Fort Walton Beach Council agenda — 08-08-2006 ‎(executive)‎ — reading text

Planning to use in identifying a acting through whim, showing favoritism, or particular area as one of critical state concern: exercising unbridled discretion." Lewis v. Bank oj a) An area containing, or having a significant Pasco County, 346 So.2d 53, 55- 56 ( Fla. 1976). impact upon, environmental, historical, natural, or The requirement that the Legislature provide archaeological resources of regional or statewide sufficient guidelines also ensures the availability of importance. meaningful judicial review: b) An area significantly affected by, or having a In the final analysis it is the courts, upon a significant effect upon, an existing or proposed challenge to the exercise or nonexercise of major public facility or other area of major public administrative action, which must detennine investment. whether the administrative agency has perfonned c) A proposed area of major development consistently with the mandate of the legislature. potential, which may include aproposed site of a When legislation is so lacking in guidelines that new community, designated in a state land neither the agency nor the courts can detennine development plan. whether the agency is carrying out the intent of the legislature in its conduct, then, in fact, the agency d. at 914- 15 ( section 380.05( 2), Florida quoting becomes the lawgiver rather than the administrator Statutes ( 1975)). The concluded that the Court of the law. criteria for designation of an area of critical concern set forth in subsections ( a) and ( b) were defective Askew, 372 So. 2d at 918- 19. because they gave the executive agency " the fundamental legislative task of detennining which 13 ] We have recognized that the " specificity of the geographic and resources [ were] in greatest areas guidelines [ set forth in * 333 the legislation] will need of protection." [ d. at 919. With regard to depend on the complexity of the subject and the ' subsection ( a), this Court agreed with the district that the deficiency resulted from the degree of difficulty involved in articulating finite court standards. ' " Brown v. Apalachee Regional Legislature' s failure to " establish or provide for Planning Council, 560 So. 2d 782, 784 ( Fla. 1990) establishing priorities or other means for identifying quoting Askew, 372 So. 2d at 918). However, we and choosing among the resources the Act is have also made clear that "[ e ]ven where a general intended preserve." [ d. ( quoting Cross Key to approach would be more practical than a detailed Waterways v. Askew, 351 So. 2d 1062, 1069 ( Fla. scheme of legislation, enactments may not be 1st DCA 1977)). Subsection ( b) suffered a similar drafted in tenns so general and unrestrictive that defect by expanding " the choice to include areas administrators are left without standards for the which in unstated ways affect or are affected by any @ 2006 Thomson/West. No Claim to Orig. U. S. Govt. Works. 8/ 3/ 2006 https:// web2.westlaw .com/printJprintstream. aspx?utid=%257b87F 1 E849- A561- 497D- 9703- 0CFDA...  Page 13 of 17 885 So.2d 321 Page 13 885 So. 2d 321, 29 Fla. L.Weekly S515 Cite as: 885 So. 2d 321) major public facility' which is defined in Section Emphasis added). In both instances there is ( 0), or any ' major public 380.031 1 nothing to provide the Governor with any direction investment,' which is not." [d. or guidelines for the exercise of this delegated authority. The Act does not suggest what constitutes Lewis involved a statute that gave the state a change in condition of the patient" that could" release warrant revocation." Even when such an undefined comptroller the unrestricted power to banking records to the that were otherwise public change" occurs, the Governor is not compelled to considered confidential under the Public Records act. The Act confers upon the Governor the Act. See 346 So. 2d at 55. The statute at issue unfettered discretion to determine what the terms of the Act mean and when, or if, he may act under it. provided in pertinent part: Division records. All bank or trust company applications, We agree with this analysis. In enacting chapter examination reports, and 2003- 418, the Legislature failed to provide any investigation reports, related information,including any duly authorized standards by which the Governor should determine whether, in any given case, a stay should be issued copies in possession of any banking organization, foreign banking corporation, or any other person or and how long a stay should remain in effect. Further, the Legislature has failed to provide any agency, shall be confidential communications, other than such documents as are required by law to be criteria for lifting the stay. This absolute, unfettered discretion to decide whether to issue and published, and shall not be made public, unless with the consent of the department. pursuant* 334 to a then when to lift a stay makes the Governor' s court order, or in response to legislative subpoena decision virtually unreviewable. as provided by law. The Governor asserts that by enacting chapter Lewis. 346 So.2d at 54 ( quoting section 658. 10, the Legislature determined that he should 2003-418 Florida Statutes ( 1975)) ( alteration in original). be permitted to act as proxy for an incompetent This Court held that the law was " couched in vague patient in very narrow circumstances and, therefore, and uncertain terms or is so broad in scope that ... it that his discretion is limited by the provisions of must be held unconstitutional as attempting to grant chapter 765. However, the Act does not refer to to the ... [ comptroller] the power to say what the the provisions of chapter 765. Specifically, the Act law shall be." 346 So. 2d at 56 ( quoting Sarasota does not amend section 765.401( 1), Florida Statutes 737, 742 ( Fla. 1974)) 2003), which sets forth an order of priority for County v. Barg. 302 So. 2d alterations in original). determining who should act as proxy for an incapacitated patient who has no advance directive. In this case, the circuit court found that chapter Nor does the Act require that the Governor's 2003- 418 contains no guidelines or standards that " decision be made in conformity with the would serve to limit the Governor from exercising requirement of section 765. 401 that the proxy' s unrestricted discretion in applying the decision based on " the decision the proxy be completely law to" those who fall within its terms. The circuit reasonably believes that patient would have made court explained: under the circumstances" or, if there is no indication The terms of the Act affirmatively confirm the of what the patient would have chosen, in the patient' s best interests. ~ 765.401( 2)-( 3), Fla. Stat. discretionary power conferred upon the Governor. He is given the " authority to issue a one- time stay to 2003). Finally, the Act does not provide for review of the Governor' s decision as as prevent the withholding of nutrition and hydration proxy from a patient"under certain circumstances but, he required by section 765. 105, Florida Statutes ( 2003) is not required to do so. Likewise, the act provides In short, there is no indication in the language of that the Governor " may lift the stay