January 6, 2006
|Representative Ellyn Setnor Bogdanoff, Chair
Senator Michael S. 'Mike" Bennett, Vice-Chair
Senator Nancy Argenziano
Senator Larcenia J. Bullard
Representative Susan IC Goldstein
Representative Matthew J. "Matt" Meadows
|F. SCOTT BOY
AND GENERAL COUNSEL
Room 120, Holland Building
Tallahassee, Florida 32399-1300
Telephone (850) 488-9110
Jan Bergemann, President
Citizens for Justice, Inc.
Tall Oaks Road
DBPR Rulemaking USURPS
Bogdanoff, as Chair of the Joint Administrative Procedures
Committee, forwarded your e-mail entitled "DBPR Rulemaking
USURPS Florida Statutes" and requested that we examine DBPR's
legislative authority. Representative
Bogdanoff is very interested in legislation and rules affecting
condominiums and in ensuring that administrative rules do not exceed
their statutory authority.
e-mail message states that §718.5012(9), Florida Statutes, requires
an election monitor to attend meetings of unit owners and conduct
the election of directors, and DBPR is proposing a rule to eliminate
the requirement of attending and conducting the election of
directors. The version of rule 6 I B-23.00215 at CCFJ's website under
the heading "-DBPR Rulemaking USURPS Florida Statutes" is
consistent with the above statements.
agencies are required to follow the rulemaking provisions in the
Administrative Procedure Act in chapter 120, Florida Statutes. Section 120.54, Florida Statutes, is entitled
"Rulemaking" and contains requirements for a rule
development notice and a notice of rulemaking which must be
published in the Florida Administrative Weekly.
rules of state agencies are maintained in the Florida Administrative
Code. Agencies cannot
amend their rules without going through the process required by
chapter 120, Florida Statutes. DBPR has published a notice of rule
development for rule 61B-23.00215 in the January 6, 2006, Florida
Administrative Weekly, Volume 32, Number I at page 1. According to
the notice, a rule development workshop is scheduled for January 23,
2006, at 10:00 a.m. The notice does not contain the text of the rule
amendment but does provide a website address where a copy of the
proposed text is available.
practice of the Joint Administrative Procedures Committee under §
120.545, Florida Statutes, is to review proposed rules after the
notice of rulemaking is published in the Florida Administrative
Weekly. In many instances rule amendment proposals are changed after
the rule development notice. Until
the rule amendments are officially proposed by the DBPR, action by
the committee would be premature.
you for alerting us to the potential statutory authority issues
regarding rule 61B23.00215, Florida Administrative Code.
We will continue to carefully review proposed rules to ensure
compliance with the "map tack" provisions of § 120.5 36,
Florida Statutes, and the rulemaking procedure in chapter 120,
Florida Statutes. When
rule amendments for rule 61 B23.00215 are published, we will keep
these issues in mind and welcome any further comments you may have.
The Honorable Ellyn Setnor Bogdanoff
Representative, District 91