requires the Administration Commission to adopt uniform rules of procedure to replace the multiple rules in the administrative code promulgated by the various agencies....
...mail, it “shall be accepted on the date transmit ted.” Such a rule cannot serve as an exception to the Uniform Rules because the Administration Commission has not approved it as an exception to the time deadline set forth in rule 28-106.104(3). §
120.54(5)(a), Fla. Stat. (2016) (providing that Uniform Rules apply unless Administration Commission specifically grants exception to agency); see Dep’t of Corr. v. Saulter,
742 So.2d 368, 369-70 (Fla. 1st DCA 1999) (characterizing effect of section
120.54(5)(a) as “legislative repeal” of agency .procedural rules in conflict with Uniform Rules)....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 1639, 1998 WL 69097
...adopt a rule defining the methodology for reimbursement of managed care plans. 1 This argument was rejected by the agency but on January 2, 1998, approximately one week before the oral argument in this appeal, the agency initiated a proceeding under section 120.54(2), Florida Statutes (Supp....
...coincidence that the proposed rule development was initiated shortly prior to the date of oral argument. Further, we understand appellant’s complaint with the agency’s delay in initiating the rulemaking required by section 409.9124. According to section 120.54(l)(b), Florida Statutes (Supp.1996), 2 the agency was required to draft and formally propose a rule within 180 days' of....
...cy abandon the present rulemaking proceeding. BOOTH, VAN NORTWICK and PADOVANO, JJ., concur. . Section 409.9124(1), Florida Statutes (1996), provides: (1) The agency shall develop and adopt by rule a methodology for reimbursing managed care plans. . Section 120.54(l)(b), Florida Statutes (Supp....
CopyPublished | Florida 5th District Court of Appeal
...Madison Highlands challenges these determinations.
We review an agency’s conclusions of law de novo. Parlato v. Secret Oaks
Owners Ass’n,
793 So. 2d 1158, 1162 (Fla. 1st DCA 2001). We agree with the FHFC
that the second amended petition was untimely. Section
120.54(5), Florida Statutes
(2016), requires the Administration Commission to adopt uniform rules of procedure to
replace the multiple rules in the administrative code promulgated by the various agencies.
See Fla....
...ail, it “shall be
accepted on the date transmitted.” Such a rule cannot serve as an exception to the
Uniform Rules because the Administration Commission has not approved it as an
exception to the time deadline set forth in rule 28-106.104(3). § 120.54(5)(a), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2004 Fla. App. LEXIS 1833, 2004 WL 314918
PER CURIAM. Reversed and remanded for petitioner to file an amended petition for hearing in compliance with section 120.54(5)(b)4., Florida Statutes, and Rule 28-106.201, Florida Administrative Code....
CopyPublished | Florida 1st District Court of Appeal | 2004 Fla. App. LEXIS 1798, 2004 WL 305740
PER CURIAM. Reversed and remanded for petitioner to file an amended petition for hearing in compliance with section 120.54(5)(b)4., Florida Statutes, and Rule 28-106.201, Florida Administrative Code....
CopyPublished | Florida 1st District Court of Appeal | 2004 Fla. App. LEXIS 1805, 2004 WL 305735
PER CURIAM. Reversed and remanded for petitioner to file an amended petition for hearing in compliance with section 120.54(5)(b)4., Florida Statutes, and Rule 28-106.201, Florida Administrative Code....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 1234, 1991 WL 17928
...to include *623 “persons who are members of the American Indian tribes recognized by the U.S. Bureau of Indian Affairs, Eskimos, Aleuts, or Native Hawaiians.” The appellant timely filed a petition to challenge the proposed amendment pursuant to Section 120.54, Florida Statutes, because the Alabama Ma-chis Tribe is not recognized by the Bureau of Indian Affairs....
...The appellant argues the changes between the properly noticed rule and the enacted rule were substantive and not merely technical, and in essence constituted a new rule. Thus, appellant contends, the Department should have initiated rule adoption procedures prior to the rule’s enactment. Section 120.54(13)(b), Florida Statutes (1989), states in pertinent part: (b) After the notice required in subsection (1) and prior to adoption, the agency may withdraw the rule in whole or in part or may make such changes in the rule as are supporte...
...record of the proceeding, or changes in response to a proposed objection by the committee. Dispositive of this issue is the fact that the appellant recognized in its response to this court’s order to show cause filed prior to the dismissal of its Section 120.54 proceeding that the change in the language between the proposed amendment and the enacted amendment was a result of testimony presented at the public hearing prior to the rule’s adoption....
CopyPublished | Supreme Court of Florida
... contain[ed] a ‘butterfly needle.’ ” State v. Kozel, 889 N.W.2d 423, 428 (Wis.
2017). Therefore, Goodman’s argument regarding a DUI kit requirement is self-
defeating. Because the statutory process for amending or promulgating a Rule is
difficult, see § 120.54, Fla....
CopyPublished | Florida 1st District Court of Appeal | 2015 WL 9584834
...which would require a response
of such a general and consistent nature as to meet the
definition of a rule, the agency should either decline to
issue the statement or comply with the provisions of
Section 120.54 governing rulemaking.
567 So....
...broader application than to the petitioner. But, if the statement has such a broad and
general application that it meets the definition of a rule, the agency must also
simultaneously initiate the rulemaking process to adopt the statement as a rule. See
§ 120.54(1)(a), Fla....
...11
issuing the declaratory statement in this case. Indeed, if SCMHR was of the view
that the issue raised in its petition could only be addressed by rulemaking, it should
have petitioned for rulemaking under section
120.54(7) instead of a declaratory
statement under section
120.565....
CopyPublished | Florida 3rd District Court of Appeal
...2d 175, 177
(Fla. 5th DCA 1998) (applying Sierra Club,
405 U.S. at 740).
Importantly, the concept of standing for purposes of challenging proposed
agency rule is broader than the traditional notion of standing to maintain a cause of
action. Indeed, “section
120.54(4) ‘was intended to create an opportunity for a
citizen initiated check on rule making that exceeded delegated statutory authority....
CopyPublished | Florida 3rd District Court of Appeal
...Goodenow, Sr., for appellant.
Ashley Moody, Attorney General, and Toni C. Bernstein (Tallahassee),
Senior Assistant Attorney General, for appellee Department of Revenue.
Before EMAS, C.J., and LOGUE and MILLER, JJ.
PER CURIAM.
Affirmed. See §
409.2563, Fla. Stat. (2020); §
120.54(5)(a), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2006 Fla. App. LEXIS 21472, 2006 WL 3751504
...We reverse and remand the denial of Prater’s petition for writ of mandamus. Contrary to the trial court’s order, prisoners may petition to initiate rulemaking under the Administrative Procedure Act. See §
120.81(3), Fla. Stat. (2005) (explaining that prisoners may petition to initiate rule-making pursuant to section
120.54(7))....
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 16992
...ge. DOT appeals an administrative order invalidating Fla.Admin.Code Rule 14-10.06 on the grounds that the proposed rule was not filed with the Department of State within 45 days after publication in the Florida Administrative Weekly, in violation of Section
120.54(ll)(b), Fla.Stat. (Supp.1976). DOT argues here, as it did before the hearing officer, that violations of the time frames provided for in Section
120.54 do not require invalidation unless the agency’s action impairs the fairness of the proceeding or the correctness of the action, relying on Section
120.68(8), Fla.Stat. (Supp.1976). Appellee argued to the hearing officer, and now here, that the mandatory language of Section
120.54(ll)(b) requires invalidation of the rule if there is not strict compliance with the time frames....
CopyPublished | Florida 1st District Court of Appeal | 1995 Fla. App. LEXIS 12945
...460.406(l)(e), Fla.Stat., that a chiropractic college be accredited by an agency recognized and approved by the USDOE and COPA, to add a requirement that accreditation be both regional and professional. 1 Sherman College filed petitions pursuant to section
120.54(4) and section
120.56(1), Florida Statutes (1993), challenging the validity of the rule amendments....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 2777, 1985 Fla. App. LEXIS 6093
...statutory authority for a rule “making non-payment of a fine a separate ground for further administrative discipline.” Finally, the hearing officer cited Gulfstream Park v. Department of Business Regulation,
443 So.2d 113 (Fla. 3d DCA 1983), and Section
120.54(14), Florida Statutes, for the proposition that an administrative agency has only such authority as conferred by statute, lacking inherent authority to promulgate rules, and the Board lacked statutory authority for promulgating the last sentence of Rule 21E-12.08....
CopyPublished | Florida 1st District Court of Appeal | 1982 Fla. App. LEXIS 21915
1st DCA 1978) (violation of requirement of section
120.54(1 l)(b), Florida Statutes, that a proposed
CopyPublished | Florida 1st District Court of Appeal | 1992 Fla. App. LEXIS 12801, 1992 WL 379420
PER CURIAM. This is an appeal and cross-appeal from a final order of the hearing officer in rule-making proceedings held pursuant to section 120.54, Florida Statutes (1991). The order constitutes “final agency action” under section 120.54(4)(d)....
CopyAgo (Fla. Att'y Gen. 2009).
Published | Florida Attorney General Reports
...Randolph, dated November 24, 1997, and Ops. Att'y Gen. Fla. 01-66 (2001), 03-41 (2003), and 08-65 (2008). 12 See, e.g. , Ops. Att'y Gen. Fla. 83-100 (1983), 89-39 (1989), and 01-66 (2001). 13 See n. 8, supra . 14 See Op. Att'y Gen. Fla. 98-28 (1998), recognizing that the authorization in s. 120.54 (5)(b)2., Fla. Stat., for the use of communications media technology to conduct meetings applied only to state agencies. 15 Webster's New Universal Unabridged Dictionary p. 1588 (2003). 16 Black's Law Dictionary p. 1284 (8th ed., 2004). 17 Section 120.54 (5)(b)2., Fla....
CopyAgo (Fla. Att'y Gen. 2002).
Published | Florida Attorney General Reports
...public meetings, hearings, and workshops, in person and by means of communications media technology. 1 Although school boards are agencies for purposes of Chapter 120 , Florida Statutes, they are not "state agencies" and may not rely on the terms of section 120.54 (5)(b)2., Florida Statutes, for authority to conduct meetings by means of communications media technology....
...mittee may participate and vote on board matters by electronic means if they are unable to attend as long as a quorum of the members of the board is physically present at the meeting site. Sincerely, Richard E. Doran Attorney General RED/twd 1 See , s. 120.54 (5)(b)2., Fla....
CopyPublished | Florida 1st District Court of Appeal | 1979 Fla. App. LEXIS 15414, 5 Media L. Rep. (BNA) 1861
ROBERT P. SMITH, Jr., Acting Chief Judge. *308 Two newspaper publishers appeal, contesting the Department of Corrections’ Emergency Rule 33ER79-2, adopted July 16,1979. Sections 120.54(9)(a), .68(1), Florida Statutes (1978 Supp.)....
...The access claimed by appellants is that which is afforded by the Department’s permanent Rule 33-15.02(l)(c), and their contention is simply that the Department’s justification statement for the emergency suspension of the permanent rule is insufficient under Section 120.54(9)(a), Florida Statutes (1978 Supp.)....
...s justification statement which so emphasizes the dangers of handling substantial numbers of prisoners. In emergency rulemaking, especially that emergency rulemaking which effectively cancels rule policy previously adopted after open public debate, Section 120.54(1), an agency is confined to measures which are demonstrably necessary to alleviate the emergency described in its justification statement. Section 120.54(9)(a)2 authorizes emergency rulemaking, provided: The agency takes only that action necessary to protect the public interest under the emergency procedure....
...r 9, 1979. We do not prohibit further emergency rulemak-ing based on new and substantially different emergency conditions. The Department remains at liberty, as it has been since June 11 and before, to begin “normal rule-making procedures” under Section 120.54....
...Every effort is made to accommodate as many such interviews as possible each [sic]. Adequate alternative means of communication are available. . . . . Postal Colony Co., Inc. v. Askew,
348 So.2d 338 (Fla. 1st DCA 1977); Times Pub. Cd. v. Florida Dept. of Corrections, supra; Section
120.54(9)(a)3, Florida Statutes (1978 Supp.): The agency’s findings of immediate- danger, necessity, and procedural fairnesS-.shall be judicially reviewable....
...In emergency rulemaking an agency may act “by any procedure which is fair under the circumstances and necessary to protect the public interest,” provided it affords “at least the procedural protection given by other statutes” and by the United States and Florida Constitutions. Section 120.54(9)(a)l. The agency’s justification statement must state “its reasons for concluding that the procedure used is fair under the circumstances.” Section 120.54(9)(a)3....
...See Gadsden State Bank v. Lewis,
348 So.2d 343, 346 (Fla. 1st DCA 1977); “We are unimpressed by the Department’s argument that, because it declined to conduct a formal hearing, there was no occasion for Gadsden to properly ‘appear’ and thus become a party . . . . Section
120.54(9)(c), Florida Statutes (1977): An emergency rule adopted under this subsection may not be effective for a period longer than 90 days and shall not be renewable....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 1873, 1988 Fla. App. LEXIS 3505, 1988 WL 81574
...” or in response to written material received within 21 days of notice and made a part of the record, was not a merely technical change or a response to the proposed amendments “in the way of an objection by the APA committee” as authorized by section 120.54(13)(b), and was therefore required to be noticed as a substantive change....
CopyPublished | District Court of Appeal of Florida | 161 L.R.R.M. (BNA) 3183, 1999 Fla. App. LEXIS 10581, 1999 WL 569617
...were per se authorized representatives, and did not require additional qualification, while any other person who desired to be a representative did have to satisfy the criteria insuring competence in rule 28-5.1055. In 1996, the legislature enacted section 120.54(5), Florida Statutes (Supp.1996), which required the Administration Commission to adopt uniform rules of procedure to replace the multiple duplicative rules in the administrative code promulgated by the various agencies....
CopyPublished | Supreme Court of Florida | 27 Fla. L. Weekly Supp. 730, 2002 Fla. LEXIS 1810, 2002 WL 1981372
...s placed on the record after an ex parte communication; the written decision of the administrative law judge presiding at the final hearing; and the official transcript of the final hearing. (E) In an appeal from a rule adoption pursuant to sections
120.54 (rule adoption) and
120.68(9), Florida Statutes, in which the sole issue presented by the petition is the constitutionality of a rule and there are no disputed issues of fact, the record shall consist only of those documents from the rulemakin...
...The agency’s rulemaking record consists of all notices given for the proposed rule; any statement of estimated regulatory costs for the rule; a written summary of hearings on the proposed rule; the written comments and responses to written comments as required by sections 120.54 (rule adoption) and 120.541, Florida Statutes (statement of estimated regulatory costs); all notices and findings made pursuant to section 120.54(4), Florida Statutes (adoption of emergency rules); all materials filed by the agency with the Administrative Procedures Committee pursuant to section 120.54(3), Florida Statutes (rule adoption procedure); all materials filed with the Department of State pursuant to section 120.54(3), Florida Statutes (rule adoption procedure); and all written inquiries from standing committees of the legislature concerning the rule....
...Subdivision (c)(2)(C) addresses the record on appeal from declaratory statement requests pursuant to section
120.565, while subdivision (c)(2)(D) lists the provisions of section
120.574(2)(d), Florida Statutes. Subdivision (c)(2)(E) of the rule addresses proceedings governed by sections
120.54 and
120.68(9), Florida Statutes. The definition of the rulemaking record tracks language in section
120.54(8), Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal
...SHIVERS, Judge. Appellant, Department of Corrections, appeals two final orders of the Division of Administrative Hearings holding certain portions of Union Correctional Institution's Operating Procedure No. 81-6 to be invalid rules, not promulgated pursuant to section 120.54, Florida Statutes....
...The IOP approves coupon books as the only medium of exchange for UCI inmates and declares all currency, coins, or other negotiable instruments in an inmate's possession to be contraband. The IOP was not adopted as a rule pursuant to the procedures outlined in section 120.54, Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal
...the June 1992 version of the rules and had properly considered the economic impact of the October 1992 amendments, and that it had not violated section
120.52(8)(a), nor "materially failed to follow the applicable rulemaking procedures set forth in Section
120.54." The hearing officer's findings, that annuities are commonly viewed as investment products rather than insurance, and that national banks are authorized to sell annuities pursuant to federal law, are supported by competent substantial evidence....
CopyPublished | Florida 1st District Court of Appeal | 2006 Fla. App. LEXIS 13593, 2006 WL 2345542
...pursuant to section
120.52(8)(a), Florida Statutes (2004), because they failed to follow applicable rulemaking procedures. Specifically, the Administrative Law Judge found the Financial Services Commission failed to fulfill its statutory duty under section
120.54(3)(a), Florida Statutes, as "agency head," to approve the proposed rules prior to their publication in the Florida Administrative Law Weekly. We affirm. Section
20.121(3)(c), Florida Statutes, provides that the Commission is the "agency head" of the Department of Financial Services for purposes of rulemaking. The agency head is required by section
120.54(3)(a) to approve proposed rules prior to their publication in the Florida Law Weekly....
CopyPublished | Florida 1st District Court of Appeal | 2000 Fla. App. LEXIS 10646, 2000 WL 1134467
PER CURIAM. Petitioners challenge emergency rule 64BER00-1, which imposes a moratorium on Level III office surgery. We have jurisdiction. §§
120.54(4)(a)3.;
120.68(1); Fla. R.App. 9.100(a). We find that the emergency rule complies with section
120.54(4), Florida Statutes....
CopyPublished | Florida 3rd District Court of Appeal
...e. Gluteal fat grafting
involves the transfer of fat from one part of the body to another for cosmetic
purposes. It is used, for example, in the procedure popularly known as a
“Brazilian Butt Lift.”
Emergency rules are authorized under section 120.54(4), Florida
Statutes, and are required to contain “the specific facts and reasons for
finding an immediate danger to the public health, safety, or welfare and [the
agency’s] reasons for concluding that the procedure used is fair...
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 8482, 1995 WL 469647
WENTWORTH, Senior Judge. This is an appeal by Florida Nutrition Counselors Association (FNCA) from a final order of a hearing officer entered after evi-dentiary hearing on a rule challenge under section 120.54, Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal | 2007 Fla. App. LEXIS 5185, 2007 WL 1037582
...proposed findings of facts and orders.... ”). As a result *727 of the premature dismissal, the ALJ failed to consider Myers’ argument that policy F-24 is a de facto agency rule that has not been adopted under the proper rulemaking procedures of section 120.54(l)(a)....
CopyAgo (Fla. Att'y Gen. 1976).
Published | Florida Attorney General Reports
Procedure Act. See ss.
120.50 and120.54(14). Section
120.54, F. S., sets forth the procedures to be followed
CopyAgo (Fla. Att'y Gen. 1998).
Published | Florida Attorney General Reports
participate in board meetings via electronic means. Section
120.54(5)(b)2., Florida Statutes, allowing public
CopyPublished | Florida 3rd District Court of Appeal
...of Internal Improvement Tr.
Fund,
195 So. 3d 1149, 1153 (Fla. 1st DCA 2016) (quotations omitted).
“Dismissal of such a petition is reviewable de novo.” Id.
Grace contends its letter substantially complied with rule 28-
106.201(2) of the Florida Administrative Code and section
120.54(5)(b)(4),
Florida Statutes (2023), hence dismissal was improper....
...facts relate to the specific rules or statutes; and
(g) A statement of the relief sought by the petitioner, stating
precisely the action petitioner wishes the agency to take with
respect to the agency’s proposed action.
Fla. Admin. Code R. 28-106.201(2); see also § 120.54(5)(b)(4), Fla....
...cy that we do not consider
4
dispositive. Although McIntyre did not directly ask for a hearing, he did raise
issues of disputed facts and his letter was sufficient to meet the minimum
requirements listed in section 120.54(5)(b) 4 for a hearing request.”).
Here, Grace identified the Department and case number, included its
counsel’s contact information, noted historical compliance over the past
thirteen years and financial hardship risk, den...
CopyPublished | Florida 1st District Court of Appeal
...1st DCA 2018).
Section
120.56(4), Florida Statutes (2023), authorizes a
challenge to an agency statement that qualifies as an unadopted
rule. An “unadopted rule” is “an agency statement that meets the
definition of the term ‘rule,’ but that has not been adopted
pursuant to the requirements of [section
120.54, Florida
Statutes].” §
120.52(20), Fla....
...interprets, or prescribes law or policy or describes the procedure or
practice requirements of an agency . . . .” §
120.52(16), Fla. Stat.
(2023). “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.” §
120.56(4)(e), Fla....
...manner that does not restrict the authority clearly given to DOH
by the legislature, the challenged statements reiterate what is
readily apparent from the applicable law. Therefore, the ALJ erred
in concluding that those statements represent an unadopted rule
that violates section 120.54(1)(a).
REVERSED and REMANDED.
OSTERHAUS, C.J., and RAY and M.K....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 3852, 1991 WL 65354
...ch the road closing will be considered, and to afford all interested citizens a reasonable opportunity to participate and be heard. The process required to abandon or close a public road under those sections is similar in purpose to rulemaking under section 120.54 of the Florida Administrative Procedures Act....
CopyPublished | Florida 1st District Court of Appeal
...y has not cross-appealed these findings, it is bound by them, and as such, the Agency's MTA methodology is a rule that the Agency must adopt through rulemaking. It is well established Florida law that rulemaking is not a matter of agency discretion. § 120.54(1), Fla....
CopyPublished | Florida 1st District Court of Appeal
...y has not cross-appealed these findings, it is bound by them, and as such, the Agency's MTA methodology is a rule that the Agency must adopt through rulemaking. It is well established Florida law that rulemaking is not a matter of agency discretion. § 120.54(1), Fla....
CopyPublished | Florida 1st District Court of Appeal
...“rule.” As the Agency has not cross-appealed these findings, it is
bound by them, and as such, the Agency’s MTA methodology is a
rule that the Agency must adopt through rulemaking. It is well
established Florida law that rulemaking is not a matter of agency
discretion. § 120.54(1), Fla....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 2790, 1990 WL 48656
...It is also clear that the standard of review to be applied by the District Court in direct appeals from rule-making proceedings is different from the standard used in an appeal from a hearing officer’s determination arising out of a rule challenge proceeding pursuant to section
120.54(4) or
120.56, Florida Statutes....
...plies of interested parties to the agency’s proposals and to all the materials considered by the agency; and (3) the final rule accompanied by a statement both justifying the rule and explaining its normative and empirical predicates. See sections
120.54(3)(a), (6), and (ll)(a), Fla.Stat.; section
120.68(5)(b), Fla.Stat....
...ng out the history of the rule amendment and, again, a summary of the amended rule. Nowhere in the record, however, is there a “detailed written statement of the facts and circumstances justifying the rule,” as the adopting agency is required by section 120.54(ll)(b), Florida Statutes, to file with the Secretary of State....
...enders the rule filing with the Secretary of State legally insufficient. Therefore, pursuant to section
120.68(12)(d), we find it necessary to hold DER’s amendment to rule 17-4.-245(8)(b) as filed invalid and ineffective for failure to comply with section
120.54(ll)(b), and remand to DER with directions to fully comply with the requirements in that section and to develop a more detailed record in accordance with the opinion in Adam Smith, supra....
CopyPublished | Florida 1st District Court of Appeal | 2017 WL 1325869, 2017 Fla. App. LEXIS 4952
...The Board’s legislative authority to enact and
amend the rule is granted by sections
456.057(17) and
458.309, Florida Statutes.
Starting with the first notice published in the Florida Administrative Register
on October 30, 2012, the Board conducted rulemaking proceedings pursuant to
section
120.54, Florida Statutes....
...On March 4, 2015, at the tenth public hearing, the
Board determined that the amendment would increase regulatory costs to such an
extent that a revised statement of estimated regulatory costs (SERC) was necessary
and that in order for the amendment to take effect legislative ratification was
required. See § 120.541(2)-(3), Fla....
...Thereafter, the Board submitted the proposed amendment to the President of
3
the Senate and Speaker of the House of Representatives with a request for
legislative ratification during the 2016 legislative session. See § 120.541(3), Fla.
Stat. The Board also filed the rule amendment with the Department of State for
adoption, pursuant to section 120.54(3)(e), Florida Statutes. Pursuant to section
120.541(3), however, even though adopted, the amendment to rule 64B8-10.003
could not “take effect until it is ratified by the Legislature.”
The rule amendment was not ratified during the 2016 legislative session, but
the Board has not taken any action to withdraw the amendment to date.
Accordingly, the amendment is currently adopted, but not effective. See §§
120.54(3)(d)3., Fla. Stat. (governing modification and withdrawal of rules at
various procedural stages); 120.54(3)(e)5.-6., Fla....
...“adopted” and when “effective.”).
We first address the status of the adopted amendment to the rule and whether
the amendment and therefore this appeal of the ALJ’s order is moot due to the lack
of legislative ratification of the amendment as required by section 120.541(3),
Florida Statutes (2016)....
...The failure of the Legislature to take up the Board’s request for ratification
of the amended rule upon its submission to the President of the Senate and Speaker
of the House does not preclude ratification in future legislative sessions. Although
section 120.541(3) is a fairly recent statute — adopted in 2010 — renewals of
other rule ratification requests which carried over to successive years’ legislative
sessions have already occurred....
...Rubottom,
Legislative Rule Ratification: Lessons from the First Four Years, 89 Fla. Bar J. 36,
40 (February 2015). For instance, a Department of Financial Services rule
adopting a workers’ compensation provider reimbursement manual was first
submitted for legislative ratification under section 120.541(3) in the 2012 session,
but was not considered by the Legislature during that session....
...2012 did not “kill” the proposed rule amendment and end the Department’s ability
to renew the request for ratification in subsequent sessions.
The Board is also not required to withdraw the proposed rule due to the lack
of ratification to date. Section 120.54(3)(d), Florida Statutes, addresses
modification and withdrawal of proposed rules. For a rule that is adopted but not
ratified, the Board has the option of withdrawing the rule but is not required to do
so. § 120.54(3)(d)3.c., Fla....
...during which it was submitted. There are
statutory deadlines for submission of a rule to the President of the Senate and
Speaker of the House for ratification, but no deadline for the Legislature to act
upon a rule submitted for ratification. See § 120.541(3), Fla....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 3801, 1991 WL 54138
PER CURIAM. The appellants, corporate entities who operate retail optical establishments and provide opticianry services, filed a Section 120.54(4), Florida Statutes, rule challenge *377 to determine the invalidity of a proposed rule promulgated by the Department of Professional Regulation, Board of Optician-ry (Board)....
...are either cost prohibitive or impermissible under existing leases. Additionally, the proposed rule will prevent any physician, optometrist or optician from serving as a sponsor unless that professional “actually dispenses eyewear.” Pursuant to Section 120.54(4), Florida Statutes (1989), any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that it is an invalid exercise of delegated legislative authority....
...agency; or the rule is arbitrary or capricious. According to Adam Smith Enterprises, Inc. v. State, Department of Environmental Regulation,
553 So.2d 1260 (Fla. 1st DCA 1989): [W]hen reviewing a hearing officer’s determination arising out of ... a Section
120.54(4) ......
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 15397
...ding the broker’s and salesmen’s registrations of petitioners. Because the statute provides the suspension shall only be effective for a period of ninety days, and that period has now expired, we determine the petition and suggestion to be moot. Section 120.54(8)(c), Florida Statutes (1975)....
