Florida/Georgia Personal Injury & Workers Compensation

...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....

...First, Panda filed its motion for a continuance two days before the hearing, thereby violating the five-day requirement of rule 28-106.210. Second, in order to obtain a continuance, Panda had to procure a waiver from the PSC's rule implementing the statutory deadlines for need proceedings. See § 120.542(2), (5), Fla. Stat. (2000); Fla. Admin. Code R. 28-104.002. Under section 120.542(2), the PSC shall grant a waiver when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness....

...(the Board) dismissed a petition requesting a variance from and waiver of the provisions of certain administrative rules. We conclude that the Board was entitled to dismiss the petition without an evidentiary hearing, upon the determination that the section 120.542, Florida Statutes, variance and waiver process does not apply to the disputed rules insofar as they involve the exercise of proprietary power....

...r surrounding an unbridged and undeveloped coastal island. These rules impose standards and criteria which would pertain in connection with the construction of a private docking facility on such land. The appellant sought a variance and waiver under section 120.542, which indicates at subsection (1) that in appropriate circumstances agencies are authorized to grant such relief “to persons subject to regulation.” Although the Board sometimes acts as a regulatory agency, it is also vested with the power and duty to manage and control sovereignty lands....

...Edwards, 472 So.2d 803 (Fla. 3d DCA 1985), rev. denied, 482 So.2d 348 (Fla.1986). A request to erect a docking facility on such lands is thus addressed to the Board’s proprietary role, Graham , and is properly so identified by rule 18-21.004(1). The section 120.542(1) limitation of the variance and waiver process to persons subject to regulation is reiterated at subsection (5), and the statute does not refer to proprietary action....

...Interests in such lands may not be conveyed without clear intent and authority, Coastal Petroleum, and statutes adversely impacting the Board’s public trust must be construed very strictly as they would be in derogation of the common law. Graham . Because the variance and waiver process in section 120.542 expressly pertains to regulatory rather than proprietary matters, and the statute should not be construed otherwise, the Board was entitled to dismiss the appellant’s petition....

substantially the following questions: 1. Pursuant to section 120.542, Florida Statutes (1996), is the Marine Fisheries

...Trustees.” State, Bd. of Trustees of the Internal Improvement Trust Fund v. Day Cruise Ass’n, 794 So.2d 696 (Fla. 1st DCA 2001) (Browning, J., concurring). The decision in Mariner Properties is inapposite. Solely at issue there was the scope of section 120.542, Florida Statutes (1997). The court decided “that the section 120.542, Florida Statutes, variance and waiver process does not apply to the disputed rules insofar as they involve the exercise of proprietary power,” Mariner Props. Dev., 743 So.2d at 1122 , rejecting the dissenting view that “any person the rules affect has a right to seek a waiver or variance under section 120.542.” Id....

...abuse. However, it contends that although its program may be considered a licensed service provider pursuant to section 397.311(19), the Department’s licensing requirements are too burdensome. The Department argues, and we agree, that pursuant to section 120.542, Florida Statuteá (1999), if USF finds that certain licensing requirements are too burdensome, it may file a petition with the Department requesting a variance or waiver from the requirement....

...exemptions to the Fencing Rule.6 The Commission asserted that since it cannot 6 The parties’ disagreement regarding whether the Commission possesses legal authority to grant exemptions to the Fencing Rule centers on whether the Commission is bound by section 120.542 of the APA, which concerns variances and waivers, in its enforcement of the Fencing Rule, as well as the proper interpretation of that section if the Commission is bound by it....

...Accordingly, the Commission argues, its action in entering the Final Order was final agency action under the APA. And because the Commission has adopted section 120.68, judicial 8 The parties dispute whether the Commission has adopted and is bound by section 120.542....

See s. 5(2)(mm), Ch. 2001-299, Laws of Fla. Section 120.542, Fla. Stat., recognizes the potential unreasonableness

...��s projection than Walther’s. The ALJ also recommended: The likelihood of continued beach nourishment south of the inlet for the foreseeable future might be appropriate for consideration in- the context of a request for a variance or waiver under Section 120.542, Florida Statutes— A variance or waiver must be pursued through a separate proceeding....

...Here, Beach Group admittedly did not apply for a variance. Had it done so, it could have argued that the 1997 ECL should have been applied or that continued beach restoration would prevent the erosion anticipated by the DEP. The trial court erred in interpreting the governing statute. Section 120.542, Florida Statutes, makes a distinction between “variances ... to statutes,” which are prohibited, and “variances and waivers to requirements of [agency] rules,” which are permitted. § 120.542(1), Fla....

...As explained in footnote 13 to the ALJ’s Recommended Order: The likelihood of continued beach nourishment south of the inlet for the foreseeable future might be appropriate for consideration in the context of a request for a variance or waiver under Section 120.542, Florida Statutes....