TAMPA ELECTRIC COMPANY, APPELLANT,
v.
FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, POLK COUNTY AND GAPWAY GROVES, INC., APPELLEES
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Tampa Electric Company challenged a declaratory statement issued by the Florida Department of Community Affairs regarding local governments' authority to regulate utility power line construction. The court held that the declaratory statement violated statutory limits by issuing broad policy guidance applicable to an entire class of persons rather than addressing the specific circumstances of the petitioner.
The declaratory statement exceeds the scope of authority granted by section 120.565 because it sets forth broad agency policy applicable to all local governments seeking to regulate utility power line construction, rather than being confined to the petitioner's particular circumstances. Such broad statements of policy must be adopted through rulemaking procedures under section 120.54, not through declaratory statements.
[1] An agency may not use a declaratory statement to adopt broad agency policy or provide interpretations applicable to an entire class of persons.
[2] When an agency is asked to issue a declaratory statement that is not limited to specific facts and a specific petitioner, and would require a general response akin to a r…
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Join FLexlaw to unlock all legal intelligence“A declaratory statement shall set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances.”
Establishes the statutory standard limiting declaratory statements to specific petitioner circumstances
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Join FLexlaw to unlock all legal intelligenceThe Department of Community Affairs issued a declaratory statement in response to a petition that framed the main issue broadly: whether local governm…
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ALLEN, Judge.
The appellant challenges the validity of a declaratory statement issued by the Department of Community Affairs (the department). We conclude that the declaratory statement exceeds the scope of authority granted to agencies by section 120.565, Florida Statutes, and we therefore set aside the declaratory statement.
Section 120.565, Florida Statutes, provides in pertinent part:
A declaratory statement shall set out the agency’s opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances.
We have interpreted this language as limiting an agency’s power to issue broad statements of policy in the guise of a declaratory statement: “[A]n administrative agency may not use a declaratory statement as a vehicle for the adoption of a broad agency policy or to provide statutory or rule interpretations that apply to an entire class of persons.” Regal Kitchens, Inc. v. Florida Dept. of Revenue, 641 So. 2d 158,162 (Fla. 1st DCA 1994). In Florida Optometric Association v. Department of Professional Regulation, 567 So. 2d 928, 937 (Fla. 1st DCA 1990), we said:
When an agency is called upon to issue a declaratory statement in response to a question which is not limited to specific facts and a specific petitioner, and which would require a response of such a general and consistent nature as. to meet the definition of a rule, the agency should either decline to issue the statement or comply with the provisions of Section 120.54 governing rulemaking.
In the declaratory statement involved here, the department framed the inquiry broadly: “Although the amended petition seeks declaration on several questions, the main issue is whether or not local governments may control the up-sizing of electric power lines through comprehensive plans and land use regulations.” And the department then responded with an equally broad answer: “Local governments have the power to regulate the use of land — including the use of land for power lines — under their constitutional home rule powers and various statutes which empower local governments, or confirm existing powers, including [the Growth Management Act.]” This language sets forth a general policy of far-reaching applicability. Clearly, the declaratory statement would apply to all local governments seeking to regulate any utility’s construction of power lines. Thus, rather than being confined to the “petitioner in his particular set of circumstances,” the declaratory statement in this case sets forth “broad agency policy ... that applies] to an entire class of persons.” We therefore conclude that it is impermissibly broad.
The declaratory statement is set aside.
KAHN and DAVIS, JJ., concur.
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Fla. Dep't of Bus. & Prof'l Reg. v. Inv. Corp. OF Palm Beach, 747 So. 2d 374 (Fla. 1999)…and specific petitioners, but in reality adopts a broad agency policy or provides statutory or rule interpretations that apply to an entire class of persons, it will be set aside on appeal. See Tampa Elec. Co. v. Florida Dep’t. of Community Affairs, 654 So. 2d 998 (Fla. 1st DCA 1995); Regal Kitchens, Inc. v. Florida Dep’t of Revenue, 641 So. 2d 158 (Fla. 1st DCA 1994). Our review of the declaratory statement reveals that it construes various statutory provisions of-general applicability to all pari-mutuel pe…1 / 2
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Lawton Chiles v. Dep't of State, 711 So. 2d 151 (Fla. 1st DCA 1998)…may not be employed in place of a rule to require compliance with general agency policy. See Regal Kitchens Inc. v. Florida Department of Revenue, 641 So. 2d 158 (Fla. 1st DCA 1994); Tampa Electric Company v. Florida Department of Community Affairs, 654 So. 2d 998 (Fla. 1st DCA 1995). If an agency is presented with a petition for a declaratory statement requiring a response that amounts to a rule, the agency should decline to issue the statement and initiate rulemaking. See Florida Optometric Association; Age…
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Inv. Corp. OF Palm Beach v. Division of Pari-Mutuel Wagering, 714 So. 2d 589 (Fla. 3d DCA 1998)…and specific petitioners, but in reality adopts a broad agency policy or provides statutory or rule interpretations that apply to an entire class of persons, it will be set aside on appeal. See Tampa Elec. Co. v. Florida Dep’t. of Community Affairs, 654 So. 2d 998 (Fla. 1st DCA 1995); Regal Kitchens, Inc. v. Florida Dep’t of Revenue, 641 So. 2d 158 (Fla. 1st DCA 1994). Our review of the declaratory statement reveals that it construes various statutory provisions of general applicability to all parimutuel per…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Regal Kitchens, Inc. v. Fla. Dep't OF Revenue, 641 So. 2d 158 (Fla. 1st DCA 1994)
- Fla. Optometric Ass'n & Alan P. Fisher v. Dep't OF Prof'l Reg., 567 So. 2d 928 (Fla. 1st DCA 1990)