Askew v. Cross Key Waterways

In Askew v. Cross Key Waterways, 372 So. 2d 913, 924 (Fla. 1978), the Court reaffirmed the nondelegation doctrine and held that " the legislature is not free to redelegate to an administrative body so much of its lawmaking power as it may deem expedient." 372 So. 2d at 924. Although the Court recognized the need for some flexibility in the administration of legislatively articulated policy, we noted that "flexibility in administration of a legislative program is essentially different from reposing in an administrative body the power to establish fundamental policy." Id. Accordingly, the Court held that: "Under the non-delegation doctrine fundamental and primary policy decisions shall be made by members of the legislature who are elected to perform those tasks, and administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program." Id. at 925. The Court reasoned that only "when legislation is so lacking in guidelines that neither the agency nor the courts can determine whether the agency is carrying out the intent of the legislature in its conduct, then, in fact, the agency becomes the lawgiver rather than the administrator of the law." Id. at 918-19. The Court invalidated a statute that directed the executive branch to designate certain areas of the state as areas of critical state concern but did not contain sufficient standards to allow "a reviewing court to ascertain whether the priorities recognized by the Administration Commission comport with the intent of the legislature." 372 So. 2d at 919. The statute in question enunciated the following criteria for the Division of State Planning to use in identifying a particular area as one of critical state concern: (a) An area containing, or having a significant impact upon, environmental, historical, natural, or archaeological resources of regional or statewide importance. (b) An area significantly affected by, or having a significant effect upon, an existing or proposed major public facility or other area of major public investment. (c) A proposed area of major development potential, which may include a proposed site of a new community, designated in a state land development plan. Id. at 914-15 (quoting section 380.05(2), Florida Statutes (1975)). The Court concluded that the criteria for designation of an area of critical concern set forth in subsections (a) and (b) were defective because they gave the executive agency "the fundamental legislative task of determining which geographic areas and resources were in greatest need of protection." Id. at 919. With regard to subsection (a), this Court agreed with the district court that the deficiency resulted from the Legislature's failure to "establish or provide for establishing priorities or other means for identifying and choosing among the resources the Act is intended to preserve." Id. Subsection (b) suffered a similar defect by expanding "the choice to include areas which in unstated ways affect or are affected by any 'major public facility' which is defined in Section 380.031(10), or any 'major public investment,' which is not." Id.