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F.S. 120.536 on Google Scholar

F.S. 120.536 on Casetext

Amendments to 120.536


The 2020 Florida Statutes

Title X
PUBLIC OFFICERS, EMPLOYEES, AND RECORDS
Chapter 120
ADMINISTRATIVE PROCEDURE ACT
View Entire Chapter
F.S. 120.536 Florida Statutes and Case Law
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of one or more provisions of law implemented by a rule that on its face implements only the provision or provisions repealed and no other provision of law nullifies the rule.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the effective date of the law effecting the nullification and update the historical notes for the code to show the rule repealed by operation of law.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repeal of one or more provisions of law implemented by a rule that on its face implements the provision or provisions repealed and one or more other provisions of law nullifies the rule or applicable portion of the rule to the extent that it implements the repealed law.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of rules affected by the repealing law, and if no notice is timely published the operation of each rule implementing a repealed provision of law shall be suspended until such notice is published.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.

Statutes updated from Official Statutes on: December 31, 2020
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.


Civil Citations / Citable Offenses under S120.536
R or S next to points is Mandatory Revocation or Suspension

Current data shows no reason a civil citation or a suspension or revocation of license should have been issued under Florida Statute 120.536.


Annotations, Discussions, Cases:

  1. The Florida Commission falls within the state's definition of an agency, see Fla. Stat. § 120.51, and thus, its rule making authority is subject to Florida's APA, see Fla. Stat. §§ 120.536 and 120.54. In addition, in 1999, the Florida legislature amended § 548.003(2) to state explicitly that "[t]he commission has authority to adopt rules pursuant to § 120.536(1) and 120.54 [of the Administrative Procedure Act]. . . ."
  2. State v. Day Cruise Assn

    794 So. 2d 696 (Fla. Dist. Ct. App. 2001)   Cited 22 times
    The first sentence of 120.536(1) states that "[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." This language is apparently intended to stress that under Florida's APA, a rule is not within delegated authority solely because the agency has a valid grant of rulemaking power. Under the statutory scheme, a grant of power to adopt rules is certainly required, but normally should be of little interest. Almost all agencies have a general grant — usually found in the first part of their enabling statute — which basically states that the agency "may adopt rules necessary to carry out the provisions of this chapter." The first sentence [of section 120.536] emphasizes that such a general grant is sufficient to allow an agency to adopt a rule only when relied upon in conjunction with a specific provision of law to be implemented. . . .
    PAGE 703
  3. MB Doral, LLC v. Fla. Dep't of Bus. & Prof'l Regulation

    295 So. 3d 850 (Fla. Dist. Ct. App. 2020)   Cited 1 times
    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 reasonably
    PAGE 853
  4. AGO

    2010-52 (Ops. Fla. Atty. Gen. Dec. 29, 2010)
    "(a) Adopt a plan of operation and articles, bylaws, and operating rules pursuant to the provisions of ss. 120.536 and 120.54 to administer the provisions of this section and ss. 723.06115, 723.06116, and 723.0612.
  5. United Faculty of Fla. v. Fla. Bd. of Educ.

    157 So. 3d 514 (Fla. Dist. Ct. App. 2015)   Cited 2 times
    This statute, which authorizes the Board to “adopt rules ... to implement the provisions of law conferring duties upon it for the improvement of the state system of K–20 public education except for the State University System,” is a general grant of rulemaking authority that is insufficient by itself to provide the requisite authority for the challenged rule. See §§ 120.52(8), 120.536(1), Fla. Stat.
    PAGE 518
  6. Orlando Health Cent., Inc. v. Agency for Health Care Admin.

    252 So. 3d 849 (Fla. Dist. Ct. App. 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. 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…
    PAGE 852
  7. Dept. of Bus. v. Calder Race Course

    724 So. 2d 100 (Fla. Dist. Ct. App. 1998)   Cited 2 times   1 Legal Analyses
    If the rule is to pass the test demanded by sections 120.52(8) and 120.536(1), it must do so through the powers delegated generally to the Division under section 550.0251. The pertinent provisions thereof are as follows:
    PAGE 102
  8. Whiley v. Scott

    79 So. 3d 702 (Fla. 2011)   Cited 7 times
    Section 120.536 provides in pertinent part as follows:
    PAGE 711
  9. Fla. Dep't of Bus. & Prof'l Regulation v. Walmart Inc.

    No. 1D19-4599 (Fla. Dist. Ct. App. May. 19, 2021)
    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.
    PAGE 5
  10. G.B. v. Agency for Persons with Disabilities

    143 So. 3d 454 (Fla. Dist. Ct. App. 2014)
    An agency may not propose or create a rule that “enlarges, modifies, or contravenes the specific provisions of ... the language of the enabling statute.” § 120.52(8)(c), (9), 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.”). The rule must comply with the Legislature's particular requirements. Moreland, 19 So.3d at 1011–13.
    PAGE 457