Representative Needelman's Proposal for the Creation of Constitutional Due Process from the September 13th FWC Meeting

Unlike last year, there was virtually NO opposition to Representative Needelman's Due Process solution. Many of last year's Due Process opponents have become proponents.

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At the September 13th St. Petersburg FWC meeting, Representative Needelman informed the Commission and audience that two other Constitutional bodies in Florida Government have adopted Section 120 for Rule Challenges. He then requested that the FWC back the following Due Process Bill in the Florida Legislature. If the bill passes in the Legislature, it will be submitted to the electors of this state for approval or rejection at the next general election or at an earlier special election specifically authorized by law for that purpose.

Readers... Ask yourself WHY the FWC would oppose this bill if their Constitutional Rules were sound? As it currently stands, FWC rules promulgated under their "Constitutional Authority" can NOT be challenged in court or even reviewed by our Legislature.

The Proposed Due Process Bill...

House Joint Resolution
2 A joint resolution proposing an amendment to Section 9 of
3 Article IV of the State Constitution to require the Fish
4 and Wildlife Conservation Commission to provide a rule
5 challenge process in commission procedures for persons who
6 are affected by any existing or proposed rule of the
7 commission and to provide guidelines for commission rules
8 and rule challenges.
9
10 Be It Resolved by the Legislature of the State of Florida:
11
12 That the following amendment to Section 9 of Article IV of
13 the State Constitution is agreed to and shall be submitted to
14 the electors of this state for approval or rejection at the next
15 general election or at an earlier special election specifically
16 authorized by law for that purpose:
17 ARTICLE IV
18 EXECUTIVE
19 SECTION 9. Fish and wildlife conservation
20 commission.--There shall be a fish and wildlife conservation
21 commission, composed of seven members appointed by the governor,
22 subject to confirmation by the senate, for staggered terms of
23 five years. The commission shall exercise the regulatory and
24 executive powers of the state with respect to wild animal life
25 and fresh water aquatic life, and shall also exercise regulatory
26 and executive powers of the state with respect to marine life,
27 except that all license fees for taking wild animal life, fresh
28 water aquatic life, and marine life and penalties for violating
29 regulations of the commission shall be prescribed by general
30 law. The commission shall establish procedures to ensure
31 adequate due process in the exercise of its regulatory and
32 executive functions. The procedures shall include a rule
33 challenge process for persons who are affected by any existing
34 or proposed rule of the commission. In a rule challenge, the
35 burden shall be on the commission to show by a preponderance of
36 the evidence that the rule is supported by competent and
37 substantial evidence and that the evidence demonstrates the
38 rational basis for the rule. Rules of the commission shall not
39 be based upon speculation unsupported by evidence or empirical
40 data. Procedures for a rule challenge process shall follow those
41 set forth in the state administrative procedure act. The
42 legislature may enact laws in aid of the commission, not
43 inconsistent with this section, except that there shall be no
44 special law or general law of local application pertaining to
45 hunting or fishing. The commission's exercise of executive
46 powers in the area of planning, budgeting, personnel management,
47 and purchasing shall be as provided by law. Revenue derived from
48 license fees for the taking of wild animal life and fresh water
49 aquatic life shall be appropriated to the commission by the
50 legislature for the purposes of management, protection, and
51 conservation of wild animal life and fresh water aquatic life.
52 Revenue derived from license fees relating to marine life shall
53 be appropriated by the legislature for the purposes of
54 management, protection, and conservation of marine life as
55 provided by law. The commission shall not be a unit of any other
56 state agency and shall have its own staff, which includes
57 management, research, and enforcement. Unless provided by
58 general law, the commission shall have no authority to regulate
59 matters relating to air and water pollution.
60 BE IT FURTHER RESOLVED that the following statement be
61 placed on the ballot:
62 CONSTITUTIONAL AMENDMENT
63 ARTICLE IV, SECTION 9
64 FISH AND WILDLIFE CONSERVATION COMMISSION RULE CHALLENGE
65 PROCEDURES.--Proposing an amendment to the State Constitution to
66 require the Fish and Wildlife Conservation Commission to provide
67 in the procedures of the commission a rule challenge process for
68 persons affected by existing or proposed commission rules, to
69 require that the burden in a rule challenge shall be on the
70 commission to show by a preponderance of the evidence that the
71 rule is supported by competent and substantial evidence and that
72 the evidence demonstrates the rational basis for the rule, to
73 require that a rule not be based on speculation unsupported by
74 evidence or empirical data, and to require that the commission's
75 rule challenge process procedures follow those set forth in the
76 state Administrative Procedure Act.