8160336, 64E-26.001 - Florida Administrative Rules, Law, Code, Register

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Florida Department of State and Division of Library and Information Services

Notice: 8160336

Notice of Proposed Rule

Department:

DEPARTMENT OF HEALTH

Division:

Division of Environmental Health

Chapter:

STATE AND LOCAL DETENTION FACILITIES

Overview

RULE:

64E-26.001	General (Repealed)
64E-26.002	Definitions (Repealed)
64E-26.003	Water Supply (Repealed)
64E-26.004	Food Service
64E-26.005	Sanitary System
64E-26.006	Garbage and Rubbish (Repealed)
64E-26.007	Housing (Repealed)
64E-26.008	Laundry and Dry Cleaning (Repealed)
64E-26.009	Bedding, Clothing and Personal Items (Repealed)
64E-26.010	Housekeeping (Repealed)
64E-26.011	Insect and Rodent Control (Repealed)
64E-26.012	Outdoor Areas (Repealed)
64E-26.013	Industries (Repealed)

PURPOSE:

In 1996, the Department of Health and Rehabilitative Services (HRS), repealed Chapter 10D-7, of the Florida Administrative Code. In June, 2006, the First District Court of Appeal, affirmed the decision of a lower court, which held that HRS’ repeal of the chapter was an invalid exercise of delegated legislative authority. Chapter 10D-7, was thus revived by judicial determination.
Having been repealed before the 1996 and 1999 amendments to the Administrative Procedures Act (APA), this chapter had not previously undergone the review required of state agencies by then subsection (2) of Section 120.536, F.S., (1996-2004), to determine whether there was sufficient legislative authority for existing agency rules. While the specific review requirements of former subsection (2) were repealed during the 2005 legislative session, Section 120.536(1), F.S., continues to mandate that agencies “. . . may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute,” and that: “[N]o agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation.”
Section 381.006(6), F.S., authorizes the Department of Health to maintain as part of its environmental health program: “[A] public facilities function, including sanitary practices relating to . . . all places used for the incarceration of prisoners and inmates of state institutions for the mentally ill.” Since the decision reversing the repeal of Chapter 10D-7, in order to comply with the legislative mandate contained in Section 120.536(1), F.S., the Department of Health as the successor agency to HRS, has been reviewing what is now Chapter 64E-26, F.A.C., to determine if changes to these rules may be necessary due to the limited authority granted the Department in Section 381.006(6), F.S. In the course of its initial review, the department identified and subsequently repealed on May 10, 2007, rules that were clearly without statutory authority to implement. Presently, the department has continued its review of Chapter 64E-26, F.A.C., to see if there are other rules within the chapter that are not supported by statutory authority provided in Section 381.006(6), F.S.
In the course of this review, the department has also found that some health and safety requirements included in Chapter 64E-26, F.A.C., are addressed by other rules administered by the department or other state and local agencies, under more substantive grants of legislative authority. For example, food service requirements are addressed by the department in Chapter 64E-11, F.A.C., based on statutory authority in Section 381.0072, F.S., which specifically includes prisons as a food service establishment under the department’s jurisdiction. Drinking water requirements are addressed by the Department of Environmental Protection (DEP) in Chapters 62-550, 62-555, and 62-560, F.A.C., which implement the provisions of, and DEP’s responsibilities under, Chapter 403, F.S. Fire Safety requirements, including occupant load, are addressed in Chapter 69A-54, F.A.C., which are within the jurisdiction of the State Fire Marshal pursuant to Chapter 633, F.S. Finally, building construction, occupant load, plumbing fixtures and fixture ratios, lighting, ventilation, and equipment requirements are addressed by the Department of Community Affairs and the Florida Building Commission in the Florida Building Code pursuant to authority granted under Chapter 553, F.S.
Thus, the purpose of this proposed rulemaking is to identify and retain requirements from this chapter that are supported by the department’s statutory authority in Section 381.006(6), F.S., and to repeal rules that are not supported by that authority. The effect will be to ensure that the department’s rules comply with the APA’s requirement that each rule of a state agency reflect a specific law the agency is required to implement, interpret, or make specific.

SUMMARY:

Rules 64E-26.002, 64E-26.003 and 64E-26.004, F.A.C., are being repealed as there is insufficient authority in Section 381.006(6), F.S., to define terms and adopt requirements related to water supplies and food service, and because the requirements in these sections duplicate rules of the department and other state agencies. Additionally, references to building construction, occupant space, plumbing fixture design and ratios, lighting, equipment, and maintenance requirements found in Rules 64E-26.005 through 64E-26.0013, F.A.C., are also repealed as the department has no authority to adopt rules in these areas for detention facilities. Requirements currently listed in the above referenced rules that are supported by statutory authority, but which are not currently addressed in other agency rules, will be retained and consolidated into one rule section.

RULEMAKING AUTHORITY:

381.006, 381.0011(13) FS.

LAW:

381.006(6), 381.0011(4) FS.

PRINT PUBLISH DATE:

1/22/2010 Vol. 36/03

COMMENTS:

From 1/22/2010 To 2/12/2010 (21 Days)
The public comment period for this notice has already expired.

REFERENCE MATERIALS:

No reference(s).

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