Under Strict Seperation of Powers Doctrine No Branch May Encroach Upon the Powers of Another
The Supreme Court of Florida has traditionally applied a "strict separation of powers doctrine," State v. Cotton, 769 So. 2d 345, 353 (Fla. 2000), which "encompasses two fundamental prohibitions." Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260, 264 (Fla. 1991).
"The first is that no branch may encroach upon the powers of another. the second is that no branch may delegate to another branch its constitutionally assigned power." Id.
In Bush v. Schiavo, 885 So. 2d 321 (Fla. 2004), cert. denied, 543 U.S. 1121, 160 L. Ed. 2d 1069, 125 S. Ct. 1086 (2005), the court addressed this second prohibition and explained:
The Legislature is permitted to transfer subordinate functions "to permit administration of legislative policy by an agency with the expertise and flexibility to deal with complex and fluid conditions." Microtel, Inc. v. Fla. Public Serv. Comm'n, 464 So. 2d 1189, 1191 (Fla. 1985).
However, under article II, section 3 of the constitution the Legislature "may not delegate the power to enact a law or the right to exercise unrestricted discretion in applying the law." Sims v. State, 754 So. 2d 657, 668 (Fla. 2000).
This prohibition, known as the non-delegation doctrine, requires that "fundamental and primary policy decisions . . . be made by members of the legislature who are elected to perform those tasks, and that the administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program." Askew v. Cross Key Waterways, 372 So. 2d 913, 925 (Fla. 1978); see also Avatar Dev. Corp. v. State; 723 So. 2d 199, 202 (Fla. 1998) (citing Askew with approval).
In other words, statutes granting power to the executive branch "must clearly announce adequate standards to guide . . . in the execution of the powers delegated.
The statute must so clearly define the power delegated that the executive is precluded from acting through whim, showing favoritism, or exercising unbridled discretion." Lewis v. Bank of Pasco County, 346 So. 2d 53, 55-56 (Fla. 1976). Id. at 332.