APA: flexibility, flexibility, flexibility; the new variance and waiver provision.

• Author: Blanton, Donna E.
• Position: Florida

When the Governor's Administrative Procedure Act Review Commission convened its first meeting on October 12, 1995, most of those in attendance were skeptical that any agreement could be reached concerning how state government should interact with the citizens it regulates.

To many regulated business interests, the Florida Administrative Procedure Act (APA) had not lived up to its promise to eliminate "phantom government," and too many agencies continued to regulate citizens through unadopted rules and policies.(1) These groups favored tighter rulemaking requirements with closer links between statutes and the rules that implement them. To Gov. Lawton Chiles, however, the administrative process had "become dominated by rules and regulations" and government lacked common sense.(2) The Governor wanted to eliminate the requirement that agencies express their policies through rules.

Meanwhile, legislators were angry with the Governor for vetoing 1995 legislation that overhauled the APA, and they were threatening to override the veto during the 1996 session.(3) Weary of the contentious debates concerning the APA during the 1994 and 1995 legislative sessions,(4) few legislators appeared in a mood to compromise.

After four months of meetings, however, the commission reached consensus on many controversial issues surrounding administrative procedure. In April of 1996, the legislature quietly and unanimously enacted a revised APA that included virtually all of the commission's recommendations.(5)

A cornerstone of the compromise is the new variance and waiver provision.(6) By allowing agencies to vary the requirements of their rules, the provision satisfies the Governor's desire for increased flexibility. Yet the statute also allows variances and waivers only when the person subject to the regulation can meet the requirements of the underlying statute, thereby pleasing those who favor a close tie between statutes and implementing regulations. Ultimately, the variance and waiver provision provided the common ground that allowed the Governor, regulated business interests, and the legislature to move beyond old battles and to strike a balance between rigid adherence to rules and unpredictable application of them to the public.(7)

Early in the commission's deliberations, it was agreed that the focus of APA reform would encompass three broad areas: simplifying the APA, increasing flexibility in the application of administrative rules and procedures, and increasing agency accountability to the legislature and the general public.(8) The focus of the "flexibility" aspect of the commission's reform efforts was directed to a general variance and waiver provision.(9) This provision is unique to Florida, in that no other state has a "mandated flexibility" provision within its administrative procedure act.(10)

Constitutional Considerations Unique to Florida

During the discussion of flexibility issues, several members of the commission questioned whether a general waiver or variance provision could be constitutionally included in Florida's APA.(11) The concerns related to the separation of powers requirement in Art. II, [sections] 3 of the Florida Constitution and the "nondelegation doctrine" that state courts have developed when construing that provision.(12)

Art. III, [sections] 2 states: "The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein."

Florida courts have explained that this section encompasses two fundamental prohibitions.(13) First, no branch of government may encroach upon the powers of another. Second, no branch may delegate to another branch its constitutionally assigned powers. This second prohibition frequently is referred to as the "nondelegation doctrine." It can be implicated when the legislature allows another branch of government (such as an executive branch agency) to establish policy without sufficient guidelines from the legislature.(14)

With the case of Askew v. Cross Key Waterways, 372 So. 2d 913 (1978), the Florida Supreme Court invigorated Florida's longstanding nondelegation doctrine and applied it in the context of the then-new APA. The court stated that "the Legislature is not free to redelegate to an administrative body so much of its lawmaking power as it may deem expedient."(15) The court made clear, however, that the doctrine does not prohibit administrative agencies from "fleshing out" legislative policy, and even noted that "[f]lexibility by an administrative agency to administer a legislatively articulated policy is essential to meet the complexities of our modern society . . . ." What the legislature may not do is repose in an administrative body "the power to establish fundamental policy."(16)

Despite the stated strict adherence to the nondelegation doctrine following Cross Key Waterways, a reading of the cases indicates that courts have allowed agencies considerable flexibility in interpreting the general policies stated by the legislature.(17) In fact, courts have adopted a pragmatic approach, liberally interpreting the nondelegation doctrine...