This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h7039.RUC
DATE: 1/28/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 7039 PCB RUC 22-04 Florida Statutes
SPONSOR(S): Rules Committee, Clemons
TIED BILLS: IDEN./SIM. BILLS: SB 852
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Rules Committee 15 Y, 0 N Johnson Birtman
SUMMARY ANALYSIS
Section 11.242(5)(j), F.S., directs the Office of Legislative Services to include duplicative, redundant, or unused
statutory rulemaking authority among its proposed repeals in reviser’s bill recommendations. The purpose of
this directive is not to diminish the authority of executive branch agencies to adopt administrative rules
necessary to implement their statutory responsibilities but to remove unnecessary text from the statutes.
This reviser’s bill removes such rule authorizing provisions through revision of existing statutes or repeal of
unnecessary provisions.
Pursuant to House Rule 12.3(e), a reviser’s bill cannot be amended except to delete bill sections.
The effective date of the bill is the 60th day after adjournment sine die. STORAGE NAME: h7039.RUC PAGE: 2
DATE: 1/28/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Statutory Delegation of Authority to Make Rules
A rule is an agency statement of general applicability which interprets, implements, or prescribes law or
policy, including the procedure and practice requirements of an agency, as well as certain types of
forms.
1
Rulemaking authority is delegated by the Legislature
2
by law authorizing an agency to “adopt,
develop, establish, or otherwise create”
3
a rule. Agencies do not have discretion whether to engage in
rulemaking.
4
To adopt a rule, an agency must have an express grant of authority to implement a
specific law by rulemaking.
5
The grant of rulemaking authority itself need not be detailed.
6
The
particular statute being interpreted or implemented through rulemaking must provide specific standards
and guidelines to preclude the administrative agency from exercising unbridled discretion in creating
policy or applying the law.
7
A delegation of authority to an administrative agency by a law that is vague,
uncertain, or so broad as to give no notice of what actions would violate the law, could be ruled
unconstitutional because it allows the agency to state what the law is.
8
The Legislature must provide
minimal standards and guidelines in the law creating a program to provide for its proper administration
by the assigned executive agency. The Legislature may delegate rulemaking authority to agencies but
not the authority to determine what the law should be.
9
Legislation creating new programs or modifying existing ones may include an additional grant of
authority for the responsible agency to create rules for administering the statute. Such language can be
redundant of a broader grant of authority for the agency to adopt rules implementing the full statutory
chapter or part and often is never used to support subsequent rulemaking because the existing
authority is legally sufficient.
Other grants of rulemaking authority are superfluous because the substantive legislation provides
sufficient guidance and detail for the agency to implement the program requirements without any
additional rulemaking. Such grants of rulemaking authority remain in statutes unused because they
serve no practical purpose.
Annual Review of Rulemaking Authority
In 2012, the Legislature directed the Office of Legislative Services (OLS), through the process of
proposed reviser’s bills, to omit duplicative, redundant, or unused grants of rulemaking authority from
inclusion in the statutes. Rulemaking authority is deemed unused if the provision has been in effect for
more than five years without being relied upon to adopt rules.
10
This bill implements that oversight of rulemaking authority. In preparing the bill, OLS, together with staff
of the Joint Administrative Procedures Committee (JAPC), developed a list of statutory grants of
rulemaking authority that initially appeared to meet the requirements for repeal. This summary was
submitted for review and comment by staff of the substantive House committees, which in turn
consulted with the various administrative agencies affected by the proposed revisions. Adhering to the
1
Section 120.52(16), F.S.; Fla. Dep’t of Fin. Services v. Capital Collateral Reg’l Counsel-Middle Region, 969 So.2d 527,
530 (Fla. 1st DCA 2007).
2
Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594 (Fla. 1st DCA 2000).
3
Section 120.52(17), F.S.
4
Section 120.54(1)(a), F.S.
5
Section 120.52(8) & s. 120.536(1), F.S.
6
Save the Manatee Club, Inc., supra at 599.
7
Sloban v. Fla. Bd. of Pharmacy, 982 So.2d 26, 29-30 (Fla. 1st DCA 2008); Bd. of Trustees of the Internal Improvement
Trust Fund v. Day Cruise Ass’n, Inc., 794 So.2d 696, 704 (Fla. 1st DCA 2001).
8
Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968).
9
Sarasota Cnty. v. Barg, 302 So.2d 737 (Fla. 1974).
10
Section 11.242(5)(j), F.S., as amended by Chapter 2012-116, s. 9, Laws of Florida. STORAGE NAME: h7039.RUC PAGE: 3
DATE: 1/28/2022
recommendations received from staff of the substantive committees, the final list of sections was
included in the bill.
The present bill is non-substantive and amends or deletes various statutory provisions or language to
omit duplicative, redundant, or unused and unnecessary grants of rulemaking authority. Where
necessary, the bill also deletes expired or obsolete language, corrects cross-references and
grammatical errors, and improves the clarity of the statutes to facilitate correct and proper interpretation
relative to legislative grants of rulemaking authority to administrative agencies. For each of the sections
included in this bill, the statutory rulemaking authority being amended or repealed has not been used to
adopt rules in more than five years and thus is unnecessary for the particular agency to implement its
statutory responsibilities.
B. SECTION DIRECTORY:
Section 1 amends s. 267.1736, F.S., to remove unused rulemaking authority from the University of
Florida allowing the university to adopt rules governing a direct-support organization tasked with
assisting the university in carrying out its dual historic preservation and historic preservation education
purposes and responsibilities for the City of St. Augustine, St. Johns County.
Section 2 amends s. 341.822, F.S., to remove unused rulemaking authority from the Florida Rail
Enterprise allowing the enterprise to adopt rules to administer permits issued to railroad companies for
the purpose of constructing communication facilities within a new or existing public or private high-
speed rail system.
Section 3 amends s. 341.840, F.S., to remove unused rulemaking authority from the Florida Rail
Enterprise and the Department of Revenue (DOR). The former allowing the enterprise to adopt rules
governing the application process for exemption from sales and use tax when a contractor is deemed
an authorized agent of the enterprise. The latter allowing DOR to adopt rules governing the issuance
and form of high-speed rail system exemption permits, the audit of contractors using such permits, the
recapture of taxes on certain purchases, and the manner and form of refund applications.
Section 4 amends s. 475.631, F.S., to remove unused rulemaking authority from the Florida Real
Estate Appraisal Board allowing the board to adopt rules regulating nonresident certified real estate
appraisers or licensees.
Section 5 amends s. 482.0815, F.S., to remove unused rulemaking authority from the Department of
Agriculture and Consumer Services requiring the department adopt rules to administer permits issued
to pest control businesses to perform preventive termite treatments for new construction.
Section 6 amends s. 497.150, F.S., to remove unused rulemaking authority from the Department of
Financial Services (DFS) allowing DFS to adopt rules relating to the examination of the facilities,
records, operations, trust accounts, and financial affairs of licensees licensed under chapter 497, F.S.
Section 7 amends s. 497.160, F.S., to remove unused rulemaking authority from DFS allowing DFS to
adopt rules regarding the appointment of the state as a court-appointed receiver of any licensee or
revoked or suspended licensee or person who has without license conducted activities requiring
licensure under chapter 497, F.S.
Section 8 provides an effective date of the 60th day after adjournment sine die.
STORAGE NAME: h7039.RUC PAGE: 4
DATE: 1/28/2022
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
This reviser’s bill is a technical, non-substantive bill. The bill has no fiscal impact on state or local
governments or on the private sector.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
This reviser’s bill removes unnecessary grants of rulemaking authority from the statutes but does not
substantively affect the necessary rulemaking authority of any agency.
C. DRAFTING ISSUES OR OTHER CO MMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
Not applicable.