[*] Senior Staff Attorney, Joint Administrative Procedures Committee, Florida Legislature. B.A., Florida State University, 1974; J.D., Florida State University, 1977; M.P.A., Florida State University, 1990; M.S.S.I., Defense Intelligence College, 1991. The views expressed herein are solely those of the author and are not intended to reflect the views of the Joint Administrative Procedures Committee or the Florida Legislature. The author would like to thank Professor Johnny Burris and Mr. Greg Krasovsky for their comments on an earlier draft of this Article. Return to text.

[1] See Act effective Oct. 1, 1996, ch. 96-159, 1996 Fla. Laws 147 (codified at FLA. STAT. ch. 120 (Supp. 1996)). Clarifying amendments to the Act were added by chapters 96-320, 96-397, 96-410, and 96-423, Florida Laws. Return to text.

[2] See FLA. STAT. § 120.54(5) (Supp. 1996). Return to text.

[3] See id. § 120.574. Return to text.

[4] See id. § 120.56(2). Return to text.

[5] See id. § 120.573. Return to text.

[6] See id. § 120.54(2). Return to text.

[7] See id. § 120.542. Return to text.

[8] General simplification of the Act closely followed a draft prepared by a working group organized by the Executive Office of the Governor and endorsed by the Executive Council of the Administrative Law Section of the Florida Bar. See Donna E. Blanton & Robert M. Rhodes, Florida's Revised Administrative Procedure Act, FLA. B.J., July/Aug. 1996, at 30. Return to text.

[9] See Administrative Procedure Act, ch. 74-310, 1974 Fla. Laws 952. Return to text.

[10] A discussion of the 1974 attempt to combine the classical and procedural models of administration in Florida's APA is contained in F. Scott Boyd, A Traveler's Guide for the Road to Reform, 22 FLA. ST. U. L. REV. 247, 257 (1994). Return to text.

[11] For an argument that major amendments were actually not needed, see Stephen T. Maher, Getting into the Act, 22 FLA. ST. U. L. REV. 277, 282 (1994). Return to text.

[12] For several different perspectives on the 1994 attempts to amend the APA, see Boyd, supra note 10; Maher, supra note 11; Sally B. Mann, Reforming the APA: Legislative Adventures in the Labyrinth, 22 FLA. ST. U. L. REV. 307 (1994); Lawrence E. Sellers, Jr., 1994 Proposals for Rulemaking Reform, 22 FLA. ST. U. L. REV. 327 (1994); David Gluckman, 1994 APA Legislation: The History, The Reasons, The Results, 22 FLA. ST. U. L. REV. 345 (1994). At least 17 APA bills were filed in 1994. See A Brief History of Selected APA Bills in the 1994 Session, 22 FLA. ST. U. L. REV. 355 (1994). Return to text.

[13] See Veto of Fla. CS for CS for SB 536 (1995) (letter from Gov. Chiles to Sec'y of State Sandra B. Mortham, July 12, 1995) (on file with the Sec'y of State, The Capitol, Tallahassee, Fla.). Return to text.

[14] See generally GOV.'S ADMIN. PROC. ACT REV. COMM 'N, FINAL REPORT (1996) (proposing recommendations for APA revisions). Return to text.

[15] See Act effective Oct. 1, 1996, ch. 96-159, 1996 Fla. Laws 147. Return to text.

[16] For a detailed historical review of the Legislature's continuing efforts, see Dan R. Stengle & James P. Rhea, Putting the Genie Back in the Bottle: The Legislative Struggle to Contain Rulemaking by Executive Agencies, 21 FLA. ST. U. L. REV. 415, 417-46 (1993). Return to text.

[17] In the Federalist Papers, Madison argued for a flexible conception in the division of government power to gain support for the Constitution. He later championed an even more explicit separation of powers amendment based upon the Massachusetts provision. See Bernard Schwartz, Curiouser and Curiouser: The Supreme Court's Separation of Powers Wonderland, 65 NOTRE DAME L. REV. 587, 590-92 (1990). Return to text.

[18] THE FEDERALIST NO. 47, at 244 (James Madison) (Gary Wills ed., 1988). Return to text.

[19] See infra notes 104-06 and accompanying text. For a good general discussion of the separation of powers doctrine as a mechanism for restructuring power in the state constitutions, see GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 150-61 (1969). Return to text.

[20] The phrase "separation of powers" occurs in 10,741 federal and state cases decided since 1944. Search of WESTLAW, Allcases Database (Nov. 12, 1996) (search: "separation of powers" & da(aft 1944)). Return to text.

[21] FLA. CONST. art. II, § 3. Return to text.

[22] See id. art. III, § 1. Return to text.

[23] See id. art. III, § 8. Return to text.

[24] Cf. id. art. V, § 1 ("Commissions established by law, or administrative officers or bodies may be granted quasi-judicial power in matters connected with the functions of their offices."). Return to text.

[25] See, e.g., Jones v. Kind, 61 So. 2d 188, 190 (Fla. 1952) ("It was necessary to delegate the authority and power to effectuate the legislative purpose and policy to some agency."). In his oft-quoted dissent in INS v. Chadha, 462 U.S. 919 (1983), Justice White stated that "[t]here is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term." Id. at 986 (White J., dissenting). Return to text.

[26] See Mistretta v. United States, 488 U.S. 361, 372 (1989). "[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives." Id.; cf. State v. Atlantic Coast Line R.R. Co., 47 So. 969, 982-84 (Fla. 1908). Return to text.

[27] See Department of Legal Aff. v. Rogers, 329 So. 2d 257, 269 (Fla. 1976) (Florida's "little FTC act" not unlawful delegation of legislative authority; agency may flesh out law to create specific prohibitions); Atlantic Coast Line, 47 So. at 976 (railroad commission authorization to prevent abuses, unjust discriminations, and excessive charges not unlawful delegation; commission could adopt rules for complete operation of the law). Return to text.

[28] See Grove Isle, Ltd. v. Department of Envtl. Reg., 454 So. 2d 571, 573 (Fla. 1st DCA 1984) (administrative bodies have no inherent power to promulgate rules and must derive that power from a statutory base). Return to text.

[29] See Department of Ins. v. Southeast Volusia Hosp. Dist., 438 So. 2d 815, 819 (Fla. 1983). Professor Johnny C. Burris has termed the Florida courts' treatment of delegation issues the "pragmatic approach." Johnny C. Burris, Administrative Law: 1991 Survey of Florida Law, 16 NOVA L. REV. 7, 11 (1991). He notes that judicial inquiries are "designed to assure in a minimalistic fashion that the Legislature and not administrative agencies are making fundamental policy decisions." Id. Return to text.

[30] Phillips Petroleum Co. v. Anderson, 74 So. 2d 544, 547 (Fla. 1954) (invalidating municipal zoning ordinance as unconstitutional delegation of legislative power). Return to text.

[31] Delta Truck Brokers, Inc. v. King, 142 So. 2d 273, 275 (Fla. 1962) (invalidating portion of statute delegating authority to alter, restrict, or modify terms of an automobile transportation brokerage license). Return to text.

[32] High Ridge Mgmt. Corp. v. State, 354 So. 2d 377, 380 (Fla. 1978) (invalidating statute delegating authority for rating of nursing homes). Return to text.

[33] Smith v. State, 537 So. 2d 982, 986 (Fla. 1989) (invalidating legislative delegation to the court to set substantive sentencing guidelines). Return to text.

[34] B.H. v. State, 645 So. 2d 987, 993 (Fla. 1994) (invalidating statute delegating agency authority to define restrictiveness levels). Return to text.

[35] Askew v. Cross Key Waterways, 372 So. 2d 913, 920 (Fla. 1979) (invalidating statute authorizing agency to determine lands subject to protective regime). Return to text.

[36] Professor Burris notes that despite the courts' rhetoric, they seldom find statutes unconstitutional. See Burris, supra note 29, at 11-12. Return to text.

[37] Theodore J. Lowi, Two Roads to Serfdom: Liberalism, Conservatism and Administrative Power, 36 AM. U. L. REV. 295, 297 (1987). Return to text.

[38] Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1670 (1975). Return to text.

[39] See Jerry Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. ECON. & ORG. 81 (1985). Professor Jim Rossi warns that some of the 1996 amendments to Florida's Act may prematurely legalize the rulemaking process and so undermine the political aspects of rulemaking. See Jim Rossi, The 1996 Revised Florida Administrative Procedure Act: A Survey of Major Provisions Affecting Florida Agencies, 24 FLA. ST. U. L. REV. 283, 305 (1997). Return to text.

[40] For a discussion of safeguards against factions built into the legislative process, see David Schoenbrod, Separation of Powers and the Powers That Be: The Constitutional Purposes of the Delegation Doctrine, 36 AM. U. L. REV. 355, 371 (1987). Return to text.

[41] A number of commentators have asserted "capture" of administrative agencies by regulated industries or other special interest groups. See, e.g., Richard B. Stewart, Madison's Nightmare, 57 U. CHI. L. REV. 335, 354 (1990); Bernard Schwartz, Of Administrators and Philosopher-Kings: The Republic, the Laws, and Delegations of Power, 72 NW. U. L. REV. 443, 449-50 (1977). Return to text.

[42] See Schoenbrod, supra note 40, at 374. ("Delegation creates balkanization in which factions can avoid facing each other in one legislative process. Instead we create a separate administrative process for each major faction."). Return to text.

[43] The APA as enacted in 1974 did not have an Economic Impact Statement (EIS). The following year, the Florida Economic Impact Disclosure Act of 1975 was passed, see Fla. CS for HB 874 (1975), but vetoed by Governor Reubin Askew, see Veto of Fla. CS for HB 874 (1975) (letter from Gov. Askew to Sec'y of State Bruce A. Smathers, June 27, 1975) (on file with Sec'y of State, The Capitol, Tallahassee, Fla.). The bill was passed into law over the veto the following year and became chapter 76-1, Florida Laws. After extensive discussion between the executive and legislative branches, the 1976 Legislature repealed chapter 76-1 and replaced it with a bill containing amendments to chapter 120, which was signed into law by the Governor. See Act effective July 1, 1976, ch. 76-276, 1976 Fla. Laws 750. Since that time, the EIS requirement has been amended several times. The EIS was ultimately replaced with the Statement of Estimated Regulatory Costs. See Act effective Oct. 1, 1996, ch. 96-159, § 11, 1996 Fla. Laws 147, 171-72 (codified at FLA. STAT. § 120.541 (Supp. 1996)). Return to text.

[44] See FLA. STAT. § 120.54(2)(a) (1995) (amended 1996). The Legislature enacted a statute requiring consideration of the effect of rules on small business in 1985 as part of the Florida Small and Minority Business Assistance Act, ch. 85-104, 1985 Fla. Laws 627. Return to text.

[45] In 1996, Committee Substitute for Senate Bill 424 would have required agencies to consider the impact of proposed rules on the family. See Fla. CS for SB 424 (1996). The Bill passed the Legislature, but was vetoed by Governor Chiles. See Veto of Fla. CS for SB 424 (1996) (letter from Gov. Chiles to Sec'y of State Sandra B. Mortham, May 31, 1996) (on file with Sec'y of State, The Capitol, Tallahassee, Fla.). Return to text.

[46] Under a new provision in section 120.54, Florida Statutes, an agency is for the first time required to consider the impact of its rulemaking upon small counties and small cities. See FLA. STAT. § 120.54(3)(b)(2) (Supp. 1996). Return to text.

[47] For an interesting discussion applying economic analysis techniques to the purpose and effect of logrolling, majority voting rules, and bicameral legislatures, see JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 119-249 (1962). Return to text.

[48] See Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting):

The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. Return to text.

[49] See generally JAMES O. FREEDMAN, CRISIS AND LEGITIMACY: THE ADMINISTRATIVE PROCESS AND AMERICAN GOVERNMENT (1978) (reviewing the power of agencies and that power's effects on the public). Return to text.

[50] Professor Theodore J. Lowi is perhaps the most persistent and articulate advocate of the view that excessive delegation is a major cause of public dissatisfaction with government, among other ills. See Lowi, supra note 37, at 320. While there are no precise figures measuring Floridians' specific distrust of their state government, they seem to share other Americans' general lack of trust in government. See Robert Putnam, A Generation of Loners?, in THE WORLD IN 1996, at 60, 60 (Dudley Fishburn ed., 1995) (reporting that the percentage of Americans who said that they trusted their government "to do what is right most of the time" stood at 75% in the 1950s, but has steadily declined, and is barely 20% today). A 1995-1996 poll similarly reports that only 18% of Floridians think one can trust government—local, state, and federal—to do what is right "just about always" or "most of the time." FLORIDA INT 'L U., FLORIDA POLL RESULTS 67-1 to 67-3 (1996). Return to text.

[51] See Askew v. Cross Key Waterways, 372 So. 2d 913, 925 (Fla. 1978). Return to text.

[52] See id. Return to text.

[53] See discussion supra Part II.A (discussing the constitutional standards requirement). Return to text.

[54] 372 So. 2d 913 (Fla. 1978). Return to text.

[55] Id. at 923. Return to text.

[56] See Commission on Ethics v. Sullivan, 500 So. 2d 553, 555 (Fla. 1st DCA 1986) (commission determined to have no authority to adopt substantive rules in absence of statutory grant). Return to text.

[57] See Act effective Oct. 1, 1996, ch. 96-159, 1996 Fla. Laws 147. Return to text.

[58] See id. § 3, 1996 Fla. Laws at 152 (codified at FLA. STAT. § 120.52(8)(g) (Supp. 1996)). Return to text.

[59] Given the related purposes of the nondelegation doctrine and certain APA requirements, it is sometimes hard to keep them conceptually distinct. A few cases have even suggested that the test for constitutionality is somehow altered by the disciplines of the APA. See Department of Rev. v. Nu-Life Health and Fitness Ctr., 623 So. 2d 747, 751 (Fla. 1st DCA 1993); Albrecht v. Department of Envtl. Reg., 353 So. 2d 883, 886 (Fla. 1st DCA 1978); Cross Key Waterways v. Askew, 351 So. 2d 1062, 1065-67 (Fla. 1st DCA 1977), aff'd, 372 So. 2d 913 (Fla. 1978); cf. Yakus v. United States, 321 U.S. 414 (1944). While the nondelegation doctrine and the APA share certain policy goals, the idea that the existence of rules or the APA itself could have any effect upon the constitutional validity of a statute is difficult to understand. If a statute purporting to delegate the lawmaking power to an agency is beyond the constitutional power of the Legislature, how can another act (the APA) passed by that same legislative body increase the Legislature's constitutional authority? Can the Legislature enact a statute authorizing it to delegate notwithstanding the constitutional restriction? It is even more bewildering to suggest that the subsequent adoption of a rule by an agency can somehow "save" an otherwise unconstitutional statute. The constitutionality of a statute delegating authority must depend solely upon the terms of the statute and the breadth of the constitutional restriction. The test for constitutionality of a statute must remain unaffected by anything that takes place later: the way the statute may be implemented by an agency; the enactment, amendment, or repeal of an APA; or the extent to which the statute was "refined" through rulemaking. Cf. B.H. v. State, 645 So. 2d 987, 994 (Fla. 1994) ("In simple terms, the language of the statute itself wholly fails to give notice of the prohibited act. The fact that an agency rule may attempt to fill the gap is not a relevant concern . . . ."). This is not to say, of course, that a constitutional statute may not be applied unconstitutionally. Return to text.

[60] An agency willing to admit that it had no delegated authority to adopt a particular policy by rule might make the argument that it still had authority to implement the policy and that the lack of rulemaking power simply proved it was not "practicable" or "feasible" to adopt it by rule. This argument has a superficial appeal, but the APA does not define "practicable" or "feasible" in this way. See FLA. STAT. § 120.54(1)(a) (Supp. 1996). Section 120.57(1)(e)(2)(b), Florida Statutes, also expressly provides that an "unadopted rule" cannot "enlarge, modify, or contravene the specific provisions of law implemented," which is exactly the same standard applied to rules and explained in such detail by the amendments. Id. § 120.57(1)(e)(2)(b). Most importantly, this interpretation of the Act would be contrary to the overall legislative intent to prevent agencies from going beyond the bounds of delegated authority to formulate and execute unintended and undesirable policies. The provisions of former section 120.535, Florida Statutes, are now found in sections 120.54(1)(a), 120.56(4), 120.595(4), 120.80(13)(a), and 120.81(3)(a). See ch. 96-159, § 10, 1996 Fla. Laws at 160-61; id. § 16, 1996 Fla. Laws at 182-83; id. § 25, 1996 Fla. Laws at 196; id. § 41, 1996 Fla. Laws at 208-09; id. § 42, 1996 Fla. Laws at 211. Return to text.

[61] See FLA. STAT. § 11.60 (Supp. 1996). Return to text.

[62] Chapter 74-310, Florida Laws, created JAPC, required agencies to file rules and supporting documents with JAPC, gave JAPC the authority to object to certain rules, and required agencies to respond to those objections. See Administrative Procedure Act, ch. 74-310, §§ 1, 2, 1974 Fla. Laws 952, 958, 972 (codified as amended at FLA. STAT. §§ 11.60, 120.54(3)(a)(4), .545 (Supp. 1996)). Return to text.

[63] For a discussion of the new rule suspension procedures, which might be considered a new function for the committee, see discussion infra Part IV. For a discussion of the committee's new responsibility to review statutes authorizing agencies to adopt rules, see discussion infra Part VI. Return to text.

[64] See FLA. STAT. § 11.60(2)(m) (Supp. 1996). Return to text.

[65] See id. § 11.60(2)(l). Return to text.

[66] See id. § 120.54(3)(e)(4). Return to text.

[67] See supra text accompanying notes 9-16. Return to text.

[68] In response to a perceived rise in constituent complaints, the House of Representatives Select Committee on Agency Rules and Administrative Procedures was established in late 1992 to investigate citizen interaction with agencies and prepare necessary legislation. See FLA. H.R. JOUR. 7 (Org. Sess. 1992). The Select Committee held a number of public hearings throughout Florida that elicited numerous complaints about agency administrative actions. The following year, the Senate created a Senate Select Committee on Governmental Reform, which was given a similar mission. See Mann, supra note 12, at 309. Return to text.

[69] FLA. STAT. § 11.60(2)(m) (Supp. 1996). Return to text.

[70] JAPC is sent detailed information from the agency on each rule that is adopted, see id. § 120.54(3)(a), receives copies of all rule challenge petitions filed, see id. § 120.56(1)(c), and may request additional information from an agency, see id. § 120.545(2). JAPC may determine that it also needs to seek information from other sources. Return to text.

[71] At the time this Article was being prepared for publication, JAPC had not yet examined this problem. Return to text.

[72] See FLA. STAT. § 11.60(2)(m) (Supp. 1996). Return to text.

[73] See id. § 120.545(1). Return to text.

[74] See id. Return to text.

[75] On numerous occasions, citizen complaints or concerns about a rule have prompted JAPC to review existing rules. Occasionally, these reviews result in formal rule objections. Return to text.

[76] See FLA. STAT. § 120.545(1) (Supp. 1996). Return to text.

[77] See id. Return to text.

[78] Id. § 11.60(2)(l). Return to text.

[79] Section 11.60, Florida Statutes, requires JAPC to submit an annual report and mandates that certain information be included. See id. § 11.60(2)(f). JAPC is not specifically required to include the results of the continuous review as part of this report. See id. Return to text.

[80] Section 11.60, Florida Statutes, provides that in reviewing a rule, JAPC must advise the agency of its findings. See id. § 11.60(2). Section 120.545, Florida Statutes, also states that "the committee may request from an agency such information as is reasonably necessary for examination of a rule." Id. § 120.545(2). Return to text.

[81] Section 120.54, Florida Statutes, provides that an agency may make substantive changes to a rule in response to a proposed objection by JAPC. See id. § 120.54(3)(d)(1). Return to text.

[82] In testimony given before the Senate Select Committee on Governmental Reform in 1994, Carroll Webb, executive director of JAPC, noted the difficulty in getting a few agencies to respond to the committee. See Fla. S. Select Comm. on Govtl. Reform, tape recording of proceedings (Feb. 24, 1994) (on file with comm.) (comments of Carroll Webb). Return to text.

[83] See Fla. CS for CS for SB 536 (1995). Return to text.

[84] See Act effective Oct. 1, 1996, ch. 96-159, § 10, 1996 Fla. Laws 147, 166 (codified at FLA. STAT. § 120.54(3)(e)(4) (Supp. 1996)). Return to text.

[85] FLA. STAT. § 120.54(3)(e)(4) (Supp. 1996). Return to text.

[86] The APA establishes a 90-day time limit on the rule adoption process, which begins to run with notice of a rule in the Florida Administrative Weekly. See id. § 120.54(3). However, the Act provides for several exceptions and extensions to, as well as the tolling of, this 90-day period. See id. § 120.54(3)(e). Return to text.

[87] See id. § 120.54(3)(e)(5). Return to text.

[88] See id. § 120.54(3)(d)(4). This is consistent with current practice regarding rule certifications. For example, if an agency certifies that an administrative determination is not pending on the rule, but DOS determines otherwise, DOS now rejects the rule notwithstanding the certification. This seems to be in accord with the intent and plain language of the statute. Return to text.

[89] See id. § 120.54(3)(d). Return to text.

[90] For a discussion of what constitutes a "response," see infra text accompanying note 92. Return to text.

[91] A notice of any substantive changes to the rule must be filed with JAPC at least 21 days before filing the rule for adoption. See FLA. STAT. § 120.54(3)(d)(1) (Supp. 1996). Return to text.

[92] A notice that a rule has not been changed or contains only technical changes must be filed with the committee at least seven days prior to filing the rule for adoption. See id. § 120.54(3)(d)(1). Return to text.

[93] The legislative history of the provision—coming as a response to the problem of some agencies simply refusing to answer letters from the JAPC, see supra note 82 and accompanying text—should refute any suggestion that a response requires the agency to accede to the views of the JAPC regarding a particular rule. Return to text.

[94] The word "respond" is often used to refer to a positive reaction. This connotation of the word in the APA might raise constitutional issues. Direct legislative control over the content of executive agency rules by a committee could constitute lawmaking without compliance with the bicameralism and presentment requirements of the constitution. See infra Part IV.A.1. Return to text.

[95] See FLA. STAT. § 120.54(3)(d)(4) (Supp. 1996). Return to text.

[96] See discussion supra Part II.A. Return to text.

[97] Several states employ legislative veto or legislative suspension provisions. See ALA. CODE §§ 41-22-23, -27 (1995) (joint committee suspends proposed rules; rule is reinstated sine die unless a joint resolution sustains the committee suspension); CONN. GEN. STAT. §§ 4-170 to -171 (1995) (joint committee disapproves proposed and existing rules; legislature may reverse disapproval by resolution, has a constitutional clause); IDAHO CODE § 67-5291 (1996) (standing committees in each house review rules; a concurrent resolution may reject, amend, or modify a rule); 5 ILL. COMP. STAT. 100/5-115(b) (West 1996) (joint committee statement on proposed rule does not allow filing for 180 days; legislature's joint resolution forbids filing); IOWA CODE § 17A.8 (1996) (joint committee may delay the effective date of proposed rule; rule is effective sine die unless joint resolution disapproves the rule; has a constitutional clause); LA. REV. STAT. ANN. § 49:969 (West 1995) (legislature may suspend or nullify rule by concurrent resolution); MICH. COMP. LAWS § 24.252 (1996) (joint committee may suspend rule promulgated during the interim between regular sessions until the end of the next regular session; has a constitutional clause); MINN. STAT. § 3.842 (1995) (joint committee suspends proposed and existing rules; rule is reinstated sine die unless a bill to repeal the rule is enacted into law); MO. REV. STAT. § 536.037 (1995) (joint committee may suspend rules of administrative hearing commission; grant of rulemaking authority declared nonseverable from this power); OHIO REV. CODE ANN. § 119.031 (Banks-Baldwin 1996) (joint committee suspends proposed rules; rule is reinstated after each house has five floor sessions unless invalidated by joint resolution); S.C. CODE ANN. § 1-23-120 (Law. Co-op. 1995) (proposed rules submitted to legislature; rule takes effect 120 days later unless resolution disapproving rule is filed; sine die tolls the 120-day period for review); S.D. CODIFIED LAWS § 1-26-38 (Michie 1996) (interim rules review committee may suspend proposed rules until July 1 of the year following the year it would have become effective); TENN. CODE ANN. § 4-5-225 (1996) (all rules expire on June 30 of following year; upon vote of standing committees of each house, rule is suspended; resolution of assembly can end committees' suspension); VA. CODE ANN. § 9-6.14:9.2 (Michie 1996) (standing committees of each house, with governor, can suspend effective date of a rule; rule is effective sine die unless a bill to repeal rule is enacted into law); WASH. REV. CODE § 34.05.640 (1995) (joint committee may recommend suspension of an existing rule to the governor, whose suspension extends to 90 days sine die); WIS. STAT. § 227.19 (1995) (joint committee suspends proposed rules; rule is effective sine die unless bill to support objection is enacted into law). Return to text.

[98] As Justice White stated in his dissent in INS v. Chadha, 462 U.S. 919 (1983):

If Congress may delegate lawmaking power to independent and executive agencies, it is most difficult to understand Article I as forbidding Congress from also reserving a check on legislative power for itself. Absent the veto, the agencies receiving delegations of legislative or quasi-legislative power may issue regulations having the force of law without bicameral approval and without the President's signature. It is thus not apparent why the reservation of a veto over the exercise of that legislative power must be subject to a more exacting test.

Id. at 986. Return to text. [100] See Martinez, 478 N.W.2d at 587; Legislative Research Comm'n v. Brown, 664 S.W.2d 907 (Ky. 1984) (legislative committee suspension of effective date of administrative rule unconstitutional); State ex rel. Barker v. Manchin, 279 S.E.2d 622, 636 (W. Va. 1981) (statute empowering legislative rulemaking review committee to veto rules unconstitutional); In re Opinion of the Justices, 431 A.2d 783, 788 (N.H. 1981) (statute allowing committee rejection of rules unconstitutional, but dictum says temporary suspension pending a bill would be constitutional). Return to text.

[101] See Chadha, 462 U.S. at 956, 959 (overturning statute allowing either the Senate or the House of Representatives to countermand administrative decision); cf. Enourato v. New Jersey Bldg. Auth., 448 A.2d 449, 455 (N.J. 1982) (allowing either house to veto a proposed building project by failing to approve it). Return to text.

[102] See Mead v. Arnell, 791 P.2d 410, 414 (Idaho 1990) (joint resolution to repeal administrative rule is constitutional); State v. A.L.I.V.E. Voluntary, 606 P.2d 769, 779 (Alaska 1980) (annulment of agency regulation by concurrent resolution unconstitutional). Return to text.

[103] See Martinez, 478 N.W.2d at 587 (joint committee suspension of administrative rules pending bicameral review by the Legislature and presentment to the Governor constitutional); see also 5 U.S.C.A. §§ 801-808 (West Supp. 1996) (providing for congressional delay and disapproval of major rules). Return to text.

[104] A strict separation of powers clause includes not simply the division of power, but a further instruction that one branch is not to exercise the powers of the others. There are 34 states with strict separation clauses. See ALA. CONST. art. III, §§ 42, 43; AZ. CONST. art. III; ARK. CONST. art. 4, §§ 1, 2; CAL. CONST. art. III, § 3; COL. CONST. art. III; FLA. CONST. art. II, § 3; GA. CONST. art. I, § 2; IDAHO CONST. art. II, § 1; ILL. CONST. art. II, § 1; IND. CONST. art. 3, § 1; IOWA CONST. art. III, § 1; KY. CONST. art. I, §§ 1, 2; LA. CONST. art. II, §§ 1, 2; ME. CONST. art. III, §§ 1, 2; MD. CONST. art. 8; MASS. CONST. part 1, art. XXX; MICH. CONST. chap. 1, art. III, § 2; MINN. CONST. art. III, § 1; MO. CONST. art. II, § 1; MONT. CONST. art. III, § 1; NEB. CONST. art. II, § 1; NEV. CONST. art. 3, § 1; N.J. CONST. art. III, § 1; N.M. CONST. art. III, § 1; OK. CONST. art. IV, § 1; ORE. CONST. art. III, § 1; S.C. CONST. art. I, § 8; TENN. CONST. art. II, §§ 1, 2; TEX. CONST. art. II, § 1; UTAH CONST. art. V, § 1; VT. CONST. chap. II, § 5; VA. CONST. art. III, § 1; W. VA. CONST. art. V, § 1; WYO. CONST. art. 2, § 1. The highest courts of four of these states have decided cases on the legislative veto. See Mead v. Arnell, 791 P.2d 410 (Idaho 1990); Legislative Research Comm'n v. Brown, 664 S.W.2d 907 (Ky. 1984); General Assembly v. Byrne, 448 A.2d 438 (N.J. 1982); Enourato v. New Jersey Bldg. Auth., 448 A.2d 449 (N.J. 1982); State ex rel Barker v. Manchin, 279 S.E.2d 622 (W. Va. 1981). Return to text.

[105] A general separation of powers clause simply divides the power of government into the three branches. There are six states with general clauses. See CONN. CONST. art. II; MISS. CONST. art. I, § 1; N.H. CONST. part 1, art. 37; N.C. CONST. art. 1, § 6; R.I. CONST. art. 5; S.D. CONST. art. II. New Hampshire is the only one of these states in which the highest court has decided a case on the legislative veto. See In re Opinion of the Justices, 431 A.2d 783 (N.H. 1981). Return to text.

[106] The United States and 10 states have no explicit separation of powers clause in their constitutions; separation of powers is implied from the allocation of power to the branches of government. See U.S. CONST. art. I, II, III; ALASKA CONST. art. II, II, IV; HAW. CONST. art. III, V, VI; N.Y. CONST. art. III, IV, VI; DEL. CONST. art. II, III, IV; KAN. CONST. art. I, II, III; N.D. CONST. art. IV, V, VI; OHIO CONST. art. II, III, IV; PA. CONST. I, IV, V; WASH. CONST. art. II, II, IV; WISC. CONST. art. IV, V, VII. The highest courts of three of these states have decided cases on the legislative veto. See State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980); State ex rel. Stephan v. Kansas House of Representatives, 687 P.2d 622 (Kan. 1984); Martinez v. Department of Indus., Labor & Human Relations, 478 N.W.2d 582 (Wis. 1992). Return to text.

[107] Kansas and Kentucky consider rulemaking to be essentially an executive power. See Stephan, 687 P.2d at 635; Brown, 664 S.W.2d at 918. Return to text.

[108] Idaho and Wisconsin consider rulemaking to be a delegated legislative power. See Mead, 791 P.2d at 415 ; Martinez, 478 N.W.2d at 585. Return to text.

[109] The Kansas Supreme Court invalidated a provision that would have allowed the Legislature to modify rules by concurrent resolution without presentment. See Stephan, 687 P.2d at 635. Return to text.

[110] See Mead, 791 P.2d at 415. The Idaho Supreme Court upheld a provision allowing the Legislature only to negate rules, see id., while the West Virginia Supreme Court invalidated a statute empowering a legislative committee only to negate rules, see State ex rel. Barker v. Manchin, 279 S.E.2d 622, 636 (W. Va. 1981). Return to text.

[111] The Wisconsin Supreme Court expressly noted that rules could be suspended only on the basis of one or more of six enumerated reasons, thus the delegation to the committee permitted no arbitrary action. See Martinez, 478 N.W.2d at 585-86; cf. In re Opinion of the Justices, 431 A.2d 783, 788 (N.H. 1981) (stating that the legislature could not delegate its legislative authority to a smaller part of the whole legislature). Application of explicit criteria may increase concerns that the legislative branch has encroached on the judicial function. See INS v. Chadha, 462 U.S. 919, 963 (Powell, J. concurring) (noting that "Congress impermissibly assumed a judicial function"). The argument that a legislative veto constitutes a judicial function seems stronger in a situation like that in Chadha, where the legislative vote directly affects a particular case in controversy, than when rules of general applicability are involved. Return to text.

[112] The legislative veto by concurrent resolution at issue in General Assembly v. Byrne, 448 A.2d 438 (N.J. 1982), applied to all agency rules and was declared unconstitutional. See id. at 448; cf. Enourato v. New Jersey Bldg. Auth., 448 A.2d 449, 455 (N.J. 1982) (decided by the same court on the same day). Return to text.

[113] See Enourato, 448 A.2d at 445 (upholding a legislative veto limited in its application to discrete projects proposed by the building authority). Return to text.

[114] Modification and withdrawal are applicable to proposed rules, while amendment and repeal apply to existing rules. See FLA. STAT. § 120.545(3)-(4) (Supp. 1996). Return to text.

[115] The JAPC objection process has not been amended in the new Act, except for slight changes to the grounds for objection. See id. § 120.545(1)-(9). Return to text.

[116] See id. § 120.545(10). Return to text.

[117] Notice of modification or withdrawal is published in the first available issue of the publication in which the original notice of rulemaking was published, usually the Florida Administrative Weekly. See id. § 120.54(3)(d)(4). Return to text.

[118] See id. § 120.54(2). It should be noted that no particular length of time between rule development notice and subsequent rulemaking notice is specified by the APA. Return to text.

[119] See id. § 120.545(10). Return to text.

[120] No further action is necessary after withdrawal and publication. See id. § 120.54(3)(e)(5). Return to text.

[121] As a practical matter, virtually every attempt to change a rule following objection will involve an existing rule. An objection does not itself halt or delay the rule adoption process, so even rules that were only proposed at the time of objection are very likely to be existing by the time an agency attempts to change them. It is true that an agency may voluntarily toll the 90-day period for filing the rule in response to a proposed JAPC objection under section 120.54(3)(e)(6). However, the 90-day clock resumes when JAPC notifies the agency that it has completed its review, presumably prior to voting on the objection. See id. § 120.54(3)(e)(6). Return to text.

[122] See id. § 120.545(10)(b)(1). Return to text.

[123] See id. § 120.545(10)(b)(2). An agency must respond within 30 days unless the agency is headed by a collegial body, in which case it must respond within 45 days. See id. This is identical to the time provided for agency response to an objection under section 120.545(3). Return to text.

[124] See id. § 120.545(10)(b)(3). Return to text.

[125] See id. § 120.545(10)(b)(4). Return to text.

[126] See id. § 120.545(10)(c). Return to text.

[127] For a contrary view, see T. Andrew Zodrow, The Use of the Legislative Veto in Florida: A Violation of the Separation of Powers Doctrine, FLA. B.J., Nov. 1996, at 65. Return to text.

[128] It seems unlikely the agency would attempt to enact an identical rule again, at least not soon after the legislative action, but what if the agency proposes a similar rule? Return to text.

[129] See FLA. STAT. § 120.545(10)(e) (Supp. 1996). Presumably, it would then be effective on the date the law took effect, not on the date DOS conformed the rule. Note that this would have the effect of making a proposed rule immediately effective. Return to text.

[130] It would seem so, because on what basis could an administrative law judge conclude that it was an "invalid exercise of delegated legislative authority"? See Occidental Chem. Agric. Prods., Inc. v. Department of Envtl. Reg., 501 So. 2d 674 (Fla. 1st DCA 1987) (no exhaustion of administrative remedies required before filing challenge in circuit court to rule ratified by statute). Return to text.

[131] Statutory ratification and amendment of the controversial criteria for evaluating compliance of local comprehensive plans, see FLA. ADMIN. CODE ANN. ch. 9J-5 (1996), included specific language on the availability of rule challenge proceedings. See Home Builders and Contractors Ass'n of Brevard, Inc. v. Department of Comm'y Aff., 585 So. 2d 965 (Fla. 1st DCA 1991). Return to text.

[132] This is not to say that the subject matter is not also important; the bill will undoubtedly be referred to substantive committees. Return to text.

[133] See FLA. STAT. § 120.536 (Supp. 1996). Return to text.

[134] See id. § 120.536(1). Return to text.

[135] See id. § 120.536(2). Return to text.

[136] See id. § 120.536(3). Return to text.

[137] See id. § 120.536(4). Return to text.

[138] A more detailed look at the troubled evolution of standards of review of rulemaking in Florida is found in Boyd, supra note 10, at 263-70. The author argues that the courts have often adopted federal standards of review and not followed the applicable provisions of Florida's APA. Return to text.

[139] See supra notes 24-36 and accompanying text. Return to text.

[140] While a particular enabling statute may establish some procedures, it is section 120.54 that prescribes generally applicable rulemaking procedures. Section 120.52(8)(a) provides that a rule is invalid if the agency has materially failed to follow these procedures. See FLA. STAT. § 120.52(8)(a) (Supp. 1996). Return to text.

[141] An otherwise valid rule obviously may not violate the Due Process Clause or any other constitutional provision. Section 120.52(8)(d)—which itself has a constitutional basis—and the new section 120.52(8)(g) are examples of additional statutory restrictions unrelated to the scope or extent of the power delegated by the enabling statute. Return to text.

[142] An otherwise valid rule is invalid if it cannot be factually supported. See Agrico Chem. Co. v. Department of Envtl. Reg., 365 So. 2d 759, 763 (Fla. 1st DCA 1979). Consideration of the empirical basis of a rule has been most often subsumed under the "arbitrary and capricious" rubric, which also is applicable to the exercise of agency discretion within the confines of delegated authority. In Agrico Chemical, the court declared that a proposed rule was invalid if it was arbitrary. See id. The court went on to say that "[a]n arbitrary decision is one not supported by facts or logic, or despotic." Id. The Agrico Chemical standard has been cited many times as requiring only this minimum rationality in rulemaking. Section 120.52(8)(f) of the Act now provides, in accordance with a minority of opinions, that an administrative law judge must invalidate a rule not supported by competent substantial evidence. See FLA. STAT. § 120.52(8)(f) (Supp. 1996). Return to text.

[143] Exercise of agency discretion is customarily reviewed under the "arbitrary and capricious" standard. While it has a broken and confused pedigree, the common use of this standard in Florida stems from Florida Beverage Corp. v. Wynne, 306 So. 2d 200 (Fla. 1st DCA 1975). Under the federal APA, the highly deferential "arbitrary and capricious" standard is used to review both the factual support and the exercise of policy discretion in informal agency action such as most rulemaking. See 5 U.S.C. § 706(2)(A) (1994). The same has most often been true in Florida. Now that two standards are listed under section 120.52(8), "competent substantial evidence" presumably will become the standard for evaluation of issues concerning the factual basis of a rule, while "arbitrary and capricious" will be reserved as the standard of review for questions of discretion. These are not easy to separate, and administrative law judges and courts have understandably often failed to clarify which they are reviewing. More confusion may lie ahead. Return to text.

[144] See, e.g., Department of Ins. v. Great Northern Insured Annuity Corp., 667 So. 2d 796, 801 (Fla. 1st DCA 1995) (applying reasonable basis standard to statutory classifications); American Ins. Ass'n v. Department of Ins., 657 So. 2d 951, 954 (Fla. 1st DCA 1995) (not in accord with delegated authority); Department of HRS v. Johnson and Johnson Home Health Care, Inc., 447 So. 2d 361, 362 (Fla. 1st DCA 1984) (inconsistent with statutory criteria); North Am. Publications, Inc. v. Department of Rev., 436 So. 2d 954, 955 (Fla. 1st DCA 1983) (interpretation clearly erroneous). Sometimes numerous standards are cited. See Board of Optometry v. Florida Soc'y of Ophthalmology, 538 So. 2d 878, 884 (Fla. 1st DCA 1988) (agency cannot exceed its authority; construction of a statute not overturned unless clearly erroneous; cannot enlarge, modify, or contravene statute; reasonably related to purpose of enabling legislation; permissible interpretation of statute must be sustained). Often no explicit standard is invoked in a decision. See, e.g., Packaging Corp. of Am. v. Department of Envtl. Reg., 596 So. 2d 1273, 1275 (Fla. 1st DCA 1992). Return to text.

[145] The standard was first stated in this express tripartite formula in Department of Business Regulation v. Salvation Ltd., 452 So. 2d 65, 66 (Fla. 1st DCA 1984). Return to text.

[146] This test was adopted from federal law in Florida Beverage Corp. v. Wynne, 306 So. 2d 200, 202 (Fla. 1st DCA 1975). It was coupled there with the phrase "and [is] not arbitrary or capricious," which is the standard for review of the factual support and the exercise of policy discretion in a rule. See id.; see also supra note 143. The standard is almost always expressed with these two parts together, although a case will occasionally explain the component parts. See, e.g., Department of Correct. v. Hargrove, 615 So. 2d 199, 201 (Fla. 1st DCA 1993). Return to text.

[147] A policy section, like a preamble, is not a part of the substantive portion of the statute. It is available as an aid to the interpretation and clarification of ambiguous provisions elsewhere in the statute. See 1A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 20.12, at 97 (5th ed. 1992). Return to text.

[148] "Enlarge," "modify," and "contravene" occur in the same sentence in 27 Florida cases decided since 1975. Search of WESTLAW, Florida Cases Database (Nov. 12, 1996) (search: enlarge /s modify /s contravene & da(aft 1975)). However, examination showed that eight of these were not in fact referring to the standard or were not applying it in the case under consideration. Other cases actually applying the standard were probably not identified in the search because of minor variations in wording, but this computer sample is likely to be representative. Return to text.

[149] See Campus Communications, Inc. v. Department of Rev., 473 So. 2d 1290, 1295 (Fla. 1985) (rule requiring newspaper to be sold to qualify for sales tax exemption modified statute creating exemption); Department of Rev. v. Zurich Ins. Co., 667 So. 2d 365, 368 (Fla. 1st DCA 1995) (rule including workers' compensation administrative assessment enlarged or modified statutory provision excluding special purpose obligations); Witmer v. Department of Bus. & Prof. Reg., 662 So. 2d 1299, 1302 (Fla. 4th DCA 1995) (rule prohibiting corrupt racing practices enlarged statutory provision prohibiting racing of drugged animals); Garrison Corp., Inc. v. Department of HRS, 662 So. 2d 1374, 1380 (Fla. 1st DCA 1995) (rule requiring square footage of some private office space to be calculated in determining smoking area enlarged statute exempting such space); Merritt v. Board of Chiropractic, 654 So. 2d 1051, 1054 (Fla. 1st DCA 1995) (rule defining appropriate medical treatment to be whatever peer review committee determined it to be enlarged, modified, and contravened statute defining medically accepted standards); DeMario v. Franklin Mortgage & Inv. Co., Inc., 648 So. 2d 210, 214 (Fla. 4th DCA 1994) (90-day requirement in Department of Revenue rule not mandatory because it would then enlarge, modify, and contravene statute governing excess tax sale funds); Hillhaven Corp. v. Department of HRS, 625 So. 2d 1299, 1303 (Fla. 1st DCA 1993) (rules implementing budget cuts illegally ordered by Administration Commission contravened statute requiring actions in compliance with legislative appropriations); Board of Dentistry v. Florida Dental Hygienist Ass'n, Inc., 612 So. 2d 646, 654 (Fla. 1st DCA 1993) (rule allowing licensure of dental hygienists based upon graduation from schools with substantially lower standards contravened statute establishing licensure requirements); Department of Envtl. Reg. v. Manasota-88, Inc., 584 So. 2d 133, 135 (Fla. 1st DCA 1991) (rule imposing fee of 50 cents per page for preparation of records on appeal enlarged or modified enabling statutes); Department of Nat. Resources v. Wingfield Dev. Co., 581 So. 2d 193, 197 (Fla. 1st DCA 1991) (rule requiring continuous physical activity on structures enlarged, modified, and contravened statute granting exemption to facilities under construction); Cataract Surgery Ctr. v. Health Care Cost Containment Bd., 581 So. 2d 1359, 1364 (Fla. 1st DCA 1991) (rule requiring submission of data by free-standing ambulatory surgical centers enlarged statutory authority relating to hospitals and nursing homes); United States Shoe Corp. v. Department of Prof'l Reg., Bd. of Opticianry, 578 So. 2d 376, 381 (Fla. 1st DCA 1991) (rule requiring sponsor of apprentice optician to dispense eyewear and keep equipment on premises where apprentice works enlarges and contravenes the statute on requirements for sponsors); Board of Trust. of the Int. Imp. Trust Fund v. Board of Prof'l Land Surveyors, 566 So. 2d 1358, 1361 (Fla. 1st DCA 1990) (rule defining ordinary high water line enlarged and modified statutory authority to establish minimum technical standards for surveys); Board of Optometry v. Florida Soc'y of Ophthalmology, 538 So. 2d 878, 887 (Fla. 1st DCA 1989) (citing various standards, but holding rule that permitted optometrist to dispense topical ocular drugs without board administered examination was modification of statute and was invalid); Department of Bus. Reg. v. Salvation Ltd., Inc., 452 So. 2d 65, 67 (Fla. 1st DCA 1984) (rule requiring restaurant licensee to prepare meals on premises enlarged, modified, and contravened statute setting forth requirements for restaurant license). Return to text.

[150] See Board of Trust. of the Int. Imp. Trust Fund v. Levy, 656 So. 2d 1359, 1362 (Fla. 1st DCA 1995) (rule limiting docks to lesser of 500 feet or 20% of width of water body in aquatic preserves did not enlarge, modify, or contravene statute permitting docks for reasonable ingress or egress of riparian owners); Ameraquatic, Inc. v. Department of Nat. Resources, 651 So. 2d 114, 120 (Fla. 1st DCA 1995) (rules defining eradication program and setting general standards for choice of herbicide did not enlarge, modify, or contravene statutes on aquatic plant management); Stuart Yacht Club & Marina, Inc. v. Department of Nat. Resources, 625 So. 2d 1263 (Fla. 4th DCA 1993) (rules requiring submission of information and detailing specific equipment to be onsite for fuel spills, but allowing substitution, did not enlarge, modify, or contravene statute requiring cleanup equipment to be available); Florida Hosp. Ass'n v. Health Care Cost Containment Bd., 593 So. 2d 1137, 1140 (Fla. 1st DCA 1992) (rule penalizing excessive gross revenues per adjusted admission did not contravene statute requiring penalties to be assessed per day of admission). Return to text.

[151] "Reasonably related" and "purposes" occur in the same sentence in 40 Florida cases decided since 1975. Search of WESTLAW, Florida Cases Database (Nov. 12, 1996) (search: "reasonably related" /s purposes & da(aft 1975)). However, examination showed that 24 of these were not in fact referring to the standard or were not applying it in the case under consideration. For a discussion of two other cases see infra notes 156-58. Other cases actually applying the standard were probably not identified in the search because of minor variations in expression, but the sample is probably representative. Return to text.

[152] In Grove Isle, Ltd. v. Department of Environmental Regulation, 454 So. 2d 571 (Fla. 1st DCA 1984), two rules were under consideration; the court found one of these to be valid and one to be invalid under the "reasonably related to the purpose of the statute" standard. See id. at 573. Return to text.

[153] See General Tel. Co. of Fla. v. Florida Pub. Serv. Comm'n, 446 So. 2d 1063, 1067 (Fla. 1984) (rule governing the effect of parent debt of regulated companies on federal corporate income tax reasonably related to purposes of statute granting power to prescribe fair and reasonable rates); Marine Indus. Ass'n of South Fla., Inc. v. Department of Envtl. Prot., 672 So. 2d 878, 882-83 (Fla. 4th DCA 1996) (rule establishing area for slow speed boating reasonably related to "frequent sightings" criteria of statute to protect manatees); Department of Ins. v. Great Northern Insured Annuity Corp., 667 So. 2d 796, 799 (Fla. 1st DCA 1995) (rules regulating association of insurance activity with banking industry reasonably related to purposes of statute to prevent coercion, unfair trade practices, and undue concentration of resources); Charles E. Burkett & Assocs., Inc. v. Department of Transp., 637 So. 2d 47, 48 (Fla. 5th DCA 1994) (rules establishing criteria to qualify as disadvantaged business enterprise reasonably related to the purpose of the legislation to encourage minorities and women to actively participate in the construction services professions); Department of Labor & Employ. Sec. v. Bradley, 636 So. 2d 802, 807 (Fla. 1st DCA 1994) (rules providing for reimbursement for "physical reconditioning" services reasonably related to statutory purpose to deliver "medically necessary" services to injured workers); General Motors Corp. v. Department of High. Saf. & Motor Veh., 625 So. 2d 76, 78 (Fla. 1st DCA 1993) (rule establishing one-year time limit on motor vehicle dealer license reasonably related to purposes of maintaining competition, providing consumer protection and fair trade); Florida League of Cities, Inc. v. Department of Envtl. Reg., 603 So. 2d 1363, 1370 (Fla. 1st DCA 1992) (rule establishing minimum standards for management and disposal of domestic waste water residuals reasonably related to purposes of statute to control and prohibit pollution of the air and water and to develop and implement a solid waste management program); Fairfield Communities v. Florida Land and Water Adjudicatory Comm'n, 522 So. 2d 1012, 1014 (Fla. 1st DCA 1988) (procedural rules governing development of regional impact appeals reasonably related to statutory duty to attach conditions and restrictions to its decision to grant or deny permission to develop); Hobe Assoc., Ltd. v. Department of Bus. Reg., 504 So. 2d 1301, 1306 (Fla. 1st DCA 1987) (rule listing specific types of amendments to prospectus that were possible without consent of mobile home park occupants reasonably related to purposes of statute regulating mobile home parks); Florida Waterworks Ass'n v. Florida Pub. Serv. Comm'n, 473 So. 2d 237, 240 (Fla. 1st DCA 1985) (rules on "contributions-in-aid-of-construction" reasonably related to purposes of statute to allow PSC to set standards for service-availability charges); Board of Medical Examiners v. Durrani, 455 So. 2d 515, 517 (Fla. 1st DCA 1984) (criteria selected by Board of Medical Examiners for licensing of previously unlicensed persons "by endorsement" of persons licensed elsewhere reasonably related to purposes of licensing statute); Roberts v. Florida Parole and Probation Comm'n, 424 So. 2d 64, 65 (Fla. 1st DCA 1982) (rule setting method for Commission to rate attempted crimes reasonably related to the purposes of statute); Florida Beverage Corp., Inc. v. Wynne, 306 So. 2d 200, 202 (Fla. 1st DCA 1975) (regulation providing for cooperative or pool buying by liquor vendors had reasonable relationship to the purposes intended by the Legislature). Return to text.

[154] See Rabren v. Board of Pilot Comm'rs, 497 So. 2d 1245, 1249 (Fla. 1st DCA 1986). Return to text.

[155] See id. at 1251 (Zehmer, J., dissenting) Return to text.

[156] See General Motors Corp. v. Department of High. Saf. & Motor Veh., 625 So. 2d 76, 78 (Fla. 1st DCA 1993). Return to text.

[157] See id. at 80 (Booth, J., dissenting). Return to text.

[158] See Booker Creek Preservation, Inc. v. Southwest Fla. Water Mgmt. Dist., 534 So. 2d 419, 423 (Fla. 5th DCA 1988). Return to text.

[159] In Department of Health and Rehabilitative Services v. Florida Psychiatric Society, Inc., 382 So. 2d 1280 (Fla. 1st DCA 1980), the court, in rejecting the argument that the "reasonably related to the purposes" standard should be applied, stated: "The first difficulty we have with the Department's argument is the absence of specific 'enabling legislation.' " Id. at 1283. Under these circumstances, section 120.536(1), Florida Statutes, now provides that the agency has no power to adopt the rule. See infra text accompanying note 170. Return to text.

[160] See Fla. H.R. Comm. on Govtl. Ops., HB 710 and SB 608 (1987) Staff Analysis 2-3 (rev. Apr. 15, 1987) (available at Fla. Dep't of State, Div. of Archives, Tallahassee, Fla.) (explaining that section 120.52(8)(e), Florida Statutes (1987), represents a codification of some of the standards that had been applied by courts in determining the validity of rules). Return to text.

[161] Act effective Oct. 1, 1987, ch. 87-385, § 2, 1987 Fla. Laws 2316, 2318. Return to text.

[162] See id. (codified at FLA. STAT. § 120.52(8)(c) (Supp. 1996)). Return to text.

[163] 553 So. 2d 1260 (Fla. 1st DCA 1989). The Adam Smith court, on appeal of a DOAH rule challenge proceeding, determined that it had before it for review the administrative law judge's order, not the agency's rule. See id. at 1274. This determination is in accord with the APA, which provides that it is the order from DOAH that is reviewable final agency action. See FLA. STAT. § 120.56(1)(e) (Supp.1996). Return to text.

[164] Adam Smith clarified that the "reasonably related to the purposes" standard applied to direct appeals of rulemaking, citing the Florida Supreme Court's often quoted formulation:

Where the empowering provision of a statute states simply that an agency may make such rules and regulations as may be necessary to carry out the provisions of this act, the validity of the regulations promulgated thereunder will be sustained as long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary or capricious.

553 So. 2d at 1271 (quoting General Tel. Co. of Fla. v. Florida Pub. Serv. Comm'n, 446 So. 2d 1063, 1067 (Fla. 1984)) (internal quotation marks omitted). However, direct appeals of rulemaking were never that common. With the enactment of chapter 92-166, Florida Laws, which limited direct appeals to situations in which the sole issue was the constitutionality of the rule, they became even more rare. The provision has been carried over into the new APA as section 120.68(9), Florida Statutes. This limitation on the right to direct appellate review has been held not to be an unconstitutional denial of access to the courts. See Baillie v. Department of Nat. Resources, Div. of Beaches and Shores, 632 So. 2d 1114 (Fla. 1st DCA 1994). Return to text.

[165] See supra note 153. Return to text.

[166] FLA. STAT. § 120.536(1) (Supp. 1996). Return to text.

[167] See id. § 120.52(8). Return to text.

[168] Proposed rules may be challenged under section 120.56(2). Existing rules may be challenged under section 120.56(3). See id. § 120.56(2), (3). Return to text.

[169] JAPC also is directed to use this same standard in its review of rules. See id. § 120.545(1)(a). Return to text.

[170] Id. § 120.536(1). Return to text.

[171] The APA requires that each adopted rule reference not only the grant of rulemaking authority, but also the section of the law being implemented. See id. § 120.54(3)(a)(1). Return to text.

[172] Grants to agencies of the power to adopt rules are so common in the Florida Statutes that it is difficult to find a case in which the absence of such a grant has caused a rule to be declared invalid. One case that did revolve around the absence of such a grant of rulemaking power was State Commission on Ethics v. Sullivan, 500 So. 2d 553 (Fla. 1st DCA 1986). The Sullivan court determined that the APA itself granted all agencies the power to adopt procedural rules, but that neither the Florida Constitution nor any other statute granted the State Commission on Ethics any authority to adopt substantive rules. See id. at 553-54. Return to text.

[173] See, e.g., FLA. STAT. § 198.08 (1995). Return to text.

[174] Id. § 120.536(1) (Supp. 1996). Return to text.

[175] See id. § 120.54(3), (6). Return to text.

[176] Id. § 120.536(1) (Supp. 1996). Return to text.

[177] See supra text accompanying notes 146-65. Return to text.

[178] FLA. STAT. § 120.536(1) (Supp. 1996). Return to text.

[179] This one sentence uses the terms "purpose," "intent," and "policy." One commentator suggests that purpose is a broader concept than intent because it entails an examination of the surrounding circumstances leading to the determination of the legislative objective to be sought. See Alexander Dill, Comment, Scope of Review of Rulemaking After Chadha: A Case for the Delegation Doctrine?, 33 EMORY L.J. 953, 978-79 (1984). The APA amendments seem to use these three terms interchangeably, and this Article makes no attempt to draw any distinction between them. Return to text.

[180] FLA. STAT. § 120.536(1) (Supp. 1996). Return to text.

[181] This is not a novel concept. See 1 AM. JUR. 2D Administrative Law § 42 (1962) ("General language describing the powers and functions of an administrative body may be construed to extend no further than the specific duties and powers conferred by the same statute."). Return to text.

[182] See General Motors Corp. v. Department of High. Saf. & Motor Veh., 625 So. 2d 76, 80 (Fla. 1st DCA 1993) (Booth, J., dissenting). Return to text.

[183] FLA. STAT. § 320.011 (1995). Return to text.

[184] See id. § 320.605. Return to text.

[185] See General Motors, 625 So.2d at 78. Return to text.

[186] See id. at 79 (Booth, J., dissenting). Return to text.

[187] See id. at 80. Return to text.

[188] See id. at 79-80. Return to text.

[189] In arguing for stricter application of the nondelegation doctrine in Florida, Judge John Fennelly has decried the courts' validation of what have been termed "aspirational" statutes, which direct an ambitious objective to be achieved without providing any standards for accomplishing it. See John E. Fennelly, Non-Delegation Doctrine and the Florida Supreme Court: What You See is Not What You Get, 7 ST. THOMAS L. REV. 247, 275-76 (1995). Return to text.

[190] One commentator has noted that the constitutional responsibility of Congress is unfulfilled if legislation leaves basic "normative" issues unanswered. See Ernest Gellhorn, Returning to First Principles, 36 AM. U. L. REV. 345, 347 (1987). Return to text.

[191] An argument can be made that administrative law judges and courts in Florida have generally reviewed rules under those minimal standards that are constitutionally required. That is, they have assumed the legislative intent was to delegate the maximum authority constitutionally permissible. The new amendments clearly establish a stricter statutory limit, and direct administrative law judges to invalidate any rule exceeding it. Return to text.

[192] The difficulty will lie in determining which statutory provisions assign particular duties to an agency and which merely describe general intent or policy. Return to text.

[193] It is clear that Florida is free to apply stricter standards. The constitutional tests establish the minimum statutory standards that must be present, and so allow the maximum amount of delegation, but the state may choose to delegate less by requiring stricter standards. See supra text accompanying notes 51-58. Return to text.

[194] Author's estimate as of October 1, 1996. Return to text.

[195] The Florida Administrative Code contains statutory citations to the "rulemaking authority" and "law implemented" following each rule. Return to text.

[196] See FLA. STAT. § 120.536(2) (Supp. 1996). Return to text.

[197] See id. Return to text.

[198] See id. Return to text.

[199] See id. Return to text.

[200] See id. Return to text.

[201] See id. Return to text.

[202] See id. Return to text.

[203] See id. Return to text.

[204] See id. This new provision does not seem substantially different from the normal petition to initiate rulemaking—which also may consist of a request to repeal a rule—contained in section 120.54(7). One difference is that the new provision expressly extends the right to petition for the repeal of a rule to the committee. It also should be noted that the Act's definition of "agency action" specifically includes the denial of a petition under section 120.54(7), but does not expressly mention denial of a petition under this new section. See id. § 120.52(2). The courts seem likely to consider such a denial to be final agency action for the purposes of section 120.68, even without an express inclusion in the definition. Return to text.

[205] See id. § 120.52(8). Return to text.

[206] The initial sentence of section 120.536(3) uses only the term "filed," but it is clear that the statute is referring to the filing for adoption. First, final adoption is the only time a rule is actually filed. Earlier submissions of rule notices to DOS for publication in the Florida Administrative Weekly do not technically constitute a filing of the rule. Second, in reading the remaining portions of section 120.536(3), it is clear that the overall statutory plan is to eventually bring all rules under the new rulemaking standard. It would not be reasonable to conclude that the legislative intent was instead to create a small group of rules—those initially noticed in the Florida Administrative Weekly prior to October 1, 1996, but not filed for adoption until after that date—that would remain forever unaffected by the new rulemaking standard because they would be neither immediately subject to it nor covered by it upon expiration of either of the two temporary shields. Return to text.

[207] See FLA. STAT. § 120.536(3) (Supp. 1996). Return to text.

[208] See id. The new rulemaking standard of section 120.536(1) is effective for the purposes of rule challenge proceedings under section 120.56 and JAPC review under section 120.545. See id. Return to text.

[209] See id. Return to text.

[210] Section 120.536(2) refers to "a listing of each rule, or portion thereof" that exceeds the new rulemaking standard, and section 120.536(3) "shields" every rule "included on a list." Id. § 120.536(2)-(3). It appears, then, that the shield extends only to the portion of a rule that is included on a list, and not automatically to the entire rule section. Return to text.

[211] The shield is only effective to prevent section 120.56 rule challenges based upon the grounds that the rule exceeds the new rulemaking standard. See id. § 120.536(2). Rule challenges may continue to be filed based upon any other criteria set forth in section 120.52(8). The shield does not appear to protect against an objection to the rule by JAPC, which under section 120.545(1)(a) also is required to apply the new rulemaking standard. JAPC does have authority to review any existing rule under section 120.545(1), although such reviews are not common. Return to text.

[212] See id. § 120.536(3). Return to text.

[213] See id. Return to text.

[214] See id. Return to text.

[215] One of the earliest, and perhaps the best, of the proponents of the "expert agency" was JAMES LANDIS, THE ADMINISTRATIVE PROCESS (1938). This conception of the administrative state was predicated upon the theory that legislative enactments identified objectives to be promoted, but that it was the agency, utilizing its subject matter expertise, that was best able to select from among the range of means to achieve these objectives. See id. at 23-26. Return to text.

[216] For a discussion of the concept of "administrative science" and the procedural reform reaction, see Thomas O. McGarity, Regulatory Reform and the Positive State: An Historical Overview, 38 ADMIN. L. REV. 399, 403 (1986). Return to text.

[217] Agency flexibility in applying policy is described as a principle favoring determination of questions by agencies rather than by the judiciary. See Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2088 (1990). Return to text.

[218] A related debate involves the question of flexibility within the realm of agency policy. After responsibility for certain policy determinations has been delegated to an agency, a subsidiary question arises as to how much of this policy must be adopted as rules and how much may be applied as agency nonrule policy. This issue has been much debated in Florida. See Johnny C. Burris, The Failure of the Florida Judicial Review Process to Provide Effective Incentives for Agency Rulemaking, 18 FLA. ST. U. L. REV. 661 (1991); Patricia A. Dore, Florida Limits Policy Development Through Administrative Adjudication and Requires Indexing and Availability of Agency Orders, 19 FLA. ST. U. L. REV. 437 (1991). The Governor's proposal to repeal the statutory requirement that agencies adopt as rules all policies that they are applying was criticized in Stephen T. Maher, The Death of Rules: How Politics is Suffocating Florida, 8 ST. THOMAS L. REV. 314 (1996). The 1996 legislation retained Florida's strict requirement that all agency policy must be adopted as a rule as soon as it is feasible and practicable to do so, see supra note 60, but created a new waiver provision to allow added flexibility, see Blanton & Rhodes, supra note 8, at 32. The discussion in this Article involves the earlier determination of how much lawmaking authority is to be directly exercised by the Legislature and how much is to be delegated to an administrative agency. Return to text.

[219] As Judge Skelly Wright once put it, "[a]n argument for letting the experts decide when the people's representatives are uncertain or cannot agree is an argument for paternalism and against democracy." J. Skelly Wright, Beyond Discretionary Justice, 81 YALE L.J. 575, 585 (1972). Return to text.

[220] See supra text accompanying note 48. Return to text.

[221] See Schoenbrod, supra note 40, at 373. Return to text.

[222] See Morris P. Fiorina, Legislative Choice of Regulatory Forms: Legal Process or Administrative Process?, 39 PUB. CHOICE 33 (1982). Another commentator, himself a legislator at the time, harshly but concisely expressed one aspect of this phenomenon in this way: "[There is] growing evidence of a perverse symbiotic relationship between legislators and agencies. This symbiotic relationship not only tolerates but, ironically, may even require legislators to create bureaucratic monstrosities against whose foreseeable excesses they can protest to their political gain." David B. Frohnmayer, The Oregon Administrative Procedure Act: An Essay on State Administrative Rulemaking Procedure Reform, 58 OR. L. REV. 411, 459 (1980). Return to text.

[223] Act effective Oct. 1, 1996, ch. 96-159, § 1, 1996 Fla. Laws 147, 149. Return to text.

[224] It is possible that the Legislature might choose to create formal procedures to consider whether proposed legislation contains adequate and appropriate standards and guidelines for an agency. The Governor's Commission recommended that staff analysts discuss this issue. See FINAL REPORT, supra note 14, at 17. Similar requirements have been placed in legislative rules. For example, both the Senate Rules and the Rules of the House of Representatives require that a bill contain a fiscal analysis when reported favorably by a committee. See Fla. S. Rule 3.13 (1996); Fla. H.R. Rule 7.16 (1996). It may be unlikely, however, that rule provisions will be created. An earlier draft of the Committee Substitute for Senate Bills 2290 and 2288 would have created section 11.0751, Florida Statutes, requiring legislative consideration of delegated authority, but this was replaced with the current "intent" language during passage. See FLA. H.R. JOUR. 746 (Reg. Sess. 1996). Return to text.

[225] See supra text accompanying notes 194-204 for a discussion of section 120.536(2). Return to text.

[226] See FLA. STAT. § 120.56(3) (Supp. 1996). Return to text.

[227] Id. § 11.60(4). Return to text.