[**] Law Clerk to the Honorable John E. Steele, U.S. District Court, Middle District of Florida. B.A., University of North Florida, 1991; M.A., University of North Florida, 1994; J.D., Florida State University College of Law, 1998. The author extends special thanks to Professor Jim Rossi for his support and encouragement of all students of Florida administrative law. Return to text.

[1] See Act effective Oct. 1, 1996, ch. 96-159, 1996 Fla. Laws 147 (current version at FLA. STAT. ch. 120 (1997 & Supp. 1998)). Return to text.

[2] See General Tel. Co. of Fla. v. Florida Pub. Serv. Comm'n, 446 So. 2d 1063, 1067 (Fla. 1984) (applying the "reasonably related" test and citing FLA. STAT. з 350.172(2) (1981)). Return to text.

[3] See Act effective Oct. 1, 1996, ch. 96-159, з 3(8), 1996 Fla. Laws 147, 150 (current version at FLA. STAT. з 120.52(8) (Supp. 1998); id. з 9, 1996 Fla. Laws at 159 (current version at з FLA. STAT. з 120.536(1) (1997)). The new standard for agency rulemaking authority can first be found in the definition of "invalid exercise of delegated legislative authority" in section 120.52(8). The same language is repeated in section 120.536, which restates the new standard for rulemaking authority and also provides for a "look back" mechanism to address existing rules that may not adhere to the new standard. Return to text.

[4] 717 So. 2d 72 (Fla. 1st DCA 1998). Return to text.

[5] See id. at 76-77. Return to text.

[6] See id. at 75. Return to text.

[7] FLA. STAT. зз 120.52(8), .536(1) (Supp. 1996). Return to text.

[8] See Consolidated-Tomoka Land Co. v. St. Johns River Water Mgmt. Dist., DOAH Case No. 97-0870RP, at 59 (Final Order entered June 27, 1997) [hereinafter Final Order]. Return to text.

[9] Id. at 43-44. Return to text.

[10] See St. Johns River Water Mgmt. Dist. v. Consolidated-Tomoka Land Co., 717 So. 2d 72, 81 (Fla. 1st DCA 1998). Return to text.

[11] See discussion infra Part V.B.; see also Consolidated-Tomoka, 717 So. 2d at 79 (stating that "the phrase 'particular powers and duties' in section 120.52(8) could have more than one meaning"). Return to text.

[12] See discussion infra Part V.C. Return to text.

[13] See FLA. STAT. з 120.536(2) (Supp. 1998). Return to text.

[14] See discusssion infra Part V.D. Return to text.

[15] See discussion infra Part V.E. Return to text.

[16] See FLA. STAT з 120.54(1) (Supp. 1998). Return to text.

[17] See Mistretta v. United States, 488 U.S. 361, 372 (1989) ("So long as Congress >shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'" (quoting J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928))). Return to text.

[18] See generally SOTIRIOS A. BARBER, THE CONSTITUTION AND THE DELEGATION OF CONGRESSIONAL POWER (1975); DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION (1993); Samuel W. Cooper, Notes: Considering "Power" in Separation of Powers, 46 STAN. L. REV. 361 (1994); Kenneth Culp Davis, A New Approach to Delegation, 36 U. CHI. L. REV. 713 (1969); Thomas O. Sargentich, The Delegation Debate and Competing Ideals of the Administrative Process, 36 AM. U. L. REV. 419 (1987); J. Skelly Wright, Review: Beyond Discretionary Justice, 81 YALE L.J. 575 (1972). Return to text.

[19] See, e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 863 (1984) (concluding that Congress intentionally left certain policy decisions to the administrator in the area of environmental emissions because the competing interests in Congress could not agree); see also Yakus v. United States, 321 U.S. 414, 420 (1944) (upholding a statute that empowered an administrator to promulgate war-time price control standards that would be "generally fair and equitable and . . . effectuate the [enumerated] purposes of this Act"). Return to text.

[20] WALTER GELLHORN ET AL., ADMINISTRATIVE LAW 90 (8th ed. 1987); accord LOUIS L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 76-77 (1965) (suggesting that state courts are especially likely to strike down delegations as improper in situations involving real property or the practice of a profession, as the uncertainty of standards "encourages undetectable discrimination or subjective notions of policy"). Return to text.

[21] In reality, Florida courts generally uphold statutes that delegate authority to agencies as constitutional. See Johnny C. Burris, Administrative Law: 1991 Survey of Florida Law, 16 NOVA L. REV. 7, 11 (1991) (emphasizing that administrative agencies may not exercise any powers not expressly delegated to them). Return to text.

[22] See B.H. v. State, 645 So. 2d 987, 991-92 (Fla. 1994). The Florida Supreme Court has emphasized "that Florida has expressly and repeatedly rejected whatever federal doctrine can be said to exist regarding nondelegation." Id. at 992; accord Brown v. Apalachee Reg'l Planning Council, 560 So. 2d 782 (Fla. 1990); see also Department of Ins. v. Southeast Volusia Hosp. Dist., 438 So. 2d 815, 820 (Fla. 1983). Return to text.

[23] U.S. CONST. art. I, з 1. Return to text.

[24] FLA. CONST. art. II, з 3. Return to text.

[25] See id. art. III, з 1. Return to text.

[26] See id. art. V, з 1 (stating that "[c]ommissions 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.

[27] See JERRY L. MASHAW ET AL., ADMINISTRATIVE LAW: THE AMERICAN PUBLIC SYSTEM 56-57 (3d ed. 1992). Mashaw states:

The [Supreme] Court's reiteration of the nondelegation principle, coupled with its very sparing use to strike down legislation, illustrates a continuing judicial effort to harmonize the modern administrative state with traditional notions of representative government and the rule of law. It testifies also to a judicial sense . . . that legal techniques short of declaring statutes invalid are generally preferable means for accommodating the necessities of public policy with effective control of administrative discretion.

Id.; see also F. Scott Boyd, Legislative Checks on Rulemaking Under Florida's New APA, 24 FLA. ST. U. L. REV. 309, 313 (1997) (stating that despite the stringent limitation of lawmaking power contained in the Florida Constitution, "Florida courts have found the delegation of some lawmaking power to administrative agencies inevitable" (citing Jones v. Kind, 61 So. 2d 188, 190 (Fla. 1952))). Return to text.

[28] See Mistretta v. United States, 488 U.S. 361, 372 (1989) ("[I]n 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."); see also Askew v. Cross Key Waterways, 372 So. 2d 913, 924 (Fla. 1979) ("Flexibility by an administrative agency to administer a legislatively articulated policy is essential to meet the complexities of our modern society . . . ."); State v. Atlantic Coast Line R.R., 56 Fla. 617, 656-658, 47 So. 969, 982-84 (1908) (upholding an agency regulation imposing penalties for common carriers in the field of intrastate transportation). Return to text.

[29] There are many criticisms of the administrative process. See, e.g., PAUL J. QUIRK, INDUSTRY INFLUENCE IN FEDERAL REGULATORY AGENCIES 84-89 (1981) (agencies are susceptible of "capture" by private interest groups); Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 COLUM. L. REV. 1613, 1686-87 (1995) (agencies are scientifically incompetent); Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385 (1992) (agencies can be inflexible in their rulemaking); 1 KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE 27 (1958) (agencies are allowed excessive discretionary power). Return to text.

[30] See CORNELIUS M. KERWIN, RULEMAKING: HOW GOVERNMENT AGENCIES WRITE LAW AND MAKE POLICY 27-35 (1994); see also ARTHUR E. BONFIELD & MICHAEL ASIMOW, STATE AND FEDERAL ADMINISTRATIVE LAW 14-15 (1989); Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511, 1516-19 (1992). Return to text.

[31] See Reorganization Plan No. 3 of 1970, 84 Stat. 2086 (1970). Return to text.

[32] See FLA. STAT. з 120.54(1)(e) (Supp. 1998). Return to text.

[33] Id. з 120.54(1)(f). Return to text.

[41] Phillips Petroleum Co. v. Anderson, 74 So. 2d 544, 547 (Fla. 1954) (holding that a zoning ordinance prohibiting construction and operations if injurious to other properties and objectionable to neighbors failed to establish an intelligible principle for the guidance of the Building Inspector and the Board of Adjustment in the performance of their duties). Return to text.

[42] Delta Truck Brokers, Inc. v. King, 142 So. 2d 273, 275 (Fla. 1962) (holding that a statute authorizing the Florida Railroad and Public Utilities Commission to grant licenses delegated an unlimited discretion to the Commission to determine the best way in which the public interest would be served). Return to text.

[43] High Ridge Mgmt. Corp. v. State, 354 So. 2d 377, 380 (Fla. 1977) (finding that sections of the Omnibus Nursing Home Reform Act was an unlawful delegation of authority because the Act lacked "objective guidelines and standards for enforcement"). Return to text.

[44] Smith v. State, 537 So. 2d 982, 986 (Fla. 1989) (stating that legislative delegation of authority to agencies to promulgate rules implementing legislative enactments are valid if accompanied by adequate guidelines). Return to text.

[45] B.H. v. State, 645 So. 2d 987, 993 (Fla. 1994) (stating that the Legislature has exclusive power to decide reasonably definite standards used to implement policy). Return to text.

[46] Askew v. Cross Key Waterways, 372 So. 2d 913, 920 (Fla. 1978). The Legislature must provide this guidance because "flexibility in administration of a legislative program is essentially different from reposing in an administrative body the power to establish fundamental policy." Id. at 924. Return to text.

[47] Id. at 918-19. Return to text.

[48] Department of Citrus v. Griffin, 239 So. 2d 577, 581 (Fla. 1970) (upholding provisions of the Orange Stabilization Act and a subsequent Department of Citrus marketing order alleged to be an invalid delegation of legislative authority). Return to text.

[49] State v. Atlantic Coast Line R.R., 56 Fla. 617, 622, 47 So. 969, 971 (1908) (upholding the validity of a Railroad Commission rule alleged to be an invalid delegation of legislative authority); see also Florida East Coast Indus. Inc. v. Department of Comm'y Aff., 677 So. 2d 357, 361 (Fla. 1st DCA 1996); Florida League of Cities, Inc. v. Administration Comm'n, 586 So. 2d 397, 411 (Fla. 1st DCA 1991). Return to text.

[50] B.H., 645 So. 2d at 993 (citing Conner v. Joe Hatton, Inc., 216 So. 2d 209, 212 (Fla. 1968)). Return to text.

[51] See Boyd, supra note 27, at 314. Return to text.

[52] FLA. STAT. з 120.56 (1995). Return to text.

[53] 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, 302-03 (1997) (citing Department of Labor & Employ. Sec., Div. of Workers Comp. v. Bradley, 636 So. 2d 807 (Fla. 1st DCA 1994); State Dep't of Health & Rehab. Servs. v. Framat Realty, 407 So. 2d 238, 241 (Fla. 1st DCA 1981); Agrico Chem. Co. v. Department of Envtl Reg., 365 So. 2d 759, 762 (Fla. 1st DCA 1978)). Return to text.

[54] Generally applicable rulemaking procedures were (and still are) contained in section 120.54, Florida Statutes, though certain statutes may create different or additional rulemaking procedures. See FLA. STAT. з 120.54 (Supp. 1998); Boyd, supra note 27, at 332 n.140. Return to text.

[55] See, e.g., Grove Isle, Ltd. v. Department of Envtl. Reg., 454 So. 2d 571, 573 (Fla. 1st DCA 1984) (finding a Department of Environmental Regulation rule to be an invalid exercise of delegated authority because the rule exceeded the agency's delegated legislative authority by requiring applicants for a construction permit to demonstrate the "proposed activity or discharge is clearly in the public interest"). Return to text.

[56] See, e.g., Department of Bus. Reg. v. Salvation Ltd., 452 So. 2d 65, 66 (Fla. 1st DCA 1984) (finding a Division of Alcoholic Beverages and Tobacco rule invalid because it added to specifically listed statutory criteria); Department of HRS v. McTigue, 387 So. 2d 454, 457 (Fla. 1st DCA 1980) (striking down a Department of HRS rule because the rule modified specifically stated criteria for licensure eligibility). Return to text.

[57] See, e.g., Florida East Coast Indus., Inc. v. Department of Comm'y Aff., 677 So. 2d 357, 362 (Fla. 1st DCA 1996) (finding that rules proposed by the Department were not vague or without adequate standards). Return to text.

[58] See Florida League of Cities, Inc. v. Department of Envtl. Reg., 603 So. 2d 1363, 1367 (Fla. 1st DCA 1984) (noting that "section 120.52(8)(e) . . . relating to the term arbitrary or capricious, 'codifies the long established principle that administrative rules cannot be arbitrary or capricious, i.e., unsupported by logic, despotic or irrational'" (citing Fla. H.R. Comm. on Govtl. Ops., H.B. 710 & S.B. 608 (1987) Staff Analysis (Oct. 1, 1987))). Return to text.

[59] Department of Prof. Reg., Bd. of Med. Exam'rs v. Durrani, 455 So. 2d 515, 517 (Fla. 1st DCA 1984). Return to text.

[60] Id. Return to text.

[61] General Tel. Co. of Fla. v. Florida Pub. Serv. Comm'n, 446 So. 2d 1063, 1067 (Fla. 1984) (emphasis added) (citing Agrico Chem. Co. v. Department of Envtl. Reg., 365 So. 2d 759, 763 (Fla. 1st DCA 1978), and Florida Beverage Corp. v. Wynne, 306 So. 2d 200, 202 (Fla. 1st DCA 1975)). Return to text.

[62] See, e.g., Board of Optometry v. Florida Soc'y of Opthalmology, 538 So. 2d 878, 884 (Fla. 1st DCA 1988) (providing the requirements necessary for challenging parties to meet the heavy burden of showing that the agency exceeded its authority and that the rule is not appropriate to the ends of the legislative act or the purpose of the enabling statute but are arbitrary and capricious). Return to text.

[63] See APA COMM'N REPORT, supra note 36, at 23 (recommending that proposed rules not be clothed in a presumption of validity and that attorneys' fees should be awarded to successful challengers of rules). Return to text.

[64] See Donna E. Blanton & Robert M. Rhodes, Florida's Revised Administrative Procedure Act, FLA. B.J., July/Aug. 1996, at 30, 30. Return to text.

[65] See Rhea & Imhof, supra note 36, at 2-23 (summarizing the legislative history of the 1996 APA); Lawrence E. Sellers, Jr., The Third Time's the Charm: Florida Finally Enacts Rulemaking Reform, 48 FLA. L. REV. 93, 95-105 (1996) (same). Return to text.

[66] See Deborah K. Kearney & Kent Wetherell, The Practitioner's "Road Maps" to the Revised APA, FLA. B.J., Mar. 1997, at 53, 53. Return to text.

[67] See Donna E. Blanton & Robert M. Rhodes, Loosening the Chains that Bind: The New Waiver and Variance Provisions in Florida's Administrative Procedure Act, 24 FLA. ST. U. L. REV. 353, 353 (1997). Return to text.

[68] See Blanton & Rhodes, supra note 64, at 33-34. Return to text.

[69] See Sally Bond Mann, Legislative Reform of the Administrative Procedure Act: A Tale of Two Committees, FLA. B.J., July/Aug. 1994, at 57, 57. Return to text.

[70] Id. Return to text.

[71] Id. (quoting Letter from Sen. Pat Thomas, Senate President, to Sen. Charles Williams, Chair (Sept. 14, 1993)). Return to text.

[72] See Fla. SB 1440 (1994). Return to text.

[73] See Fla. HB 237 (1994) Return to text.

[74] See Sellers, supra note 65, at 97 & n.29. Return to text.

[75] See Fla. CS for CS for SB 536, з 11, at 45 (1995); see also Sellers, supra note 65, at 99-100; APA COMM'N REPORT, supra note 36, at 23. Return to text.

[76] See Fla. CS for CS for SB 536, з 11, at 45 (1995). Return to text.

[77] See id. at 46. Return to text.

[78] Second Committee Substitute for Senate Bill 536 was vetoed by Governor Chiles on July 12, 1995. See FLA. LEGIS., HISTORY OF LEGISLATION, 1995 REGULAR SESSION, HISTORY OF SENATE BILLS at 68; see also Craig Quintana, Chiles Scuttles Regulatory-Reform Bill, ORLANDO SENT., July 13, 1995, at C1. Return to text.

[79] See Rossi, supra note 53, at 277-78. Return to text.

[80] See FLA. STAT. з 120.535 (1995); Rossi, supra note 53, at 287; see also Sellers, supra note 65, at 100-01 (noting that the rationale for the Legislature's decision to retain section 120.535 was that the Legislature did not wish to return to the days of "phantom government"). Return to text.

[81] See Fla. Exec. Order No. 95-256 (July 12, 1995). Governor Chiles ordered agencies to review all rules and immediately repeal all obsolete rules in a previous executive order as well. See Fla. Exec. Order No. 95-74 (Feb. 27, 1995). Return to text.

[82] See APA COMM'N REPORT, supra note 36 (listing the names and occupations of the commissioners). Return to text.

[83] See FLA. STAT. з 120.535 (1995). Return to text.

[84] Governor Chiles was especially interested in lessening the number of administrative rules. See Rossi, supra note 53, at 287-88 (describing the Governor's efforts to reduce regulation). Section 120.535 mandated that all agency policies of general applicability be published as a rule. For the current version of this mandate, see FLA. STAT. з 120.54(1), (Supp. 1998). The Governor sent a copy of the book The Death of Common Sense: How Law Is Suffocating America by Philip K. Howard to every member of the Florida Legislature in February 1995. Governor Chiles advocated Howard's message by stating that "[t]he book identifies 'Public Enemy Number One' and that is the rules and regulations and the way we are presently applying them." Governor Lawton Chiles, State of the State Address, in FLA. H.R. JOUR. 23, 24 (Reg. Sess. Mar 7, 1995); see also Rhea & Imhof, supra note 36, at 8-11. Return to text.

[85] See Exec. Order No. 95-256 (July 12, 1995). Return to text.

[86] See APA COMM'N REPORT, supra note 36, at 1. Return to text.

[87] See id. at 6, 9-15. Return to text.

[88] Id. at 16. Return to text.

[89] See id. at 17. Return to text.

[90] See id. Return to text.

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

[92] See Rhea & Imhof, supra note 36, at 34. Return to text.

[93] See id. Return to text.

[94] Fla. H.R. Comm. on Govtl. Rules & Regs., CS for SB 2288 and 2290 (1996) Staff Analysis 25 (Jun. 14, 1996) (on file with comm.) (evaluating FLA. STAT. з 120.52(8) (Supp. 1996)). Return to text.

[95] See id. Return to text.

[96] Id. at 23-24, 25 (citing General Tel. Co. v. Florida Pub. Serv. Comm'n, 446 So. 2d 1063 (Fla. 1984); Department of Labor & Employ. Sec. v. Bradley, 636 So. 2d 802 (Fla. 1st DCA 1994); Florida Waterworks Ass'n v. Florida Public Serv. Comm'n, 473 So. 2d 237 (Fla. 1st DCA 1985); Department of Prof. Reg., Bd. of Med. Exam'rs v. Durrani, 455 So. 2d 515 (Fla. 1st DCA 1984); Agrico Chem. Co. v. Dep't of Envtl. Reg., 365 So. 2d 759 (Fla. 1st DCA 1978); Florida Beverage Corp. v. Wynne, 306 So. 2d 200 (Fla. 1st DCA 1975)). Return to text.

[97] See Act effective Oct. 1, 1996, ch. 96-159, 1996 Fla. Laws 147 (current version at FLA. STAT. ch. 120 (1997 & Supp. 1998)). Return to text.

[98] See Fla. H.R. Comm. on Govtl. Rules & Regs., CS for SB 2288 and 2290 (1996) Staff Analysis 1 (Jun. 14, 1996). Return to text.

[99] See APA COMM'N REPORT, supra note 36; see also Donna E. Blanton, Major Test of New APA Pending at First DCA, FLA. BAR ADMIN. L. SEC. NEWSLETTER, Jan. 1998, at 2. Return to text.

[100] See Boyd, supra note 27, at 310 (noting that although the amendments relating to legislative checks on the rulemaking process had drawn little attention, "they alone have the potential to substantially alter the structure of administrative law in Florida"); see also Rossi, supra note 53, at 296 (referring to the rulemaking restriction as "remarkable" and a serious limitation of agency authority). Return to text.

[101] Though the appeal was filed prior to that in Consolidated-Tomoka, the opinion in Department of Business and Professional Regulation v. Calder Race Course, Inc., 23 Fla. L. Weekly D1745 (Fla. 1st DCA July 29, 1998), was ultimately filed shortly after that of Consolidated-Tomoka. Return to text.

[102] See Ludmilla Lelis, A Ruling About the Rules; Environmental Case Could Limit the Bureaucracy, ORLANDO SENT., Nov. 30, 1997, at G1. Return to text.

[103] The land owners are Consolidated-Tomoka Land Co.; Indigo Development Group Inc.; Indigo Group Inc.; Indigo Group Ltd.; Patricia Lagoni as Trustee of Trust Nos. IDI-2, IDI-3, and IDI-4; Sea View Development Corp.; Leroy E. Folsom; James S. Whiteside, Jr., and Joan W. Whiteside; Susan Spear Root; Susan R. Graham and Chapman J. Root, II, Trustees of the Chapman S. Root 1982 Living Trust; Daniel P. S. Paul, Individually and as Trustee of the Daniel P. S. Paul Charitable Remainder Trust; Ava and Rufus, Inc.; and Samuel P. Bell, III, and Anne Moorman Reeves, as Tenants in Common. Return to text.

[104] The St. Johns River Water Management District is located in northeastern Florida. The remaining four water management districts are the Northwest Florida Water Management District, the Suwanee River Water Management District, the South Florida Water Management District, and the Southwest Florida Water Management District. For an overview of the various water management districts and the areas they oversee, see Florida Dep't of Envtl. Prot., Water Management Districts (visited Jan. 30, 1999) . Return to text.

[105] See FLA. STAT. ch 373 (1997 & Supp. 1998). Return to text.

[106] See FLA. STAT. зз 373.413, .416 (1997). Return to text.

[107] See Market Guide Snapshot for Consolidated-Tomoka Land (visited Mar. 17, 1999) . Return to text.

[108] Consolidated-Tomoka owns approximately 20,000 acres in the Tomoka River basin that would be affected by the proposed rules. See Lelis, supra note 102, at G1. Return to text.

[115] See Final Order, supra note 8, at 7. Return to text.

[110] See id. Return to text.

[111] See id. at 46-47. Return to text.

[112] See id. at 18, 20-22, 24, 25, 30. Return to text.

[113] See id. at 30. Return to text.

[114] See id. at 33-34. Return to text.

[115] The following were found to have exceeded the agency's grant of rulemaking authority: proposed rules 40C-4.091(1)(a), 40C-41.0011, 40C-41.023, and 40C-41.063(6)(a)-(d); and sections 11.0(e), 11.5, 11.5.1, 11.5.2, 11.5.3, 11.5.4, 18.1, and Appendix K of the HANDBOOK. See id. at 59. Proposed rules 40C-4.041(2)(b)3 and (2)(b)6, 40C-4.041(2)(g) (permit required thresholds), 40C-4.051(7) (exemptions), and 40C-41.052(2) (exemptions) were not invalidated. See id. Return to text.

[116] Due to the importance of the court's decision and the impact the ruling will have on various private and public interests, many amicus briefs were filed with the court. Those amici who filed briefs in support of the District included the Department of Environmental Protection, the Department of Legal Affairs/Attorney General, the Department of Community Affairs, the South Florida Water Management District, the Southwest Florida Water Management District, the Governor's Office, 1000 Friends of Florida, the Sierra Club, and the Florida Wildlife Federation. Amicus briefs supporting Consolidated-Tomoka were filed by a group of corporations and industry associations including the Florida Citrus Processors Ass'n; the Florida Fruit and Vegetable Ass'n; U.S. Sugar Corp.; Sunshine State Milk Producers; the Florida Forestry Ass'n; the Florida Fertilizer and Agrichemical Ass'n; the Florida Farm Bureau Federation; the Florida Poultry Federation, Inc.; the Florida Nurserymen and Growers Ass'n; Florida Citrus Mutual; the Florida Land Council, Inc.; and A. Duda and Sons, Inc. The Florida Legislature also submitted an amicus brief, mainly in response to the issue raised in the brief of the Governor's office that the Department of Administrative Hearings (DOAH) should not issue final orders in rule challenges. See Amicus Brief for the Florida Legislature at 3-7, Consolidated-Tomoka Land Co. v. St. Johns River Water Mgmt. Dist., 717 So. 2d 72 (Fla. 1st DCA 1998) (No. 97-2996). Return to text.

[117] See, e.g., Brief for Consolidated-Tomoka at 29-30, Brief of Amicus Curiae Florida Department of Environmental Protection at 12-13, Brief of Amicus Curiae Attorney General Department of Legal Affairs at 10-12, Consolidated-Tomoka (No. 97-2996) Return to text.

[118] See Amicus Brief for the Florida Legislature at 3, Consolidated-Tomoka (No. 97-2996). Return to text.

[119] FLA. STAT. з 120.536(1) (1997). Return to text.

[120] See generally General Tel. Co. v. Florida Pub. Serv. Comm'n, 446 So. 2d 1063 (Fla. 1984); Department of Labor and Employ. Sec. v. Bradley, 636 So. 2d 802 (Fla. 1st DCA 1994); Florida Waterworks Ass'n v. Florida Public Serv. Comm'n, 473 So. 2d 237 (Fla. 1st DCA 1985); Department of Prof'. Reg., Bd. of Med. Exam'rs v. Durrani, 455 So. 2d 515 (Fla. 1st DCA 1984); Agrico Chem. Co. v. State Dep't of Envtl. Prot., 365 So. 2d 759 (Fla. 1st DCA 1978); Florida Beverage Corp. v. Wynne, 306 So. 2d 200 (Fla. 1st DCA 1975). Return to text.

[121] Section 373.044, Florida Statutes, provided in part:

Rules and regulations; enforcement; availability of personnel rules.Ч

In administering this chapter, the governing board of the district is authorized to make and adopt reasonable rules, regulations, and orders which are consistent with law; and such rules, regulations, and orders may be enforced by mandatory injunction or other appropriate action in the courts of the state. FLA. STAT. з 373.044, (1995). Return to text.

[122] Id. з 373.113. Section 373.113 provided in part:

Adoption of regulations by the governing board.Ч In administering the provisions of this chapter the governing board shall adopt, promulgate, and enforce such regulations as may be reasonably necessary to effectuate its powers, duties, and functions pursuant to the provisions of chapter 120. Return to text.

[123] Id. з 373.418(3). Section 373.418(3) provided:

The department or governing boards may adopt such rules as are necessary to implement the provisions of this part. Such rules shall be consistent with state water policy and shall not allow harm to water resources or be contrary to the policy set forth in s. 373.016. Return to text.

[124] Id. з 373.413(1). Section 373.413(1) provided:

Permits for construction or alteration.Ч

(1) Except for the exemptions set forth herein, the governing board or the department may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto and will not be harmful to the water resources of the district. The department or the governing board may delineate areas within the district wherein permits may be required. Return to text.

[125] Id. з 373.416(1). Section 373.416(1) provided:

Permits for maintenance or operation.Ч

(1) Except for the exemptions set forth in this part, the governing board or department may require such permits and impose such reasonable conditions as are necessary to assure that the operation or maintenance of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto, will not be inconsistent with the overall objectives of the district, and will not be harmful to the water resources of the district. Return to text.

[126] FLA. STAT. з 120.536(1) (Supp. 1996). Return to text.

[127] Consolidated-Tomoka Land Co. v. St. Johns River Water Mgmt. Dist., 717 So. 2d 72, 79 (Fla. 1st DCA 1998). Return to text.

[128] Final Order, supra note 8, at 48. Return to text.

[129] Id. Return to text.

[130] Id. Return to text.

[131] Consolidated-Tomoka, 717 So.2d at 79. Return to text.

[132] Id. at 80. Return to text.

[133] See id. Return to text.

[134] 645 So. 2d 987 (Fla. 1994). Return to text.

[135] See id. at 994. Return to text.

[136] See id. at 993. Return to text.

[137] Id. Return to text.

[138] See id. (citing Askew v. Cross Key Waterways, 372 So. 2d 913, 924 (Fla. 1978)). Return to text.

[139] See FLA. STAT. зз 373.413(1), .416(1) (1997) (authorizing the Department of Environmental Protection and the water management districts to require permits for the construction, operation, and maintenance of specifically enumerated kinds of activities which could harm water resources). Return to text.

[140] See supra text accompanying notes 91-93. Return to text.

[141] See Brief for the Department of Community Affairs as Amicus Curiae at 8-11, Consolidated-Tomoka (No. 97-2996) (discussing the recent amendments to the Accessibility Act and the Building Codes Act). Return to text.

[142] Lelis, supra note 102, at G1 (quoting Florida State University College of Law Professor Jim Rossi). Return to text.

[143] Consolidated-Tomoka, 717 So. 2d at 76 (citing FLA. STAT. з 120.56(2)(a) (Supp. 1996), which required "the agency to establish the validity of a proposed rule once it has been properly challenged"). Return to text.

[144] See FLA. STAT. з 120.54(1)(a) (Supp. 1996). Return to text.

[145] See Act effective Jan. 1, 1992, ch. 91-30, з 3, 1990 Fla. Laws 241, 244 (codified at FLA. STAT. з 120.535 (1991), and current version at FLA. STAT. з 120.54(1) (Supp. 1998)); see also Rhea & Imhof, supra note 36, at 5-7. Return to text.

[146] See FLA. STAT. з 120.54(1) (Supp. 1998) (requiring rulemaking); id. з 120.52(15) (1997 & Supp. 1998) (defining agency statements that meet the definition of a rule). See, e.g., Matthews v. Weinberg, 645 So. 2d 487, 489 (Fla. 2d DCA 1994) (concluding that HRS exceeded its rulemaking authority by enacting policies dealing with homosexual and unmarried couples without following statutory rulemaking procedures). Return to text.

[147] See discussion supra Part IV.B. Return to text.

[148] See Consolidated-Tomoka, 717 So. 2d at 80. Return to text.

[149] Id. (emphasis added). Return to text.

[150] FLA. STAT. зз 120.536, .54 (Supp. 1996). Return to text.

[151] Consolidated-Tomoka, 717 So. 2d at 80. Return to text.

[152] Id. at 81. Return to text.

[153] See FLA. STAT. зз 373.413, .416 (1995). Return to text.

[154] See Consolidated-Tomoka, 717 So. 2d at 75. Return to text.

[155] See Blanton, supra note 99, at 2 ("The Governor's Office brief initially questioned-in a footnoteЧthe validity of section 120.54(4)(c), which gives final order authority to ALJs in rule challenge cases. The brief suggests that ALJs should only enter recommended orders in rule challenges, as they do in adjudicatory matters."). Return to text.

[156] See FLA. STAT. з 120.54 (Supp. 1998). Parties may choose to wait the prescribed period of time until the agency action becomes final to seek judicial review, but the lack of a record may be damaging. Return to text.

[157] See id. з 120.54(c). Return to text.

[158] See id. з 120.57 (stating the procedure for an appeal of agency adjudication). Return to text.

[159] See Department of Admin. v. Stevens, 344 So. 2d 290, 291 (Fla. 1st DCA 1977) (upholding an ALJ's final order which concluded the Department's guidelines were rules that were improperly adopted and thus invalid). Return to text.

[160] 344 So. 2d 290 (Fla. 1st DCA 1977). Return to text.

[161] See id. at 294. Return to text.

[162] See id. at 292. Return to text.

[163] Id. at 294 (quoting 1 KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE 68 (1958)). Return to text.

[164] Stevens, 344 So. 2d at 293 (citing FLA. CONST. art. V, з 1). Return to text.

[165] See DAVIS, supra note 29, at 68. Return to text.

[166] See FLA. STAT. з 120.57(1)(l) (Supp. 1998), stating in part:

The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules over which it has substantive jurisdiction. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. Return to text.

[167] See id. з 120.56(2)(c). Return to text.

[168] 467 U.S. 837 (1984). Return to text.

[169] See id. at 845. Return to text.

[170] See id. at 843-44. Return to text.

[171] See id. at 843. Return to text.

[172] See id. at 844. Return to text.

[173] See id. Return to text.

[174] 407 So. 2d 238 (Fla. 1st DCA 1981). Return to text.

[175] Id. at 239. Return to text.

[176] Id. at 241. Return to text.

[178] See id.

See id. Return to text.

[179] 434 So. 2d 908 (Fla. 1st DCA 1983). Return to text.

[180] See id. at 911 (invalidating a rule of the Department of Insurance that prohibited varying insurance rates based upon sex, marital status, or scholastic achievement of the insured). Return to text.

[181] See id. at 914. Return to text.

[182] Id. at 916-17 (Smith, C.J., dissenting). Return to text.

[183] Id. at 927 (Smith, C.J., dissenting).

184> 424 So. 2d 852 (Fla. 1st DCA 1982). Return to text.

[185] See id. at 918-19 (citing Nelson, 424 So. 2d at 858). The court in Nelson reversed a hearing officer's order invalidating an agency rule as being beyond its legislative authority and reiterated the principle that "when the agency committed with statutory authority to implement a statute has construed the statute in a permissible way under APA disciplines, that interpretation will be sustained though another interpretation may be possible. When the agency so interprets the statute through rulemaking, the presumption of correctness is stronger." Nelson, 424 So. 2d at 858. Return to text.

[186] Insurance Servs. Office, 434 So. 2d at 927 (Smith, C.J., dissenting). Return to text.

[187] 553 So. 2d 1260 (Fla. 1st DCA 1989). Return to text.

[188] Id. at 1274. Return to text.

[189] See FLA. STAT. з 120.536(2) (1997) (requiring each agency to review rules and to provide a listing to the Joint Administrative Procedures Committee (JAPC) of each rule or portion thereof which exceeds the new rulemaking authority standard by October 1, 1997). Return to text.

[190] See Lelis, supra note 102, at G1. Return to text.

[191] See FLA. STAT. з 120.536(2) (1997). Return to text.

[192] See Robert M. Rhodes, FLA. BAR ADMIN. L. SEC. NEWSLETTER, Jan. 1998, at 1. Return to text.

[193] See id. Return to text.

[194] See FLA. STAT. з120.536(2) (1997). Thirty-six "Rules Authorization Bills" were introduced in the 1998 Legislature, 29 of which passed and became law. See generally Legislative Information Services, Final 1998 Bill Citator (visited Jan. 22, 1999) leg. state.fl.us/session/1998/citator/final/subind ex.pdf>. Return to text.

[195] See FLA. STAT. з120.536(2) (1997). Return to text.

[196] 462 U.S. 919 (1983). Return to text.

[197] See id. at 923. Return to text.

[198] See id. at 925 (describing the effect of 8 U.S.C. з 1254(c)(2)). Return to text.

[199] See id. at 953. Return to text.

[200] See id. at 953-54. Return to text.

[201] See FLA. STAT. з 120.536(2) (1997). Return to text.

[202] See Regulatory Reform Act of 1995, 1995 Wash. Legis. Serv. Ch. 403 (West). Return to text.

[203] Id. з 1. Return to text.

[204] See WASH. REV. CODE з 43.12.045 (1997) (addressing the Commissioner of Public Lands); id. з 43.20A.075 (addressing the Secretary of Social and Health Services); id. з 43.23.025 (addressing the Director of Agriculture); id. з 43.24.023 (addressing the Director of the Department of Licensing); id. з 43.70.040 (addressing the Secretary of Health). Return to text.

[205] See William R. Andersen, Of Babies and BathwaterЧWashington's Experiment with Regulatory Reform, ADMIN. & REG. L. NEWS, Fall 1996, at 15. Return to text.

[206] See id. Return to text.

[207] See id. Return to text.

[208] See Rossi, supra note 53, at 304 (stating that agencies will abandon rulemaking to the extent that Florida law allows). But see FLA. STAT. з 120.54(1)(a) (Supp. 1998) (stating that rulemaking is not a matter of agency discretion and that agencies shall adopt agency statements that meet the definition of a "rule" as a rule as soon as feasible and practicable). See also Matthews v. Weinberg, 645 So. 2d 487, 489 (Fla. 2d DCA 1994) (finding that HRS exceeded delegated authority by applying policies of general applicability and not rulemaking procedures). Return to text.

[209] See FLA. STAT. з 120.595(2), (3) (1997). Attorney's fees may be awarded in challenges to proposed rules and existing rules, unless the agency can show its actions were "substantially justified." Id. An agency's actions are "substantially justified" if there was "a reasonable basis in law and fact at the time the actions were taken by the agency." Id. Return to text.

[210] See APA COMM'N REPORT, supra note 36, at 19 ("The Commission believes that published rules help provide certainty to the regulated community and also help inform the general public of an agency's policies. The rulemaking process provides interested persons the opportunity to comment on proposed rules and give necessary input to an agency as it develops its policies."). Return to text.

[211] FLA. STAT. з 120.52(15) (Supp. 1998) (defining "rule"). Return to text.

[212] Id. з 120.54(1)(a) (setting forth the presumption of rulemaking). Return to text.

[213] See Act of May 23, 1995, ch. 233, 1995 Minn. Sess. Law Serv. Ch. 233, art. 2, з 12 (West) (codified at MINN. STAT. з 14.125 (1997)). Return to text.

[214] See MINN. STAT. з 14.125 (1997). Return to text.

[215] See id. Return to text.

[216] See FLA. STAT. з 120.54(1)(b) (Supp. 1998). Return to text.

[217] Section 120.54(1)(b) is applicable to all rules other than emergency rules. See id. з 120.54(1). Return to text.

[218] Section 120.54(1)(b) only requires that necessary rules be "drafted and formally proposed" within the 180-day window. Return to text.

[219] See id. з 120.54(1)(a) (requiring rulemaking as soon as "feasible and practicable"). Return to text.

[220] See S. 343, 104th Cong. з 627 (1995). Return to text.

[221] Id. Return to text.

[222] Id. Return to text.

[223] See Lelis, supra note 102, at G1 (quoting Scott Boyd, senior staff attorney for JAPC). Return to text.

[224] 23 Fla. L. Weekly D1795 (Fla. 1st DCA July 29, 1998). Return to text.

[225] See id. Return to text.

[226] Id. Return to text.

[227] Calder Race Course, Inc., Tropical Park, Inc., Gulfstream Racing Association, Investment Corporation of Florida, Florida Horsemen=s Benevolent Association, Inc., and the Florida Veterinary Medical Association were either petitioners or intervenors in the rule challenge itself. Initial Brief of Appellant at 1, Department of Bus. & Prof. Reg. v. Calder Race Course, Inc., 23 Fla. L. Weekly D1745 (Fla. 1st DCA July 29, 1998) (No. 97-2705). Return to text.

[228] See id. (discussing proposed rule 61D-2.002). Return to text.

[229] Calder, 23 Fla. L. Weekly at D1795. Return to text.

[230] Id. at D1797. Return to text.