Frequently Asked Questions About Rule Variances and Waivers

man writing the words frequently asked questionsWhat is a Variance?

  • Section 120.52, Florida Statutes, defines a “variance” as a decision by an agency to grant a modification to all or part of the literal requirements of an agency rule to a person who is subject to the rule.

What is a Waiver?

  • Section 120.52, Florida Statutes, defines a “waiver” as a decision by an agency not to apply all or part of a rule to a person who is subject to the rule. 

Are there any governing statutes or rules?

  • Yes, the governing statute is section 120.542, Florida Statutes, and the governing rules are found in Chapter 28-104, Florida Administrative Code, part of the Uniform Rule of Procedure. 

What are the standards for granting variances and waivers?

  • Section 120.542(2), Florida Statutes, provides that variances and waivers are to be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness.
  • Under 120.542(2), Florida Statutes:
  • “Substantial hardship” means a demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver. 
  • “Principles of fairness” are violated when the literal application of a rule affects a particular person in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule.

Where should I file a request for a rule variance or waiver?

  • Per Rule 28-104.002(1), Florida Administrative Code, requests for a variance or waiver should be filed with this Office.  See our main page for our address. 

What should a request for a rule variance or waiver contain?

  • The requirements for a petition for a variance from or waiver of a rule are specified by Rule 28-104.002(2), Florida Administrative Code, which provides:

(2) The petition must include the following information:

(a) The caption shall read:

Petition for (Variance from) or (Waiver of) Rule (Citation)

(b) The name, address, any e-mail address, telephone number, and any facsimile number of the petitioner, if the party is not represented by an attorney or a qualified representative;

(c) The name, address, e-mail address, telephone number, and any facsimile number of the attorney or qualified representative of the petitioner, if any;

(d) The applicable rule or portion of the rule;

(e) The citation to the statute the rule is implementing;

(f) The type of action requested;

(g) The specific facts that demonstrate a substantial hardship or a violation of principles of fairness that would justify a waiver or variance for the petitioner;

(h) The reason why the variance or the waiver requested would serve the purposes of the underlying statute; and

(i) A statement whether the variance or waiver is permanent or temporary. If the variance or waiver is temporary, the petition shall include the dates indicating the duration of the requested variance or waiver.

What process will the Department follow?

  • The Department will:
  • Publish a notice of the request in the Florida Administrative Register.
  • Request additional information to enable it to make a decision on the request.
  • Issue an order granting or denying the request.

Can Comments be Filed in Response to a Request for a Variance or a Waiver?

  • Yes, Rule 28-104.003(1), Florida Administrative Code, provides interested persons the ability to submit written comments on the request within 14 days of publication of the notice of the request in the Florida Administrative Register.

What can I do if my request is denied or is only granted in part?

You can request and administrative proceeding under Chapter 120, Florida Statutes.  The order denying your request will include a notice of administrative appeal rights.