Florida Statute 120.542 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title X
PUBLIC OFFICERS, EMPLOYEES, AND RECORDS

Chapter 120
ADMINISTRATIVE PROCEDURE ACT

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F.S. 120.542

120.542 Variances and waivers.—

(1) Strict application of uniformly applicable rule requirements can lead to unreasonable, unfair, and unintended results in particular instances. The Legislature finds that it is appropriate in such cases to adopt a procedure for agencies to provide relief to persons subject to regulation. A public employee is not a person subject to regulation under this section for the purpose of petitioning for a variance or waiver to a rule that affects that public employee in his or her capacity as a public employee. Agencies are authorized to grant variances and waivers to requirements of their rules consistent with this section and with rules adopted under the authority of this section. An agency may limit the duration of any grant of a variance or waiver or otherwise impose conditions on the grant only to the extent necessary for the purpose of the underlying statute to be achieved. This section does not authorize agencies to grant variances or waivers to statutes or to rules required by the Federal Government for the agency’s implementation or retention of any federally approved or delegated program, except as allowed by the program or when the variance or waiver is also approved by the appropriate agency of the Federal Government. This section is supplemental to, and does not abrogate, the variance and waiver provisions in any other statute.

(2) Variances and waivers shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness. For purposes of this section, “substantial hardship” means a demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver. For purposes of this section, “principles of fairness” are violated when the literal application of a rule affects a particular person in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule.

(3) The Governor and Cabinet, sitting as the Administration Commission, shall adopt uniform rules of procedure pursuant to the requirements of s. 120.54(5) establishing procedures for granting or denying petitions for variances and waivers. The uniform rules shall include procedures for the granting, denying, or revoking of emergency and temporary variances and waivers. Such provisions may provide for expedited timeframes, waiver of or limited public notice, and limitations on comments on the petition in the case of such temporary or emergency variances and waivers.

(4) Agencies shall advise persons of the remedies available through this section and shall provide copies of this section, the uniform rules on variances and waivers, and, if requested, the underlying statute, to persons who inquire about the possibility of relief from rule requirements.

(5) A person who is subject to regulation by an agency rule may file a petition with that agency, with a copy to the committee, requesting a variance or waiver from the agency’s rule. In addition to any requirements mandated by the uniform rules, each petition shall specify:

(a) The rule from which a variance or waiver is requested.

(b) The type of action requested.

(d) The reason why the variance or the waiver requested would serve the purposes of the underlying statute.

(6) Within 15 days after receipt of a petition for variance or waiver, an agency shall provide notice of the petition to the Department of State, which shall publish notice of the petition in the first available issue of the Florida Administrative Register. The notice shall contain the name of the petitioner, the date the petition was filed, the rule number and nature of the rule from which variance or waiver is sought, and an explanation of how a copy of the petition can be obtained. The uniform rules shall provide a means for interested persons to provide comments on the petition.

(7) Except for requests for emergency variances or waivers, within 30 days after receipt of a petition for a variance or waiver, an agency shall review the petition and request submittal of all additional information that the agency is permitted by this section to require. Within 30 days after receipt of such additional information, the agency shall review it and may request only that information needed to clarify the additional information or to answer new questions raised by or directly related to the additional information. If the petitioner asserts that any request for additional information is not authorized by law or by rule of the affected agency, the agency shall proceed, at the petitioner’s written request, to process the petition.

(8) An agency shall grant or deny a petition for variance or waiver within 90 days after receipt of the original petition, the last item of timely requested additional material, or the petitioner’s written request to finish processing the petition. A petition not granted or denied within 90 days after receipt of a completed petition is deemed approved. A copy of the order granting or denying the petition shall be filed with the committee and shall contain a statement of the relevant facts and reasons supporting the agency’s action. The agency shall provide notice of the disposition of the petition to the Department of State, which shall publish the notice in the next available issue of the Florida Administrative Register. The notice shall contain the name of the petitioner, the date the petition was filed, the rule number and nature of the rule from which the waiver or variance is sought, a reference to the place and date of publication of the notice of the petition, the date of the order denying or approving the variance or waiver, the general basis for the agency decision, and an explanation of how a copy of the order can be obtained. The agency’s decision to grant or deny the petition shall be supported by competent substantial evidence and is subject to ss. 120.569 and 120.57. Any proceeding pursuant to ss. 120.569 and 120.57 in regard to a variance or waiver shall be limited to the agency action on the request for the variance or waiver, except that a proceeding in regard to a variance or waiver may be consolidated with any other proceeding authorized by this chapter.

(9) Each agency shall maintain a record of the type and disposition of each petition, including temporary or emergency variances and waivers, filed pursuant to this section.

History.—s. 12, ch. 96-159; s. 5, ch. 97-176; s. 37, ch. 2010-102; s. 5, ch. 2013-14.

F.S. 120.542 on Google Scholar

F.S. 120.542 on Casetext

Amendments to 120.542

Arrestable Offenses / Crimes under Fla. Stat. 120.542

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

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 120.542.

Annotations, Discussions, Cases:

Cases Citing Statute 120.542

Total Results: 9

LIGHTSEY CATTLE COMPANY v. FLORIDA FISH AND WILDLIFE CONSERVATIVE COMMISSION

Court: Fla. Dist. Ct. App. | Date Filed: 2024-07-12T00:00:00-07:00

Snippet: on whether the Commission is bound by section 120.542 of the APA, which concerns variances and waivers…Commission has adopted and is bound by section 120.542. See note 6, supra.

State, Department of Environmental Protection v. Beach Group Investments, LLC

Court: Fla. Dist. Ct. App. | Date Filed: 2016-08-03T00:00:00-07:00

Citation: 201 So. 3d 679, 2016 Fla. App. LEXIS 11735

Snippet: request for a variance or waiver under Section 120.542, Florida Statutes— A variance or waiver must be…in interpreting the governing statute. Section 120.542, Florida Statutes, makes a distinction between …requirements of [agency] rules,” which are permitted. § 120.542(1), Fla. Stat. The trial court concluded that because…request for a variance or waiver under Section 120.542, Florida Statutes. See Pet. Ex. 21 (identifying

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Court: Fla. Att'y Gen. | Date Filed: 2007-01-25T23:53:00-08:00

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

PANDA ENERGY INTERN. v. Jacobs

Court: Fla. | Date Filed: 2002-02-20T23:53:00-08:00

Citation: 813 So. 2d 46

Snippet: See § 120.542(2), (5), Fla. Stat. (2000); Fla. Admin. Code R. 28-104.002. Under section 120.542(2), the

State, Board of Trustees of the Internal Improvement Trust Fund v. Day Cruise Ass'n

Court: Fla. Dist. Ct. App. | Date Filed: 2001-11-02T00:00:00-08:00

Citation: 798 So. 2d 847, 2001 Fla. App. LEXIS 15599, 2001 WL 1344079

Snippet: of section 120.542, Florida Statutes (1997). The court decided “that the section 120.542, Florida Statutes…right to seek a waiver or variance under section 120.542.” Id. at 1124 (Benton, J., dissenting). Here the

University of South Florida ex rel. Florida Board of Regents v. Department of Children & Family Services

Court: Fla. Dist. Ct. App. | Date Filed: 2001-05-18T00:00:00-07:00

Citation: 787 So. 2d 223, 2001 Fla. App. LEXIS 7003, 2001 WL 523523

Snippet: argues, and we agree, that pursuant to section 120.542, Florida Statuteá (1999), if USF finds that certain

Fla. Dept. of Bus. Reg. v. Invest. Corp.

Court: Fla. | Date Filed: 1999-11-04T00:00:00-08:00

Citation: 747 So. 2d 374

Snippet: implicated in this case, the addition of section 120.542 has other commentators lauding the inherent flexibility…The new variance and waiver provision [section 120.542] may be the most significant element of the comprehensive

Mariner Properties Development, Inc. v. Board of Trustees of the Internal Improvement Trust Fund

Court: Fla. Dist. Ct. App. | Date Filed: 1999-09-14T00:00:00-07:00

Citation: 743 So. 2d 1121, 1999 Fla. App. LEXIS 12184, 1999 WL 743559

Snippet: hearing, upon the determination that the section 120.542, Florida Statutes, variance and waiver process …appellant sought a variance and waiver under section 120.542, which indicates at subsection (1) that in appropriate…so identified by rule 18-21.004(1). The section 120.542(1) limitation of the variance and waiver process…Because the variance and waiver process in section 120.542 expressly pertains to regulatory rather than proprietary

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Court: Fla. Att'y Gen. | Date Filed: 1996-09-11T00:53:00-07:00

Snippet: 1996). 7 Section 120.542(2), Fla. Stat. (1996). 8 Id. 9 Supra at n. 7. 10 Section 120.542(4), Fla. Stat.…Stat. (1996). 11 Section 120.542(5), Fla. Stat. (1996). 12 Section 120.542(6) and (7), Fla. Stat. (1996).…the following questions: 1. Pursuant to section 120.542, Florida Statutes (1996), is the Marine Fisheries…rules under specified circumstances. 2. Section 120.542(3), Florida Statutes (1996), requires that the … effect October 1, 1996.2 Question One Section 120.542, Florida Statutes, was created to authorize agencies