After the 1999 amendments to Florida's Administrative Procedure Act: one aspect of Consolidated-Tomoka still remains.

• Author: Bryson, Leslie E.

The Florida Legislature and certain courts have in recent years engaged in an ongoing dialogue over the construction of provisions in Florida's Administrative Procedure Act regarding the scope of agency rulemaking authority. In 1996 and 1999, the Florida Legislature amended the APA to limit agency rulemaking authority. Recent judicial decisions issued subsequent to both amendments suggest, however, that agency discretion in administrative rulemaking should not be so limited,[1] and, more broadly, that administrative agencies should have more autonomy than that contemplated by the legislature.[2]

In 1996, the legislature revised the rulemaking standard in the APA to significantly curtail agency administrative rulemaking authority and to expand the definition of an invalid exercise of delegated legislative authority.[3] The rulemaking standard after 1996 could be found in F.S. [sections] 120.536(1). This language provided:

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, interpret, or make specific the particular 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, 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 the particular powers and duties conferred by the same statute.[4] (Emphasis added.)

To be certain its intent to limit agency rulemaking authority was clear, the legislature added identical language to F.S. [sections] 120.52(8), which sets forth the definition of an invalid exercise of delegated legislative authority.

The 1996 amendments implicitly overruled case law establishing the standard that rules and regulations would be upheld so long as they are reasonably related to the purpose of the enabling legislation and are not arbitrary or capricious.[5] In 1998, the First District Court of Appeal interpreted the new 1996 APA rulemaking standard in St. Johns River Water Management District v. Consolidated-Tomoka Land Co., 717 So. 2d 72 (Fla. 1st DCA 1998). The First District construed the term "particular" in [subsections] 120.52(8) and 120.536(1) to restrict rulemaking authority to matters "directly within the class or powers and duties identified in the enabling statute."[6] Under this interpretation of the new standard, the court upheld rules proposed by the St. Johns River Water Management District as a valid exercise of delegated legislative authority.[7]

The 1999 Amendments

The First District's interpretation of the 1996 amendments to the rulemaking standard did not sit well with lawmakers.[8] In the legislative session immediately following the First District's decision, the legislature amended the APA to clarify the rulemaking standard and expressly reject the "powers and duties" analysis conducted in Consolidated-Tomoka.[9] Indeed, the stated purpose of the 1999 amendments as provided in the footnote to [subsections] 120.52(8) and 120.536 was "to reject the class of powers and duties analysis."[10] Lawmakers qualified this rejection by stating that "[h]owever, it is not the intent of the Legislature to reverse the result of any specific judicial decision."[11]

Before the 1999 revision, [sections] 120.536(1) read that "[a]n agency may adopt only rules that implement, interpret, or make specific the particular powers and duties granted by the enabling statute."[12] (Emphasis added.) In 1999, the legislature deleted the term "particular" so that the statute presently reads that "[a]n agency may adopt only rules that implement or interpret specific powers and duties granted by the enabling statute."[13] (Emphasis added.) Thus, it appears as if the legislature thought it safest to remove the term "particular" from the statute altogether to prevent courts from focusing on that term in the future. Every reference in the legislation to the term "particular" was stricken and either replaced with the word "specific," or the word "specific" that already existed in the language in several places was left in place.[14]

Later in [sections] 120.52(8), the legislature added the phrase providing that an agency does not have the authority to adopt a rule because it is "within the agency's class...