The 2023 Florida Statutes (including Special Session C)
|
||||||
|
To be sure, there are several statutes that spell out the requirements to which school boards must adhere when hiring employees, including the type of background screening that must be conducted and mandatory disqualifications from certain employment. See, e.g. , §§ 1001.42(5) – (7), 1012.315, 1012.32, 1012.465, Fla. Stat.; see also generally chapter 1012, part III, Fla. Stat. Moreover, arguably, the Legislature requires that school boards adopt their rules following the procedures set out in sections 120.536(1) and 120.54, Florida Statutes. See, e.g. , §§ 1001.41(2), 1001.42(28), Fla. Stat.; but cf. § 120.81(1), Fla. Stat. School boards’ rules and policies must be wholly consistent with legislatively established, statewide education policy. At the same time, the Legislature's imposition of these statutory obligations and restrictions regarding the school boards’ exercise of their constitutional authority is not the same as a legislative delegation of authority, and a rule governing the operation of schools that does not comport with the legislative directive could not become an invalid exercise of delegated authority.Section 947.1405(9), Florida Statutes, provides: “The commission shall adopt rules pursuant to sections 120.536( 1) and 120.54 necessary to implement the provisions of the Conditional Release Program Act.” “The traditional concept of unlawful delegation of legislative authority by the United States Congress . . . is not based on the idea of due process of law in the Fifth Amendment (taken over and applied against the states in the Fourteenth Amendment), but on the constitutional separation of powers.” United Beverage Co. of So. Bend, Inc. v. Indiana Alcoholic Bev. Comm'n, 760 F.2d 155, 157 (7th Cir. 1985) (string citations omitted). “The provisions of the federal constitution which delineate the powers of the three branches of the federal government have no application to the balance of powers in Florida's system of government, which is established in the state constitution.” Pacheco v. Dugger, 850 F.2d 1493, 1494 (11th Cir. 1988). See also Gray v. State, 791 So.2d 560, 252 (Fla. 5th DCA 2001) (holding that Section 947.1405(6), Florida Statutes, which authorizes the Commission to place an inmate on conditional release does not violate the state constitution's separation… " ‘Rulemaking authority’ means statutory language that explicitly authorizes or requires an agency to adopt, develop, establish, or otherwise create any statement coming within the definition of the term ‘rule,’ " and " ‘[l]aw implemented’ means the language of the enabling statute being carried out or interpreted by an agency through rulemaking." §§ 120.52(9), (17), Fla. Stat. "Section 120.536(1) and the flush-left paragraph in section 120.52(8) require a close examination of the statutes cited by the agency as authority for the rule at issue to determine whether those statutes explicitly grant the agency authority to adopt the rule." MB Doral, LLC , 295 So. 3d at 854 (internal citation omitted). "[T]he question is whether the statute contains a specific grant of legislative authority for the rule, not whether the grant of authority is specific enough. Either the enabling statute authorizes the rule at issue or it does not." Id. (internal citation omitted).(1) The department has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement its statutory authority. The rules must include rules relating to:An agency may not propose to create a rule that "enlarges, modifies, or contravenes the specific provisions of the law implemented." § 120.52(8)(c), Fla. Stat. It is not enough that the agency's rule is "reasonably related" to the Legislature's purpose or statutory provisions. § 120.536(1), Fla. Stat. The agency's rule and interpretation must comport with the specific authorizing statute. § 120.536(1), Fla. Stat.; State, Dep't of Children & Family Servs. v. I.B. , 891 So. 2d 1168, 1171 (Fla. 1st DCA 2005) ("No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation ... or [ ] within the agency's class of powers and duties."). A rule also must be consistent with the Legislature's statutory mandates. Cleveland v. Fla. Dep't of Children & Families Dist.: 07 Seminole Unit 55205 , 868 So. 2d 1227, 1231 (Fla. 1st DCA 2004). "Courts are not free to choose an interpretation they conclude is the best public policy, but must defer to the other branches." Fla. Dep't of Educ. v. Cooper , 858 So. 2d 394, 397 (Fla. 1st DCA 2003) ; see also § 120.68(7)(d), (e), Fla. Stat.The scope of an agency's rulemaking authority is constrained by section 120.536(1) and the so-called "flush-left paragraph" in section 120.52(8), which provide that an agency may only adopt rules to "implement or interpret the specific powers and duties granted by the [agency's] enabling statute"; that an agency may not adopt rules to "implement statutory provisions setting forth general legislative intent or policy" or simply because the rule "is reasonablyThe Board manages Florida Prepaid on behalf of all participants, not just Snyder. See § 1009.971, Fla. Stat. (2018). The Board's role is to administer Florida Prepaid as the program is created and amended by the Legislature. See State, Bd. of Trs. of the Internal Improvement Trust Fund v. Day Cruise Ass'n, Inc. , 794 So.2d 696, 700-01 (Fla. 1st DCA 2001) (recognizing most administrative agencies are creatures of statute and have only those powers the statutes confer). The Board implements the Legislature's vision for Florida Prepaid through the administrative rulemaking process. See §§ 120.52(8), 120.536, 1009.971(4)(aa) Fla. Stat. (2018). The preamble to the 03/04 MC makes clear the larger scope of the Board's responsibility:McDonald v. Dep't of Banking & Fin. , 346 So.2d 569, 581 (Fla. 1st DCA 1977) (emphasis added) (superseded by statute on other grounds). This principle gives effect to the fundamental proposition that the Florida Legislature alone makes statutory law, and confers on state agencies only limited authority to make rules that "implement or interpret the specific powers and duties granted by the enabling statute." § 120.536(1), Fla. Stat. (2018). No agency has "the authority to implement statutory provisions setting forth general legislative intent or policy." Id. Rulemaking requirements were never intended to "encompass virtually any utterance by an agency." McDonald, 346 So.2d at 581. Where a statute is clear and unambiguous and can be interpreted according to its plain meaning, there is neither authority nor need for agency rulemaking. Id.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. Stat. (2017). Section 120.536( 2)(c) states that if the repeal of law creates doubt as to whether a rule is enforceable, the Department of State shall treat the rule as provided by section 120.555, Florida Statutes. In turn, section 120.555 states that, if the Department of State doubts whether a rule "is still in full force and effect," it shall request a determination from the administering agency or the Governor as to whether the rule "is in full force and effect." § 120.555(1) - (2), Fla. Stat. (2017). Failure to respond to such request constitutes an acknowledgement that the rule is "no longer in effect," and the agency or Governor must also publish a notice of repeal if the rule is deemed to be "no longer in effect." § 120.555(2), (4), Fla. Stat. (2017). A rule's enforceability ultimately turns on the administering entity's determination of whether the rule is "in effect," a phrase used interchangeably with "in force" and "enforceable" in section 120.555. As rules "in effect… The statute authorizes the Department of Business and Professional Regulation to adopt rules that "regulate the operation of cardrooms." Id. § 849.086(4). But Florida construes grants of rulemaking authority much more narrowly than most jurisdictions. See Fla. Stat. § 120.536 ; see also Dep't of Bus. & Prof'l Regulation v. Calder Race Course, Inc. , 23 Fla. L. Weekly D1795 (Fla. 1st DCA July 29, 1988). One court has held that the Department may not adopt rules defining what is or is not a banked game within the meaning of § 849.086. See St. Petersburg Kennel Club v. Dep't of Bus. & Prof'l Regulation , 719 So.2d 1210 (Fla. 2d DCA 1998) ; see alsoDania Entertainment Center, LLC v. DBPR, Div. Pari–mutuel Wagering , Case No. 15–7010RP, at 43–44 (Fla. DOAH August 26, 2016), appeal filed,DBPR v. Dania Enter. Ctr., LLC , Case No. 1D16–4275 (Fla. 1st DCA Sep. 22, 2016); DBPR, Div. Pari–mutuel Wagering v. Jacksonville Kennel Club, Inc. , Case No. 16–1009, 38–42 (Fla. DOAH August 1, 2016). I assume without deciding that, as suggested by these authorities, the Department's rule authorizing player-banked games, Florida Administrative Code Rule 61D–11.002(5), is invalid.. . . See §§ 120.52(8), 120.536, 1009.971(4)(aa) Fla. Stat. (2018). . . .
. . . ." § 120.536(1), Fla. Stat. (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 . . .
. . . . § 120.536; see also Dep’t of Bus. & Prof'l Regulation v. Calder Race Course, Inc., 28 Fla. L. . . .
. . . (“The commission shall adopt rules under [§§ ] 120.536(1) and 120.54 [Florida Statutes] to develop and . . .
. . . 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. . . .
. . . . — 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 . . .
. . . . § 120.536(1), Fla. Stat. . . . . § 120.536(1), Fla. Stat.; State, Dep’t of Children & Family Sens, v. . . .
. . . Statutes (2013), expressly provides that the Board may, consistent with the requirements of section 120.536 . . .
. . . See § 120.536, Fla. Stat. (2011). . . .
. . . The Department was granted the “authority to adopt rules pursuant to [sections] 120.536(1) and 120.54 . . .
. . . .— The Chief Financial Officer may adopt rules pursuant to ss. 120.536(1) and 120.54 to implement this . . .
. . . . § 120.536(1), Fla. . . .
. . . . § 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). . . .
. . . Chiefs Association. (5) The Department of Environmental Protection may adopt rules pursuant to ss. 120.536 . . .
. . . Accord § 120.536(1), Fla. Stat. . . .
. . . Moreover, section 185.23(2) authorizes the DOR “to adopt rules pursuant to ss. 120.536(1) and 120.54 . . .
. . . Section 395.1055(l)(a) provides as follows: (1) The agency shall adopt rules pursuant to ss. 120.536( . . .
. . . 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 . . .
. . . only because it is reasonably related to the purpose of the enabling legislation.... ” §§ 120.52(8), 120.536 . . .
. . . Administrative Procedure Act regarding the scope of agency rulemaking authority, see sections 120.52(8) and 120.536 . . .
. . . .” § 120.536(1), Fla. Stat. (2002). . . .
. . . to effectuate the purposes, policies, and provisions of the code and to adopt rules pursuant to ss. 120.536 . . .
. . . 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 . . .
. . . administering the provisions of this chapter the governing board has authority to adopt rules pursuant to ss. 120.536 . . .
. . . . §§ 120.536 and 120.54. . . . § 548.003(2) to state explicitly that “[t]he commission has authority to adopt rules pursuant to § 120.536 . . .
. . . . §§ 120.536 and 120.54. . . . § 548.003(2) to state explicitly that "[t]he commission has authority to adopt rules pursuant to § 120.536 . . .
. . . In section 120.536, Florida Statutes (Supp. 1996), the legislature amended the Administrative Procedures . . .
. . . These standards are restated in section 120.536(1), Florida Statutes (Supp.1996), which contains additional . . .
. . . 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. . . . .