PROCEDURE SET OUT IN FLORIDA STATUTES 120.54 AND CHAPTER 28-3,
FLORIDA ADMINISTRATIVE CODE, FOR ADOPTING RULES
1. Chapter 28-3.27 provides that after publication of notice
initiating rulemaking, the agency shall make available for public
inspection and shall provide upon request, copies of the follow-
(1) The text of the proposed rule or any amendment, or
repeal of existing rule;
(2) A detailed written statement justifying the proposed
(3) A copy of the economic impact statement required by
subsection 120.54, F.S.
Presently, SWFWMD does not comply with above subsection No. 2
requiring a detailed written statement justifying the proposed
rule. This is only developed after the workshops and public
hearings have been held. The rule requires that this statement
exist at the time of noticing the initiating of rulemaking.
2. If within 14 days after the date of publication of the
notice the agency receives a request from an affected person,
the agency shall give the affected person the opportunity to
present evidence and arguments.
The Department may schedule a public hearing on the rules. If
a public hearing is requested, then the agency must schedule a
public hearing on the rule. Fla. Stat. 120.54(3)(1981).
3. When no hearing is requested and the agency chooses not to
initiate a hearing on its own, the agency can file the proposed
rule with the Department of State but no less than 21 days after
giving notice. Direction may be given by the agency head prior
to initiating the proposed rule in the event no hearing is
requested or may give direction to file with the Department of
State after allowing 14 days in which affected persons may
request a hearing. Chapter 28-3.30, Florida Administrative Code.
4. If a hearing is held as a result of a request by an affected
person, the agency head, any member thereof or any person desig-
nated by the agency head may preside at the hearing. After the
hearing, if the agency requests, the person who presided is to
prepare a summary of the hearing and recommendations for changes
in the proposed rule. These documents are given to the agency
head for final action. Chapter 28-3.31, F.A.C.
There is just one major area of legal concern in the present
rulemaking procedure. That is that upon publication of notice
initiating the rulemaking, there is to be in existence, a
detailed written statement justifying the proposed rule. To
accomplish that requirement, it might be necessary to request
the Board to appoint a person to preside at workshops to be held
before the Governing Board is requested to initiate rulemaking.
By this method, the staff can have the opportunity to analyze
and justify the proposed levels in light of public comment.
After the written statement justifying the proposed rule which
will incorporate public comment is prepared, staff would then
request the Governing Board to initiate rulemaking. The Govern-
ing Board would then within its discretion, have the choice of
at that time scheduling a public hearing or waiting to hear
from the public any objections and requests for public hearings
in the event that not all concerns were resolved at workshops.
Under the procedure set out in the statute and the Florida Admin-
istrative Code, no recommended order is necessary for final
agency action. The agency instead acts on a summary of the
hearing and recommendations for changes in the proposed rule.
A recommended order results only from a hearing involving sub-
stantial interests conducted pursuant to Fla. Stat. 120.54(16),
120.57 and Chapter 28-5, F.A.C. A recommended order is generated
when these hearings are conducted by a person other than the
agency head or a member thereof. See Chapter 28-5.402,
An additional concern in having a governing board member render
a recommended order is that he is making conclusions of law
which he is not qualified to do. Recommended orders are rendered
usually by hearing officers of the Division of Administrative
Hearings. Hearing officers must be a member of the Florida Bar
for five years prior to appointment.