The 2023 Florida Statutes (including Special Session C)

Title X
PUBLIC OFFICERS, EMPLOYEES, AND RECORDS

Chapter 120
ADMINISTRATIVE PROCEDURE ACT

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F.S. 120.536

120.536 Rulemaking authority; repeal; challenge.—

(1) A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency’s class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the enabling statute.

(2) Unless otherwise expressly provided by law:

(a) The repeal of one or more provisions of law implemented by a rule that on its face implements only the provision or provisions repealed and no other provision of law nullifies the rule. Whenever notice of the nullification of a rule under this subsection is received from the committee or otherwise, the Department of State shall remove the rule from the Florida Administrative Code as of the effective date of the law effecting the nullification and update the historical notes for the code to show the rule repealed by operation of law.

(b) The repeal of one or more provisions of law implemented by a rule that on its face implements the provision or provisions repealed and one or more other provisions of law nullifies the rule or applicable portion of the rule to the extent that it implements the repealed law. The agency having authority to repeal or amend the rule shall, within 180 days after the effective date of the repealing law, publish a notice of rule development identifying all portions of rules affected by the repealing law, and if no notice is timely published the operation of each rule implementing a repealed provision of law shall be suspended until such notice is published.

(c) The repeal of one or more provisions of law that, other than as provided in paragraph (a) or paragraph (b), causes a rule or portion of a rule to be of uncertain enforceability requires the Department of State to treat the rule as provided by s. 120.555. A rule shall be considered to be of uncertain enforceability under this paragraph if the division notifies the Department of State that a rule or a portion of the rule has been invalidated in a division proceeding based upon a repeal of law, or the committee gives written notification to the Department of State and the agency having power to amend or repeal the rule that a law has been repealed creating doubt about whether the rule is still in full force and effect.

(3) The Administrative Procedures Committee or any substantially affected person may petition an agency to repeal any rule, or portion thereof, because it exceeds the rulemaking authority permitted by this section. Not later than 30 days after the date of filing the petition if the agency is headed by an individual, or not later than 45 days if the agency is headed by a collegial body, the agency shall initiate rulemaking proceedings to repeal the rule, or portion thereof, or deny the petition, giving a written statement of its reasons for the denial.

(4) Nothing in this section shall be construed to change the legal status of a rule that has otherwise been judicially or administratively determined to be invalid.

History.—s. 9, ch. 96-159; s. 3, ch. 99-379; s. 15, ch. 2000-151; s. 15, ch. 2005-2; s. 4, ch. 2008-104; s. 1, ch. 2012-31.

F.S. 120.536 on Google Scholar

F.S. 120.536 on Casetext

Amendments to 120.536

Arrestable Offenses / Crimes under Fla. Stat. 120.536

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 120.536.

Annotations, Discussions, Cases:

Cases from cite.case.law:

SNYDER, v. FLORIDA PREPAID COLLEGE BOARD,, 269 So. 3d 586 (Fla. App. Ct. 2019)

. . . See §§ 120.52(8), 120.536, 1009.971(4)(aa) Fla. Stat. (2018). . . .

GRABBA- LEAF, LLC, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,, 257 So. 3d 1205 (Fla. App. Ct. 2018)

. . . ." § 120.536(1), Fla. Stat. (2018). . . .

ORLANDO HEALTH CENTRAL, INC. v. AGENCY FOR HEALTH CARE ADMINISTRATION, d b a LLC,, 252 So. 3d 849 (Fla. App. Ct. 2018)

. . . Chapter 120 does not define "enforceable," and only uses a variant of the term in section 120.536, when . . . discussing rules of "uncertain enforceability." § 120.536(2)(c), Fla. . . . Section 120.536(2)(c) states that if the repeal of law creates doubt as to whether a rule is enforceable . . .

SEMINOLE TRIBE OF FLORIDA, v. FLORIDA,, 219 F. Supp. 3d 1177 (N.D. Fla. 2016)

. . . . § 120.536; see also Dep’t of Bus. & Prof'l Regulation v. Calder Race Course, Inc., 28 Fla. L. . . .

KEDDO ENTERPRISES, LLC, v. FLORIDA BUILDING COMMISSION,, 175 So. 3d 346 (Fla. Dist. Ct. App. 2015)

. . . (“The commission shall adopt rules under [§§ ] 120.536(1) and 120.54 [Florida Statutes] to develop and . . .

UNITED FACULTY OF FLORIDA, v. FLORIDA STATE BOARD OF EDUCATION,, 157 So. 3d 514 (Fla. Dist. Ct. App. 2015)

. . . The scope of an agency’s rulemaking authority is constrained by section 120.536(1) and the so-called . . . Section 120.536(1) and the flush-left paragraph in section 120.52(8) require a close examination of the . . . See §§ 120.52(8), 120.536(1), Fla. Stat. . See, e.g., § 1000.02, Fla. Stat. . . .

ROBINSON, v. STEWART,, 161 So. 3d 589 (Fla. Dist. Ct. App. 2015)

. . . . — The State Board of Education shall adopt rules pursuant to ss. 120.536(1) and 120.54 which establish . . . 2011), (as initially enacted) provided: The State Board of Education shall adopt rules pursuant to ss. 120.536 . . . The identical language was included in section 120.536(1), Florida Statutes (Supp. 1996). . . . response to the decision in Consolidated-Tomoka, the Legislature again amended sections 120.52(8) and 120.536 . . . Legislature amended the "flush left” paragraph of section 120.52(8) and parallel language in section 120.536 . . .

G. B. Z. L. K. L. J. H. M. R. v. AGENCY FOR PERSONS WITH DISABILITIES,, 143 So. 3d 454 (Fla. Dist. Ct. App. 2014)

. . . . § 120.536(1), Fla. Stat. . . . . § 120.536(1), Fla. Stat.; State, Dep’t of Children & Family Sens, v. . . .

DIAZ RUSSELL CORPORATION, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,, 140 So. 3d 662 (Fla. Dist. Ct. App. 2014)

. . . Statutes (2013), expressly provides that the Board may, consistent with the requirements of section 120.536 . . .

FLORIDA CARRY, INC. v. UNIVERSITY OF NORTH FLORIDA,, 133 So. 3d 966 (Fla. Dist. Ct. App. 2013)

. . . See § 120.536, Fla. Stat. (2011). . . .

H. ATWATER, v. CITY OF CAPE CORAL R. H. v. H. v. f k a, 120 So. 3d 595 (Fla. Dist. Ct. App. 2013)

. . . The Department was granted the “authority to adopt rules pursuant to [sections] 120.536(1) and 120.54 . . .

STATE DEPARTMENT OF FINANCIAL SERVICES, v. PETER R. BROWN CONSTRUCTION, INC., 108 So. 3d 723 (Fla. Dist. Ct. App. 2013)

. . . .— The Chief Financial Officer may adopt rules pursuant to ss. 120.536(1) and 120.54 to implement this . . .

SUBIRATS, v. FIDELITY NATIONAL PROPERTY,, 106 So. 3d 997 (Fla. Dist. Ct. App. 2013)

. . . . § 120.536(1), Fla. . . .

WHILEY, v. SCOTT,, 79 So. 3d 702 (Fla. 2011)

. . . . § 120.536(1), Fla. Stat. (2010). . . . Comm’n., 464 So.2d 1189, 1191 (Fla.1985); see also § 120.536(1), Fla. Stat. (2010). . . . Section 120.536 provides in pertinent part as follows: (1) A grant of rulemaking authority is necessary . . . than implementing or interpreting the specific powers and duties conferred by the enabling statute. § 120.536 . . . .” § 120.536(1), Fla. Stat. (2010). . . .

T. BROWN T. Jr. v. CITY OF VERO BEACH, 64 So. 3d 172 (Fla. Dist. Ct. App. 2011)

. . . Chiefs Association. (5) The Department of Environmental Protection may adopt rules pursuant to ss. 120.536 . . .

FLORIDA ELECTIONS COMMISSION, v. L. BLAIR,, 52 So. 3d 9 (Fla. Dist. Ct. App. 2010)

. . . Accord § 120.536(1), Fla. Stat. . . .

CITY OF ST. PETERSBURG St. v. REMIA,, 41 So. 3d 322 (Fla. Dist. Ct. App. 2010)

. . . Moreover, section 185.23(2) authorizes the DOR “to adopt rules pursuant to ss. 120.536(1) and 120.54 . . .

TARPON SPRINGS HOSPITAL FOUNDATION, INC. a d b a v. RETH, CRNA CRNA D. O. P. A. a a d b a v., 40 So. 3d 823 (Fla. Dist. Ct. App. 2010)

. . . Section 395.1055(l)(a) provides as follows: (1) The agency shall adopt rules pursuant to ss. 120.536( . . .

FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, d b a v. JM AUTO, INC. d b a JM, 977 So. 2d 733 (Fla. Dist. Ct. App. 2008)

. . . administer and enforce the provisions of this chapter and has authority to adopt rules pursuant to ss. 120.536 . . . determination that this general grant of authority was insufficient under sections 120.52(8)(b) and 120.536 . . .

STATE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, v. I. B. D. B., 891 So. 2d 1168 (Fla. Dist. Ct. App. 2005)

. . . only because it is reasonably related to the purpose of the enabling legislation.... ” §§ 120.52(8), 120.536 . . .

LENNAR HOMES, INC. v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES,, 888 So. 2d 50 (Fla. Dist. Ct. App. 2004)

. . . Administrative Procedure Act regarding the scope of agency rulemaking authority, see sections 120.52(8) and 120.536 . . .

STATE v. MONTELLO P., 867 So. 2d 613 (Fla. Dist. Ct. App. 2004)

. . . .” § 120.536(1), Fla. Stat. (2002). . . .

BETTS, v. ADVANCE AMERICA,, 213 F.R.D. 466 (M.D. Fla. 2003)

. . . to effectuate the purposes, policies, and provisions of the code and to adopt rules pursuant to ss. 120.536 . . .

STATE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, v. DAY CRUISE ASSOCIATION, INC., 794 So. 2d 696 (Fla. Dist. Ct. App. 2001)

. . . response to the decision in Consolidated-Tomoka, the Legislature again amended sections 120.52(8) and 120.536 . . . Legislature amended the “flush left” paragraph of section 120.52(8) and parallel language in section 120.536 . . . (codified respectively at §§ 120.52(8), 120.536(1), Fla. Stat. (1999)). . . . Board of Trustees of the Internal Improvement Trust Fund has authority to adopt rules pursuant to ss. 120.536 . . . The first sentence of 120.536(1) states that “[a] grant of rulemaking authority is necessary but not . . .

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT v. CHARLOTTE COUNTY,, 774 So. 2d 903 (Fla. Dist. Ct. App. 2001)

. . . administering the provisions of this chapter the governing board has authority to adopt rules pursuant to ss. 120.536 . . .

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a v. FLORIDA STATE ATHLETIC COMMISSION,, 226 F.3d 1226 (11th Cir. 2000)

. . . . §§ 120.536 and 120.54. . . . § 548.003(2) to state explicitly that “[t]he commission has authority to adopt rules pursuant to § 120.536 . . .

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a v. FLORIDA STATE ATHLETIC COMMISSION,, 226 F.3d 1226 (11th Cir. 2000)

. . . . §§ 120.536 and 120.54. . . . § 548.003(2) to state explicitly that "[t]he commission has authority to adopt rules pursuant to § 120.536 . . .

ST. PETERSBURG KENNEL CLUB, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI- MUTUEL WAGERING,, 719 So. 2d 1210 (Fla. Dist. Ct. App. 1998)

. . . In section 120.536, Florida Statutes (Supp. 1996), the legislature amended the Administrative Procedures . . .

ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, v. CONSOLIDATED- TOMOKA LAND CO. IDI- IDI- IDI- E. S. Jr. W. R. J. II, S. P. S. P. S. P. III, 717 So. 2d 72 (Fla. Dist. Ct. App. 1998)

. . . These standards are restated in section 120.536(1), Florida Statutes (Supp.1996), which contains additional . . .

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, v. CALDER RACE COURSE, INC. a a a, 724 So. 2d 100 (Fla. Dist. Ct. App. 1998)

. . . authorized by section 550.0251, Florida Statutes, under the 1996 amendments to sections 120.52(8) and 120.536 . . . principle had been repealed by the 1996 amendments to section 120.52(8) and the creation of section 120.536 . . . Appellant first argues that the ALJ erred in her interpretation of sections 120.52(8) and 120.536(1), . . . If the rule is to pass the test demanded by sections 120.52(8) and 120.536(1), it must do so through . . . Section 120.536(1) contains identical language. . . . .