GrayRobinson Administrative and Regulatory E-lert – The Demise of Agency Deference: Florida Takes the Lead

By: Frank Shepherd, Shareholder, GrayRobinson, P.A.; Roberto Martinez, Partner, Colson Hicks Eidson; Ben Reaveley, Law Clerk, Third District Court of Appeal; and Savannah Padgett, Summer Associate, GrayRobinson, P.A.

Originally published in The Florida Bar Journal, Vol. 94, No. 1 January/February 2020

The year 2018 was a banner year for amendments to the Florida Constitution. Twelve proposed amendments appeared on the general election ballot in November 2018,[1] and all but one obtained the 60% passage rate required by the Florida Constitution.[2] Seven were proposed by a 37-member Florida Constitution Revision Commission, which convenes by constitutional command every 20 years and has plenary authority to submit proposals to amend the constitution directly to the voters.[3]

One of the more obscure, but most significant amendments proposed by the commission and approved by the voters, was an amendment to prohibit all Florida state court justices, judges, and administrative law judges from deferring to administrative agencies in the interpretation of the statutes and rules they are charged to administer.[4] At the federal level, this concept is commonly known as "Chevron deference." The federal doctrine originates from the landmark 1984 case of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which held that a court and agency must give effect to the expressed intent of Congress when analyzing an unambiguous statute.[5] If, however, the statute is unclear, the court’s determination is limited to whether the agency’s interpretation of the statute is based on a permissible construction of the statute.[6] Until abolished by the voters in the last general election, the Florida analog to "Chevron deference" was known simply as "agency deference."