CODING: Words stricken are deletions; words underlined are additions.House Bill 1905
    Florida House of Representatives - 1997                HB 1905
        By Representatives Wallace and Burroughs
  1                      A bill to be entitled
  2         An act relating to administrative procedures;
  3         amending s. 120.52, F.S.; adding educational
  4         units to the definition of the term "agency";
  5         amending s. 120.54, F.S.; deleting the
  6         requirement for rule development for rule
  7         repeal; authorizing an alternative method by
  8         which a person may receive a copy of a
  9         preliminary draft of a rule; clarifying that an
10         agency's decision to use negotiated rulemaking
11         is not final agency action; deleting references
12         to the Department of Commerce; clarifying the
13         time by which the small business ombudsman must
14         provide regulatory alternatives to an agency;
15         extending the period for filing a rule upon
16         provision of regulatory alternatives to a rule;
17         clarifying times for filing when a notice of
18         change to a rule must be filed; extending the
19         period for filing a rule; amending s. 120.541,
20         F.S.; extending the period for filing a rule if
21         a written alternative for a lower cost
22         regulatory alternative to a rule is provided;
23         amending s. 120.542, F.S.; providing that
24         public employees are not persons subject to
25         regulation for the purposes of waiver and
26         variance; authorizing an agency to limit grants
27         of variance or waiver only to the extent
28         necessary to achieve the purpose of the
29         underlying statute; clarifying that agencies
30         may not grant a variance or waiver to rules
31         required by the Federal Government; requiring
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  1         uniform rules of procedures to contain certain
  2         procedures related to waiver and variance;
  3         clarifying the procedure by which an agency may
  4         request additional necessary information during
  5         the review of a petition for waiver or
  6         variance; amending s. 120.56, F.S.; providing
  7         that a proceeding to determine a violation of
  8         s. 120.54(1), F.S., may be consolidated with
  9         other proceedings; eliminating authority to
10         bring such an action in conjunction with
11         certain other proceedings; amending s. 120.569,
12         F.S.; conforming references; amending s.
13         120.57, F.S.; clarifying provisions governing
14         expedited hearings; adding a decision, opinion,
15         order or report of the presiding officer to the
16         record of hearings not involving disputed
17         facts; requiring agencies to use uniform bid
18         protest procedural rules; amending s. 120.573,
19         F.S.; clarifying the time when mediation is
20         authorized; amending s. 120.574, F.S.;
21         providing that intervenors are governed by the
22         decision of the original parties regarding the
23         summary-hearing process; amending s. 120.595,
24         F.S.; providing an exception to the award of
25         attorney's fees when an agency demonstrates
26         that a statement is required by the Federal
27         Government to implement or retain a delegated
28         or approved program or to meet a condition to
29         receipt of federal funds; amending s. 120.60,
30         F.S.; requiring a notice of intent to deny a
31         license to specify the grounds or basis;
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  1         providing an exception; specifying criteria for
  2         procedures for agencies to take emergency
  3         action with respect to licenses; amending s.
  4         120.65, F.S.; providing requirements for the
  5         director of the Division of Administrative
  6         Hearings; amending s. 120.66, F.S.; clarifying
  7         that a presiding officer may be an agency head
  8         or designee; amending s. 120.68, F.S.;
  9         providing for judicial review; amending s.
10         120.74, F.S.; specifying the frequency of rule
11         reviews; amending s. 120.81, F.S.; providing
12         that educational units and local units of
13         government need not publish notices or the text
14         of proposed rules in the Florida Administrative
15         Weekly; providing an effective date.
16
17  Be It Enacted by the Legislature of the State of Florida:
18
19         Section 1.  Subsection (1) of section 120.52, Florida
20  Statutes, 1996 Supplement, is amended to read:
21         120.52  Definitions.--As used in this act:
22         (1)  "Agency" means:
23         (a)  The Governor in the exercise of all executive
24  powers other than those derived from the constitution.
25         (b)  Each state officer and state department,
26  departmental unit described in s. 20.04, commission, regional
27  planning agency, board, multicounty special district with a
28  majority of its governing board comprised of nonelected
29  persons, and authority, including, but not limited to, the
30  Commission on Ethics and the Game and Fresh Water Fish
31  Commission when acting pursuant to statutory authority derived
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  1  from the Legislature, educational units, and those entities
  2  described in chapters 163, 298, 373, 380, and 582 and s.
  3  186.504, except any legal entity or agency created in whole or
  4  in part pursuant to chapter 361, part II, an expressway
  5  authority pursuant to chapter 348, or any legal or
  6  administrative entity created by an interlocal agreement
  7  pursuant to s. 163.01(7), unless any party to such agreement
  8  is otherwise an agency as defined in this subsection.
  9         (c)  Each other unit of government in the state,
10  including counties and municipalities, to the extent they are
11  expressly made subject to this act by general or special law
12  or existing judicial decisions.
13         Section 2.  Section 120.53, Florida Statutes, 1996
14  Supplement, as amended by section 5 of chapter 96-159, Laws of
15  Florida, and section 2 of chapter 96-423, Laws of Florida, is
16  reenacted to read:
17         120.53  Maintenance of orders; indexing; listing;
18  organizational information.--
19         (1)(a)  Each agency shall maintain:
20         1.  All agency final orders.
21         2.a.  A current hierarchical subject-matter index,
22  identifying for the public any rule or order as specified in
23  this subparagraph.
24         b.  In lieu of the requirement for making available for
25  public inspection and copying a hierarchical subject-matter
26  index of its orders, an agency may maintain and make available
27  for public use an electronic database of its orders that
28  allows users to research and retrieve the full texts of agency
29  orders by devising an ad hoc indexing system employing any
30  logical search terms in common usage which are composed by the
31  user and which are contained in the orders of the agency or by
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  1  descriptive information about the order which may not be
  2  specifically contained in the order.
  3         c.  The agency orders that must be indexed, unless
  4  excluded under paragraph (c) or paragraph (d), include:
  5         (I)  Each final agency order resulting from a
  6  proceeding under s. 120.57 or s. 120.573.
  7         (II)  Each final agency order rendered pursuant to s.
  8  120.57(4) which contains a statement of agency policy that may
  9  be the basis of future agency decisions or that may otherwise
10  contain a statement of precedential value.
11         (III)  Each declaratory statement issued by an agency.
12         (IV)  Each final order resulting from a proceeding
13  under s. 120.56 or s. 120.574.
14         3.  A list of all final orders rendered pursuant to s.
15  120.57(4) which have been excluded from the indexing
16  requirement of this section, with the approval of the
17  Department of State, because they do not contain statements of
18  agency policy or statements of precedential value. The list
19  must include the name of the parties to the proceeding and the
20  number assigned to the final order.
21         4.  All final orders listed pursuant to subparagraph 3.
22         (b)  An agency final order that must be indexed or
23  listed pursuant to paragraph (a) must be indexed or listed
24  within 120 days after the order is rendered. Each final order
25  that must be indexed or listed pursuant to paragraph (a) must
26  have attached a copy of the complete text of any materials
27  incorporated by reference; however, if the quantity of the
28  materials incorporated makes attachment of the complete text
29  of the materials impractical, the order may contain a
30  statement of the location of such materials and the manner in
31  which the public may inspect or obtain copies of the materials
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  1  incorporated by reference. The Department of State shall
  2  establish by rule procedures for indexing final orders, and
  3  procedures of agencies for indexing orders must be approved by
  4  the department.
  5         (c)  Each agency must receive approval in writing from
  6  the Department of State for:
  7         1.  The specific types and categories of agency final
  8  orders that may be excluded from the indexing and public
  9  inspection requirements, as determined by the department
10  pursuant to paragraph (d).
11         2.  The method for maintaining indexes, lists, and
12  final orders that must be indexed or listed and made available
13  to the public.
14         3.  The method by which the public may inspect or
15  obtain copies of indexes, lists, and final orders.
16         4.  A sequential numbering system which numbers all
17  final orders required to be indexed or listed pursuant to
18  paragraph (a), in the order rendered.
19         5.  Proposed rules for implementing the requirements of
20  this section for indexing and making final orders available
21  for public inspection.
22         (d)  In determining which final orders may be excluded
23  from the indexing and public inspection requirements, the
24  Department of State may consider all factors specified by an
25  agency, including precedential value, legal significance, and
26  purpose. Only agency final orders that are of limited or no
27  precedential value, that are of limited or no legal
28  significance, or that are ministerial in nature may be
29  excluded.
30
31
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  1         (e)  Each agency shall specify the specific types or
  2  categories of agency final orders that are excluded from the
  3  indexing and public inspection requirements.
  4         (f)  Each agency shall specify the location or
  5  locations where agency indexes, lists, and final orders that
  6  are required to be indexed or listed are maintained and shall
  7  specify the method or procedure by which the public may
  8  inspect or obtain copies of indexes, lists, and final orders.
  9         (g)  Each agency shall specify all systems in use by
10  the agency to search and locate agency final orders that are
11  required to be indexed or listed, including, but not limited
12  to, any automated system. An agency shall make the search
13  capabilities employed by the agency available to the public
14  subject to reasonable terms and conditions, including a
15  reasonable charge, as provided by s. 119.07. The agency shall
16  specify how assistance and information pertaining to final
17  orders may be obtained.
18         (h)  Each agency shall specify the numbering system
19  used to identify agency final orders.
20         (2)(a)  An agency may comply with subparagraphs
21  (1)(a)1. and 2. by designating an official reporter to publish
22  and index by subject matter each agency order that must be
23  indexed and made available to the public. An agency is in
24  compliance with subparagraph (1)(a)3. if it publishes in its
25  designated reporter a list of each agency final order that
26  must be listed and preserves each listed order and makes it
27  available for public inspection and copying.
28         (b)  An agency may publish its official reporter or may
29  contract with a publishing firm to publish its official
30  reporter; however, if an agency contracts with a publishing
31  firm to publish its reporter, the agency is responsible for
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  1  the quality, timeliness, and usefulness of the reporter. The
  2  Department of State may publish an official reporter for an
  3  agency or may contract with a publishing firm to publish the
  4  reporter for the agency; however, if the department contracts
  5  for publication of the reporter, the department is responsible
  6  for the quality, timeliness, and usefulness of the reporter. A
  7  reporter that is designated by an agency as its official
  8  reporter and approved by the Department of State constitutes
  9  the official compilation of the administrative final orders
10  for that agency.
11         (c)  A reporter that is published by the Department of
12  State may be made available by annual subscription, and each
13  agency that designates an official reporter published by the
14  department may be charged a space rate payable to the
15  department. The subscription rate and the space rate must be
16  equitably apportioned to cover the costs of publishing the
17  reporter.
18         (d)  An agency that designates an official reporter
19  need not publish the full text of an agency final order that
20  is rendered pursuant to s. 120.57(4) and that must be indexed
21  pursuant to paragraph (1)(a), if the final order is preserved
22  by the agency and made available for public inspection and
23  copying and the official reporter indexes the final order and
24  includes a synopsis of the order. A synopsis must include the
25  names of the parties to the order; any rule, statute, or
26  constitutional provision pertinent to the order; a summary of
27  the facts, if included in the order, which are pertinent to
28  the final disposition; and a summary of the final disposition.
29         (3)  Agency orders that must be indexed or listed are
30  documents of continuing legal value and must be permanently
31  preserved and made available to the public. Each agency to
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  1  which this chapter applies shall provide, under the direction
  2  of the Department of State, for the preservation of orders as
  3  required by this chapter and for maintaining an index to those
  4  orders.
  5         (4)  Each agency must provide any person who makes a
  6  request with a written description of its organization and the
  7  general course of its operations.
  8         Section 3.  Paragraphs (a), (c), and (d) of subsection
  9  (2), paragraphs (a), (b), (d), and (e) of subsection (3),
10  paragraph (a) of subsection (4), and paragraph (b) of
11  subsection (7) of section 120.54, Florida Statutes, 1996
12  Supplement, as amended by section 10 of chapter 96-159, Laws
13  of Florida, section 6 of chapter 96-320, Laws of Florida, and
14  section 9 of chapter 96-370, Laws of Florida, are amended to
15  read:
16         120.54  Rulemaking.--
17         (2)  RULE DEVELOPMENT; WORKSHOPS; NEGOTIATED
18  RULEMAKING.--
19         (a)  Except when the intended action is the repeal of a
20  rule, agencies shall provide notice of the development of
21  proposed rules by publication of a notice of rule development
22  in the Florida Administrative Weekly before providing notice
23  of a proposed rule as required by paragraph (3)(a).  The
24  notice of rule development shall indicate the subject area to
25  be addressed by rule development, provide a short, plain
26  explanation of the purpose and effect of the proposed rule
27  development, cite the specific legal authority for the
28  proposed rule development, and include the preliminary text of
29  the proposed rules, if available, or a statement of how a
30  person may promptly obtain, without cost, a copy of any
31  preliminary draft, if available.
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  1         (c)  An agency may hold public workshops for purposes
  2  of rule development.  An agency must hold public workshops,
  3  including workshops in various regions of the state or the
  4  agency's service area, for purposes of rule development if
  5  requested in writing by any affected person, unless the agency
  6  head explains in writing why a workshop is unnecessary.  The
  7  explanation is not final agency action subject to review
  8  pursuant to ss. 120.569 and 120.57.  The failure to provide
  9  the explanation when required may be a material error in
10  procedure pursuant to s. 120.56(1)(c).  When a workshop or
11  public hearing is held, the agency must ensure that the
12  persons responsible for preparing the proposed rule are
13  available to explain the agency's proposal and to respond to
14  questions or comments regarding the rule being developed.  The
15  workshop may be facilitated or mediated by a neutral third
16  person, or the agency may employ other types of dispute
17  resolution alternatives for the workshop that are appropriate
18  for rule development.  Notice of a rule development workshop
19  shall be by publication in the Florida Administrative Weekly
20  not less than 14 days prior to the date on which the workshop
21  is scheduled to be held and shall indicate the subject area
22  which will be addressed; the agency contact person; and the
23  place, date, and time of the workshop.
24         (d)1.  An agency may use negotiated rulemaking in
25  developing and adopting rules.  The agency should consider the
26  use of negotiated rulemaking when complex rules are being
27  drafted or strong opposition to the rules is anticipated. The
28  agency should consider, but is not limited to considering,
29  whether a balanced committee of interested persons who will
30  negotiate in good faith can be assembled, whether the agency
31  is willing to support the work of the negotiating committee,
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  1  and whether the agency can use the group consensus as the
  2  basis for its proposed rule.  Negotiated rulemaking uses a
  3  committee of designated representatives to draft a mutually
  4  acceptable proposed rule.
  5         2.  An agency that chooses to use the negotiated
  6  rulemaking process described in this paragraph shall publish
  7  in the Florida Administrative Weekly a notice of negotiated
  8  rulemaking that includes a listing of the representative
  9  groups that will be invited to participate in the negotiated
10  rulemaking process.  Any person who believes that his or her
11  interest is not adequately represented may apply to
12  participate within 30 days after publication of the notice.
13  All meetings of the negotiating committee shall be noticed and
14  open to the public pursuant to the provisions of this chapter.
15  The negotiating committee shall be chaired by a neutral
16  facilitator or mediator.
17         3.  The agency's decision to use negotiated rulemaking,
18  its selection of the representative groups, and approval or
19  denial of an application to participate in the negotiated
20  rulemaking process are not agency action. Nothing in this
21  subparagraph is intended to affect the rights of an affected
22  person to challenge a proposed rule developed under this
23  paragraph in accordance with s. 120.56(2).
24         (3)  ADOPTION PROCEDURES.--
25         (a)  Notices.--
26         1.  Prior to the adoption, amendment, or repeal of any
27  rule other than an emergency rule, an agency, upon approval of
28  the agency head, shall give notice of its intended action,
29  setting forth a short, plain explanation of the purpose and
30  effect of the proposed action; the full text of the proposed
31  rule or amendment and a summary thereof; a reference to the
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  1  specific rulemaking authority pursuant to which the rule is
  2  adopted; and a reference to the section or subsection of the
  3  Florida Statutes or the Laws of Florida being implemented,
  4  interpreted, or made specific.  The notice shall include a
  5  summary of the agency's statement of the estimated regulatory
  6  costs, if one has been prepared, based on the factors set
  7  forth in s. 120.541(2), and a statement that any person who
  8  wishes to provide the agency with information regarding the
  9  statement of estimated regulatory costs, or to provide a
10  proposal for a lower cost regulatory alternative as provided
11  by s. 120.541(1), must do so in writing within 21 days after
12  publication of the notice.  The notice must state the
13  procedure for requesting a public hearing on the proposed
14  rule. Except when the intended action is the repeal of a rule,
15  the notice shall include a reference both to the date on which
16  and to the place where the notice of rule development that is
17  required by subsection (2) appeared.
18         2.  The notice shall be published in the Florida
19  Administrative Weekly not less than 28 days prior to the
20  intended action. The proposed rule shall be available for
21  inspection and copying by the public at the time of the
22  publication of notice.
23         3.  The notice shall be mailed to all persons named in
24  the proposed rule and to all persons who, at least 14 days
25  prior to such mailing, have made requests of the agency for
26  advance notice of its proceedings. The agency shall also give
27  such notice as is prescribed by rule to those particular
28  classes of persons to whom the intended action is directed.
29         4.  The adopting agency shall file with the committee,
30  at least 21 days prior to the proposed adoption date, a copy
31  of each rule it proposes to adopt; a detailed written
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  1  statement of the facts and circumstances justifying the
  2  proposed rule; a copy of any statement of estimated regulatory
  3  costs that has been prepared pursuant to s. 120.541; a
  4  statement of the extent to which the proposed rule relates to
  5  federal standards or rules on the same subject; and the notice
  6  required by subparagraph 1.
  7         (b)  Special matters to be considered in rule
  8  adoption.--
  9         1.  Statement of estimated regulatory costs.--Prior to
10  the adoption, amendment, or repeal of any rule other than an
11  emergency rule, an agency is encouraged to prepare a statement
12  of estimated regulatory costs of the proposed rule, as
13  provided by s. 120.541.
14         2.  Small businesses, small counties, and small
15  cities.--
16         a.  Each agency, before the adoption, amendment, or
17  repeal of a rule, shall consider the impact of the rule on
18  small businesses as defined by s. 288.703 and the impact of
19  the rule on small counties or small cities as defined by s.
20  120.52.  Whenever practicable, an agency shall tier its rules
21  to reduce disproportionate impacts on small businesses, small
22  counties, or small cities to avoid regulating small
23  businesses, small counties, or small cities that do not
24  contribute significantly to the problem the rule is designed
25  to address.  An agency may define "small business" to include
26  businesses employing more than 100 persons, may define "small
27  county" to include those with populations of more than 75,000,
28  and may define "small city" to include those with populations
29  of more than 10,000, if it finds that such a definition is
30  necessary to adapt a rule to the needs and problems of small
31  businesses, small counties, or small cities.  The agency shall
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  1  consider each of the following methods for reducing the impact
  2  of the proposed rule on small businesses, small counties, and
  3  small cities, or any combination of these entities:
  4         (I)  Establishing less stringent compliance or
  5  reporting requirements in the rule.
  6         (II)  Establishing less stringent schedules or
  7  deadlines in the rule for compliance or reporting
  8  requirements.
  9         (III)  Consolidating or simplifying the rule's
10  compliance or reporting requirements.
11         (IV)  Establishing performance standards or
12  best-management practices to replace design or operational
13  standards in the rule.
14         (V)  Exempting small businesses, small counties, or
15  small cities from any or all requirements of the rule.
16         b.(I)  If the agency determines that the proposed
17  action will affect small businesses as defined by the agency
18  as provided in sub-subparagraph a., the agency shall send
19  written notice of the rule to the small business ombudsman of
20  the Office of Tourism, Trade, and Economic Development
21  Department of Commerce not less than 28 21 days prior to the
22  intended action.
23         (II)  Each agency shall adopt those regulatory
24  alternatives offered by the small business ombudsman and
25  provided to the agency no later than 21 days after the
26  ombudsman's receipt of the written notice of the rule which it
27  finds are feasible and consistent with the stated objectives
28  of the proposed rule and which would reduce the impact on
29  small businesses. When regulatory alternatives are offered by
30  the small business ombudsman, the 90-day period for filing the
31  rule is extended for a period of 21 days.
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  1         (III)  If an agency does not adopt all alternatives
  2  offered pursuant to this sub-subparagraph, it shall, prior to
  3  rule adoption or amendment and pursuant to subparagraph (d)1.,
  4  file a detailed written statement with the committee
  5  explaining the reasons for failure to adopt such alternatives.
  6  Within 3 working days of the filing of such notice, the agency
  7  shall send a copy of such notice to the small business
  8  ombudsman.
  9         (d)  Modification or withdrawal of proposed rules.--
10         1.  After the final public hearing on the proposed
11  rule, or after the time for requesting a hearing has expired,
12  if the rule has not been changed from the rule as previously
13  filed with the committee, or contains only technical changes,
14  the adopting agency shall file a notice to that effect with
15  the committee at least 7 days prior to filing the rule for
16  adoption.  Any change, other than a technical change that does
17  not affect the substance of the rule, must be supported by the
18  record of public hearings held on the rule, must be in
19  response to written material received on or before the date of
20  the final public hearing, or must be in response to a proposed
21  objection by the committee. In addition, when any change is
22  made in a proposed rule, other than a technical change, the
23  adopting agency shall provide a copy of a notice of change by
24  certified mail or actual delivery to any person who requests
25  it in writing no later than 21 days after the notice required
26  in paragraph (a). The agency shall file the notice with the
27  committee, along with the reasons for such change, and provide
28  the notice to persons requesting it, at least 21 days prior to
29  filing the rule for adoption. The notice shall be published in
30  the Florida Administrative Weekly at least 21 days prior to
31
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  1  filing the rule for adoption.  This subparagraph does not
  2  apply to emergency rules adopted pursuant to subsection (4).
  3         2.  After the notice required by paragraph (a) and
  4  prior to adoption, the agency may withdraw the rule in whole
  5  or in part.
  6         3.  After adoption and before the effective date, a
  7  rule may be modified or withdrawn only in response to an
  8  objection by the committee or may be modified to extend the
  9  effective date by not more than 60 days when the committee has
10  notified the agency that an objection to the rule is being
11  considered.
12         4.  The agency shall give notice of its decision to
13  withdraw or modify a rule in the first available issue of the
14  publication in which the original notice of rulemaking was
15  published, shall notify those persons described in
16  subparagraph (a)3. in accordance with the requirements of that
17  subparagraph, and shall notify the Department of State if the
18  rule is required to be filed with the Department of State.
19         5.  After a rule has become effective, it may be
20  repealed or amended only through the rulemaking procedures
21  specified in this chapter.
22         (e)  Filing for final adoption; effective date.--
23         1.  If the adopting agency is required to publish its
24  rules in the Florida Administrative Code, it shall file with
25  the Department of State three certified copies of the rule it
26  proposes to adopt, a summary of the rule, a summary of any
27  hearings held on the rule, and a detailed written statement of
28  the facts and circumstances justifying the rule. Agencies not
29  required to publish their rules in the Florida Administrative
30  Code shall file one certified copy of the proposed rule, and
31  the other material required by this subparagraph, in the
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  1  office of the agency head, and such rules shall be open to the
  2  public.
  3         2.  Filings shall be made no less than 28 days nor more
  4  than 90 days after the notice required by paragraph (a). When
  5  If a required notice of change is required to be published
  6  prior to the expiration of the time to file the rule for
  7  adoption, the 90-day period during which a rule must be filed
  8  for adoption is extended to 45 21 days after the date of
  9  publication. If notice of a public hearing is published prior
10  to the expiration of the time to file the rule for adoption
11  held, the period during which a rule must be filed for
12  adoption 90-day limit is extended to 45 21 days after
13  adjournment of the final hearing on the rule, 21 days after
14  receipt of all material authorized to be submitted at the
15  hearing, or 21 days after receipt of the transcript, if one is
16  made, whichever is latest. The term For purposes of this
17  subparagraph, "public hearing" includes any public meeting
18  held by any agency at which the rule is considered.  The
19  filing of a petition for an administrative determination under
20  the provisions of s. 120.56(2) shall toll the 90-day period
21  during which a rule must be filed for adoption until the
22  administrative law judge has filed the final order with the
23  clerk.
24         3.  At the time a rule is filed, the agency shall
25  certify that the time limitations prescribed by this paragraph
26  have been complied with, that all statutory rulemaking
27  requirements have been met, and that there is no
28  administrative determination pending on the rule.
29         4.  At the time a rule is filed, the committee shall
30  certify whether the agency has responded in writing to all
31  material and timely written comments or written inquiries made
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  1  on behalf of the committee. The department shall reject any
  2  rule not filed within the prescribed time limits; that does
  3  not satisfy all statutory rulemaking requirements; upon which
  4  an agency has not responded in writing to all material and
  5  timely written inquiries or written comments; upon which an
  6  administrative determination is pending; or which does not
  7  include a statement of estimated regulatory costs, if
  8  required.
  9         5.  If a rule has not been adopted within the time
10  limits imposed by this paragraph or has not been adopted in
11  compliance with all statutory rulemaking requirements, the
12  agency proposing the rule shall withdraw the rule and give
13  notice of its action in the next available issue of the
14  Florida Administrative Weekly.
15         6.  The proposed rule shall be adopted on being filed
16  with the Department of State and become effective 20 days
17  after being filed, on a later date specified in the rule, or
18  on a date required by statute. Rules not required to be filed
19  with the Department of State shall become effective when
20  adopted by the agency head or on a later date specified by
21  rule or statute. If the committee notifies an agency that an
22  objection to a rule is being considered, the agency may
23  postpone the adoption of the rule to accommodate review of the
24  rule by the committee.  When an agency postpones adoption of a
25  rule to accommodate review by the committee, the 90-day period
26  for filing the rule is tolled until the committee notifies the
27  agency that it has completed its review of the rule.
28         (4)  EMERGENCY RULES.--
29         (a)  If an agency finds that an immediate danger to the
30  public health, safety, or welfare requires emergency action,
31  the agency may adopt any rule necessitated by the immediate
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  1  danger. The agency may adopt a rule by any procedure which is
  2  fair under the circumstances if:
  3         1.  The procedure provides at least the procedural
  4  protection given by other statutes, the State Constitution, or
  5  the United States Constitution.
  6         2.  The agency takes only that action necessary to
  7  protect the public interest under the emergency procedure.
  8         3.  The agency publishes in writing at the time of, or
  9  prior to, its action the specific facts and reasons for
10  finding an immediate danger to the public health, safety, or
11  welfare and its reasons for concluding that the procedure used
12  is fair under the circumstances. In any event, notice of
13  emergency rules, other than those of educational units or
14  units of government with jurisdiction in only one or a part of
15  one county, including the full text of the rules, shall be
16  published in the first available issue of the Florida
17  Administrative Weekly and provided to the committee. The
18  agency's findings of immediate danger, necessity, and
19  procedural fairness shall be judicially reviewable.
20         (7)  PETITION TO INITIATE RULEMAKING.--
21         (b)  If the petition filed under this subsection is
22  directed to an existing rule which the agency has not adopted
23  by the rulemaking procedures or requirements set forth in this
24  chapter, the agency shall, not later than 30 days following
25  the date of filing a petition, initiate rulemaking, otherwise
26  comply with the requested action, or provide notice in the
27  Florida Administrative Weekly that the agency will hold a
28  public hearing on the petition within 30 days after
29  publication of the notice.  The purpose of the public hearing
30  is to consider the comments of the public directed to the
31  agency rule which has not been adopted by the rulemaking
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  1  procedures or requirements of this chapter, its scope and
  2  application, and to consider whether the public interest is
  3  served adequately by the application of the rule on a
  4  case-by-case basis, as contrasted with its adoption by the
  5  rulemaking procedures or requirements set forth in this
  6  chapter.
  7         Section 4.  Paragraph (a) of subsection (1) of section
  8  120.541, Florida Statutes, 1996 Supplement, is amended to
  9  read:
10         120.541  Statement of estimated regulatory costs.--
11         (1)(a)  A substantially affected person, within 21 days
12  after publication of the notice provided under s.
13  120.54(3)(a), may submit to an agency a good faith written
14  proposal for a lower cost regulatory alternative to a proposed
15  rule which substantially accomplishes the objectives of the
16  law being implemented.  The proposal may include the
17  alternative of not adopting any rule, so long as the proposal
18  explains how the lower costs and objectives of the law will be
19  achieved by not adopting any rule. If such a proposal is
20  submitted, the 90-day period for filing the rule is extended
21  21 days.
22         Section 5.  Subsections (1), (3), (5), and (6) of
23  section 120.542, Florida Statutes, 1996 Supplement, are
24  amended, present subsection (7) of that section is renumbered
25  as subsection (8) and amended, present subsection (8) of that
26  section is renumbered as subsection (9), and a new subsection
27  (7) is added to that section, to read:
28         120.542  Variances and waivers.--
29         (1)  Strict application of uniformly applicable rule
30  requirements can lead to unreasonable, unfair, and unintended
31  results in particular instances. The Legislature finds that it
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  1  is appropriate in such cases to adopt a procedure for agencies
  2  to provide relief to persons subject to regulation. A public
  3  employee is not a person subject to regulation under this
  4  section for the purpose of petitioning for a variance or
  5  waiver to a rule that affects that public employee in his or
  6  her capacity as a public employee. Agencies are authorized to
  7  grant variances and waivers to requirements of their rules
  8  consistent with this section and with rules adopted under the
  9  authority of this section. An agency may limit the duration of
10  any grant of a variance or waiver or otherwise impose
11  conditions on the grant only to the extent necessary for the
12  purpose of the underlying statute to be achieved. This section
13  does not authorize agencies to grant variances or waivers to
14  statutes or to rules required by the Federal Government for
15  the agency's implementation or retention of any federally
16  approved or delegated program, except as allowed by the
17  program or when the variance or waiver is also approved by the
18  appropriate agency of the Federal Government.  This section is
19  supplemental to, and does not abrogate, the variance and
20  waiver provisions in any other statute.
21         (3)  The Governor and Cabinet, sitting as the
22  Administration Commission, shall adopt uniform rules of
23  procedure pursuant to the requirements of s. 120.54(5)
24  establishing procedures for granting or denying petitions for
25  variances and waivers.  The uniform rules shall may include
26  procedures for the granting, denying, or revoking or denial of
27  emergency and temporary variances and waivers. Such provisions
28  may provide for expedited timeframes, waiver of or limited
29  public notice, and limitations on comments on the petition in
30  the case of such temporary or emergency variances and waivers.
31
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  1         (5)  A person who is subject to regulation by an agency
  2  rule may file a petition with that agency, with a copy to the
  3  committee, requesting a variance or waiver from the agency's
  4  rule.  In addition to any requirements mandated by the uniform
  5  rules, each petition shall specify:
  6         (a)  The rule from which a variance or waiver is
  7  requested.
  8         (b)  The type of action requested.
  9         (c)  The specific facts that would justify a waiver or
10  variance for the petitioner.
11         (d)  The reason why the variance or the waiver
12  requested would serve the purposes of the underlying statute.
13         (6)  Within 15 days after receipt of a petition for
14  variance or waiver, an agency shall provide notice of the
15  petition to the Department of State, which shall publish
16  notice of the petition in the first available issue of the
17  Florida Administrative Weekly. The notice shall contain the
18  name of the petitioner, the date the petition was filed, the
19  rule number and nature of the rule from which variance or
20  waiver is sought, and an explanation of how a copy of the
21  petition can be obtained. The uniform rules shall provide a
22  means for interested persons to provide comments on the
23  petition.
24         (7)  Except for requests for emergency variances or
25  waivers, within 30 days after receipt of a petition for a
26  variance or waiver, an agency shall review the petition and
27  request submittal of all additional information that the
28  agency is permitted by this section to require. Within 30 days
29  after receipt of such additional information, the agency shall
30  review it and may request only that information needed to
31  clarify the additional information or to answer new questions
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  1  raised by or directly related to the additional information.
  2  If the petitioner asserts that any request for additional
  3  information is not authorized by law or by rule of the
  4  affected agency, the agency shall proceed, at the petitioner's
  5  written request, to process the petition.
  6         (8)(7)  An agency shall grant or deny a petition for
  7  variance or waiver within 90 days after of its receipt of the
  8  original petition, the last item of timely requested
  9  additional material, or the petitioner's written request to
10  finish processing the petition. A.  If such petition is not
11  granted or denied within 90 days after of receipt of a
12  completed, the petition is shall be deemed approved.  A copy
13  of the An order granting or denying the petition shall be
14  filed with the committee in writing and shall contain a
15  statement of the relevant facts and reasons supporting the
16  agency's action. The agency shall provide notice of the
17  disposition of the petition to the Department of State, which
18  shall publish the notice in the next available issue of the
19  Florida Administrative Weekly. The notice shall contain a
20  reference to the place and date of publication of the notice
21  of the petition, the date of the order denying or approving
22  the variance or waiver, the general basis for the agency
23  decision, and an explanation of how a copy of the order can be
24  obtained. The agency's decision to grant or deny the petition
25  shall be supported by competent substantial evidence and is
26  subject to ss. 120.569 and 120.57.  Any proceeding pursuant to
27  ss. 120.569 and 120.57 in regard to a variance or waiver shall
28  be limited to the agency action on the request for the
29  variance or waiver, except that a proceeding in regard to a
30  variance or waiver may be consolidated with any other
31  proceeding authorized by this chapter.
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  1         (9)(8)  Each agency shall maintain a record of the type
  2  and disposition of each petition, including temporary or
  3  emergency variances and waivers, filed pursuant to this
  4  section.  On October 1 of each year, each agency shall file a
  5  report with the Governor, the President of the Senate, and the
  6  Speaker of the House of Representatives listing the number of
  7  petitions filed requesting variances to each agency rule, the
  8  number of petitions filed requesting waivers to each agency
  9  rule, and the disposition of all petitions. Temporary or
10  emergency variances and waivers, and the reasons for granting
11  or denying temporary or emergency variances and waivers, shall
12  be identified separately from other waivers and variances.
13         Section 6.  Paragraph (f) of subsection (4) of section
14  120.56, Florida Statutes, 1996 Supplement, is amended to read:
15         120.56  Challenges to rules.--
16         (4)  CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;
17  SPECIAL PROVISIONS.--
18         (f)  All proceedings to determine a violation of s.
19  120.54(1)(a) shall be brought pursuant to this subsection. A
20  proceeding pursuant to this subsection may be consolidated
21  brought in conjunction with a proceeding under any other
22  section of this chapter or consolidated with such a
23  proceeding. Nothing in this paragraph shall be construed to
24  prevent a party whose substantial interests have been
25  determined by an agency action from bringing a proceeding
26  pursuant to s. 120.57(1)(e).
27         Section 7.  Subsection (1) and paragraph (a) of
28  subsection (2) of section 120.569, Florida Statutes, 1996
29  Supplement, are amended to read:
30         120.569  Decisions which affect substantial
31  interests.--
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  1         (1)  The provisions of this section apply in all
  2  proceedings in which the substantial interests of a party are
  3  determined by an agency, unless the parties are proceeding
  4  under s. 120.573 or s. 120.574. Unless waived by all parties,
  5  s. 120.57(1) applies whenever the proceeding involves a
  6  disputed issue of material fact.  Unless otherwise agreed, s.
  7  120.57(2) applies in all other cases. Parties shall be
  8  notified of any order, including a final order. Unless waived,
  9  a copy of the order shall be delivered or mailed to each party
10  or the party's attorney of record at the address of record.
11  Each notice shall inform the recipient of any administrative
12  hearing or judicial review that is available under this
13  section, s. 120.57, or s. 120.68; shall indicate the procedure
14  which must be followed to obtain the hearing or judicial
15  review; and shall state the time limits which apply.
16         (2)(a)  Except for any proceeding conducted as
17  prescribed in s. 120.56, a petition or request for a hearing
18  under this section shall be filed with the agency. If the
19  agency requests an administrative law judge from the division,
20  it shall so notify the division within 15 days after receipt
21  of the petition or request. A request for a hearing shall be
22  granted or denied within 15 days after receipt. On the request
23  of any agency, the division shall assign an administrative law
24  judge with due regard to the expertise required for the
25  particular matter. The referring agency shall take no further
26  action with respect to a the formal proceeding under s.
27  120.57(1), except as a party litigant, as long as the division
28  has jurisdiction over the formal proceeding under s.
29  120.57(1). Any party may request the disqualification of the
30  administrative law judge by filing an affidavit with the
31
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  1  division prior to the taking of evidence at a hearing, stating
  2  the grounds with particularity.
  3         Section 8.  Section 120.57, Florida Statutes, 1996
  4  Supplement, as amended by section 19 of chapter 96-159, Laws
  5  of Florida, and section 1 of chapter 96-423, Laws of Florida,
  6  is amended to read:
  7         120.57  Additional procedures for particular cases.--
  8         (1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS
  9  INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--
10         (a)  Except as provided in ss. 120.80 and 120.81, an
11  administrative law judge assigned by the division shall
12  conduct all hearings under this subsection, except for
13  hearings before agency heads or a member thereof. If the
14  administrative law judge assigned to a hearing becomes
15  unavailable, the division shall assign another administrative
16  law judge who shall use any existing record and receive any
17  additional evidence or argument, if any, which the new
18  administrative law judge finds necessary.
19         (b)  All parties shall have an opportunity to respond,
20  to present evidence and argument on all issues involved, to
21  conduct cross-examination and submit rebuttal evidence, to
22  submit proposed findings of facts and orders, to file
23  exceptions to the presiding officer's recommended order, and
24  to be represented by counsel or other qualified
25  representative. When appropriate, the general public may be
26  given an opportunity to present oral or written
27  communications. If the agency proposes to consider such
28  material, then all parties shall be given an opportunity to
29  cross-examine or challenge or rebut the material.
30         (c)  Hearsay evidence may be used for the purpose of
31  supplementing or explaining other evidence, but it shall not
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  1  be sufficient in itself to support a finding unless it would
  2  be admissible over objection in civil actions.
  3         (d)  Notwithstanding s. 120.569(2)(e), similar fact
  4  evidence of other violations, wrongs, or acts is admissible
  5  when relevant to prove a material fact in issue, such as proof
  6  of motive, opportunity, intent, preparation, plan, knowledge,
  7  identity, or absence of mistake or accident, but it is
  8  inadmissible when the evidence is relevant solely to prove bad
  9  character or propensity. When the state in an administrative
10  proceeding intends to offer evidence of other acts or offenses
11  under this paragraph, the state shall furnish to the party
12  whose substantial interests are being determined and whose
13  other acts or offenses will be the subject of such evidence,
14  no fewer than 10 days before commencement of the proceeding, a
15  written statement of the acts or offenses it intends to offer,
16  describing them and the evidence the state intends to offer
17  with particularity. Notice is not required for evidence of
18  acts or offenses which is used for impeachment or on rebuttal.
19         (e)1.  Any agency action that determines the
20  substantial interests of a party and that is based on an
21  unadopted rule is subject to de novo review by an
22  administrative law judge.
23         2.  The agency action shall not be presumed valid or
24  invalid.  The agency must demonstrate that the unadopted rule:
25         a.  Is within the powers, functions, and duties
26  delegated by the Legislature or, if the agency is operating
27  pursuant to authority derived from the State Constitution, is
28  within that authority;
29         b.  Does not enlarge, modify, or contravene the
30  specific provisions of law implemented;
31
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  1         c.  Is not vague, establishes adequate standards for
  2  agency decisions, or does not vest unbridled discretion in the
  3  agency;
  4         d.  Is not arbitrary or capricious;
  5         e.  Is not being applied to the substantially affected
  6  party without due notice;
  7         f.  Is supported by competent and substantial evidence;
  8  and
  9         g.  Does not impose excessive regulatory costs on the
10  regulated person, county, or city.
11         3.  The recommended and final orders in any proceeding
12  shall be governed by the provisions of paragraphs (i) and (j),
13  except that the administrative law judge's determination
14  regarding the unadopted rule shall not be rejected by the
15  agency unless the agency first determines from a review of the
16  complete record, and states with particularity in the order,
17  that such determination is clearly erroneous or does not
18  comply with essential requirements of law.  In any proceeding
19  for review under s. 120.68, if the court finds that the
20  agency's rejection of the determination regarding the
21  unadopted rule does not comport with the provisions of this
22  subparagraph, the agency action shall be set aside and the
23  court shall award to the prevailing party the reasonable costs
24  and a reasonable attorney's fee for the initial proceeding and
25  the proceeding for review.
26         (f)  The record in a case governed by this subsection
27  shall consist only of:
28         1.  All notices, pleadings, motions, and intermediate
29  rulings.
30         2.  Evidence admitted.
31         3.  Those matters officially recognized.
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  1         4.  Proffers of proof and objections and rulings
  2  thereon.
  3         5.  Proposed findings and exceptions.
  4         6.  Any decision, opinion, order, or report by the
  5  presiding officer.
  6         7.  All staff memoranda or data submitted to the
  7  presiding officer during the hearing or prior to its
  8  disposition, after notice of the submission to all parties,
  9  except communications by advisory staff as permitted under s.
10  120.66(1), if such communications are public records.
11         8.  All matters placed on the record after an ex parte
12  communication.
13         9.  The official transcript.
14         (g)  The agency shall accurately and completely
15  preserve all testimony in the proceeding, and, on the request
16  of any party, it shall make a full or partial transcript
17  available at no more than actual cost.
18         (h)  Findings of fact shall be based upon a
19  preponderance of the evidence, except in penal or licensure
20  disciplinary proceedings or except as otherwise provided by
21  statute, and shall be based exclusively on the evidence of
22  record and on matters officially recognized.
23         (i)  The presiding officer shall complete and submit to
24  the agency and all parties a recommended order consisting of
25  findings of fact, conclusions of law, and recommended
26  disposition or penalty, if applicable, and any other
27  information required by law to be contained in the final
28  order. All proceedings conducted pursuant to this subsection
29  shall be de novo. The agency shall allow each party 15 days in
30  which to submit written exceptions to the recommended order.
31
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  1         (j)  The agency may adopt the recommended order as the
  2  final order of the agency. The agency in its final order may
  3  reject or modify the conclusions of law and interpretation of
  4  administrative rules over which it has substantive
  5  jurisdiction.  Rejection or modification of conclusions of law
  6  may not form the basis for rejection or modification of
  7  findings of fact.  The agency may not reject or modify the
  8  findings of fact unless the agency first determines from a
  9  review of the entire record, and states with particularity in
10  the order, that the findings of fact were not based upon
11  competent substantial evidence or that the proceedings on
12  which the findings were based did not comply with essential
13  requirements of law. The agency may accept the recommended
14  penalty in a recommended order, but may not reduce or increase
15  it without a review of the complete record and without stating
16  with particularity its reasons therefor in the order, by
17  citing to the record in justifying the action.
18         (k)  If a recommended order is submitted to an agency,
19  the agency shall provide a copy of its final order to the
20  division within 15 days after the order is filed with the
21  agency clerk.
22         (l)  Notwithstanding any law to the contrary, when
23  statutes or rules impose conflicting time requirements for the
24  scheduling issuance of expedited hearings or issuance of
25  recommended or final orders, the director of the division
26  shall have the authority to set the proceedings for the
27  orderly operation of this chapter.
28         (2)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS NOT
29  INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--In any case to
30  which subsection (1) does not apply:
31         (a)  The agency shall:
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  1         1.  Give reasonable notice to affected persons of the
  2  action of the agency, whether proposed or already taken, or of
  3  its decision to refuse action, together with a summary of the
  4  factual, legal, and policy grounds therefor.
  5         2.  Give parties or their counsel an opportunity, at a
  6  convenient time and place, to present to the agency or hearing
  7  officer written or oral evidence in opposition to the action
  8  of the agency or to its refusal to act, or a written statement
  9  challenging the grounds upon which the agency has chosen to
10  justify its action or inaction.
11         3.  If the objections of the parties are overruled,
12  provide a written explanation within 7 days.
13         (b)  The record shall only consist of:
14         1.  The notice and summary of grounds.
15         2.  Evidence received.
16         3.  All written statements submitted.
17         4.  Any decision overruling objections.
18         5.  All matters placed on the record after an ex parte
19  communication.
20         6.  The official transcript.
21         7.  Any decision, opinion, order, or report by the
22  presiding officer.
23         (3)  ADDITIONAL PROCEDURES APPLICABLE TO PROTESTS TO
24  CONTRACT BIDDING OR AWARD.--Agencies subject to this chapter
25  shall utilize the uniform rules of procedure, which provide An
26  agency which enters into a contract pursuant to the provisions
27  of ss. 282.303-282.313, chapter 255, chapter 287, or chapters
28  334-349 shall adopt rules specifying procedures for the
29  resolution of protests arising from the contract bidding
30  process. Such rules shall at least provide that:
31
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  1         (a)  The agency shall provide notice of its decision or
  2  intended decision concerning a bid solicitation or a contract
  3  award as follows:
  4         1.  For a bid solicitation, notice of a decision or
  5  intended decision shall be given by United States mail or by
  6  hand delivery.
  7         2.  For any decision of the Division of Purchasing of
  8  the Department of Management Services concerning a request by
  9  an agency for approval of an exceptional purchase under part I
10  of chapter 287 and the rules of the Division of Purchasing,
11  notice of a decision or intended decision shall be given by
12  posting such notice in the office of the Division of
13  Purchasing.
14         3.  For any other agency decision, notice of a decision
15  or intended decision shall be given either by posting the bid
16  tabulation at the location where the bids were opened or by
17  certified United States mail or other express delivery
18  service, return receipt requested.
19
20  The notice required by this paragraph shall contain the
21  following statement:  "Failure to file a protest within the
22  time prescribed in s. 120.57(3), Florida Statutes, shall
23  constitute a waiver of proceedings under chapter 120, Florida
24  Statutes."
25         (b)  Any person who is adversely affected by the agency
26  decision or intended decision shall file with the agency a
27  notice of protest in writing within 72 hours after the posting
28  of the bid tabulation or after receipt of the notice of the
29  agency decision or intended decision and shall file a formal
30  written protest within 10 days after filing the notice of
31  protest. With respect to a protest of the specifications
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  1  contained in an invitation to bid or in a request for
  2  proposals, the notice of protest shall be filed in writing
  3  within 72 hours after the receipt of notice of the project
  4  plans and specifications or intended project plans and
  5  specifications in an invitation to bid or request for
  6  proposals, and the formal written protest shall be filed
  7  within 10 days after the date the notice of protest is filed.
  8  Failure to file a notice of protest or failure to file a
  9  formal written protest shall constitute a waiver of
10  proceedings under this chapter. The formal written protest
11  shall state with particularity the facts and law upon which
12  the protest is based. Saturdays, Sundays, and legal holidays
13  shall be excluded in the computation of the 72-hour time
14  periods provided by this paragraph.
15         (c)  Upon receipt of the formal written protest which
16  has been timely filed, the agency shall stop the bid
17  solicitation process or the contract award process until the
18  subject of the protest is resolved by final agency action,
19  unless the agency head sets forth in writing particular facts
20  and circumstances which require the continuance of the bid
21  solicitation process or the contract award process without
22  delay in order to avoid an immediate and serious danger to the
23  public health, safety, or welfare.
24         (d)1.  The agency shall provide an opportunity to
25  resolve the protest by mutual agreement between the parties
26  within 7 days, excluding Saturdays, Sundays, and legal
27  holidays, after receipt of a formal written protest.
28         2.  If the subject of a protest is not resolved by
29  mutual agreement within 7 days, excluding Saturdays, Sundays,
30  and legal holidays, after receipt of the formal written
31  protest, and if there is no disputed issue of material fact,
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  1  an informal proceeding shall be conducted pursuant to
  2  subsection (2) and applicable agency rules before a person
  3  whose qualifications have been prescribed by rules of the
  4  agency.
  5         3.  If the subject of a protest is not resolved by
  6  mutual agreement within 7 days, excluding Saturdays, Sundays,
  7  and legal holidays, after receipt of the formal written
  8  protest, and if there is a disputed issue of material fact,
  9  the agency shall refer the protest to the division for
10  proceedings under subsection (1).
11         (e)  Upon receipt of a formal written protest referred
12  pursuant to this subsection, the director of the division
13  shall expedite the hearing and assign an administrative law
14  judge who shall commence a hearing within 30 days after the
15  receipt of the formal written protest by the division and
16  enter a recommended order within 30 days after the hearing or
17  within 30 days after receipt of the hearing transcript by the
18  administrative law judge, whichever is later. Each party shall
19  be allowed 10 days in which to submit written exceptions to
20  the recommended order.  A final order shall be entered by the
21  agency within 30 days of the entry of a recommended order. The
22  provisions of this paragraph may be waived upon stipulation by
23  all parties.
24         (f)  In a competitive-procurement protest, no
25  submissions made after the bid or proposal opening amending or
26  supplementing the bid or proposal shall be considered. Unless
27  otherwise provided by statute, the burden of proof shall rest
28  with the party protesting the proposed agency action.  In a
29  competitive-procurement protest, other than a rejection of all
30  bids, the administrative law judge shall conduct a de novo
31  proceeding to determine whether the agency's proposed action
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  1  is contrary to the agency's governing statutes, the agency's
  2  rules or policies, or the bid or proposal specifications. The
  3  standard of proof for such proceedings shall be whether the
  4  proposed agency action was clearly erroneous, contrary to
  5  competition, arbitrary, or capricious. In any bid-protest
  6  proceeding contesting an intended agency action to reject all
  7  bids, the standard of review by an administrative law judge
  8  shall be whether the agency's intended action is illegal,
  9  arbitrary, dishonest, or fraudulent.
10         (4)  INFORMAL DISPOSITION.--Unless precluded by law,
11  informal disposition may be made of any proceeding by
12  stipulation, agreed settlement, or consent order.
13         (5)  APPLICABILITY.--This section does not apply to
14  agency investigations preliminary to agency action.
15         Section 9.  Section 120.573, Florida Statutes, 1996
16  Supplement, is amended to read:
17         120.573  Mediation of disputes.--Each announcement of
18  an agency action that affects substantial interests shall
19  advise whether mediation of the administrative dispute for the
20  type of agency action announced is available and that choosing
21  mediation does not affect the right to an administrative
22  hearing.  If the agency and all parties to the administrative
23  action agree to mediation, in writing, within 10 days after
24  the time period stated in the announcement for election of an
25  administrative remedy under ss. 120.569 and 120.57, the time
26  limitations imposed by ss. 120.569 and 120.57 shall be tolled
27  to allow the agency and parties to mediate the administrative
28  dispute.  The mediation shall be concluded within 60 days of
29  such agreement unless otherwise agreed by the parties.  The
30  mediation agreement shall include provisions for mediator
31  selection, the allocation of costs and fees associated with
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  1  mediation, and the mediating parties' understanding regarding
  2  the confidentiality of discussions and documents introduced
  3  during mediation.  If mediation results in settlement of the
  4  administrative dispute, the agency shall enter a final order
  5  incorporating the agreement of the parties.  If mediation
  6  terminates without settlement of the dispute, the agency shall
  7  notify the parties in writing that the administrative hearing
  8  processes under ss. 120.569 and 120.57 are resumed remain
  9  available for disposition of the dispute and the notice shall
10  state with particularity the deadlines for challenging the
11  agency action and electing remedies under ss. 120.569 and
12  120.57.
13         Section 10.  Paragraph (c) of subsection (1) of section
14  120.574, Florida Statutes, 1996 Supplement, is amended to
15  read:
16         120.574  Summary hearing.--
17         (1)
18         (c)  Intervenors in the proceeding shall be governed by
19  the decision of the original parties administrative law judge
20  regarding whether the case will proceed in accordance with the
21  summary hearing process and shall not have standing to
22  challenge that decision.
23         Section 11.  Paragraph (a) of subsection (4) of section
24  120.595, Florida Statutes, 1996 Supplement, is amended to
25  read:
26         120.595  Attorney's fees.--
27         (4)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
28  120.56(4).--
29         (a)  Upon entry of a final order that all or part of an
30  agency statement violates s. 120.54(1)(a), the administrative
31  law judge shall award reasonable costs and reasonable
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  1  attorney's fees to the petitioner, unless the agency
  2  demonstrates that the statement is required by the Federal
  3  Government to implement or retain a delegated or approved
  4  program or to meet a condition to receipt of federal funds.
  5         Section 12.  Subsections (3) and (6) of section 120.60,
  6  Florida Statutes, 1996 Supplement, are amended to read:
  7         120.60  Licensing.--
  8         (3)  Each applicant shall be given written notice
  9  either personally or by mail that the agency intends to grant
10  or deny, or has granted or denied, the application for
11  license. The notice must state with particularity the grounds
12  or basis for the issuance or denial of the license, except
13  when issuance is a ministerial act.  Unless waived, a copy of
14  the notice shall be delivered or mailed to each party's
15  attorney of record and to each person who has requested notice
16  of agency action. Each notice shall inform the recipient of
17  the basis for the agency decision, shall inform the recipient
18  of any administrative hearing pursuant to ss. 120.569 and
19  120.57 or judicial review pursuant to s. 120.68 which may be
20  available, shall indicate the procedure which must be
21  followed, and shall state the applicable time limits. The
22  issuing agency shall certify the date the notice was mailed or
23  delivered, and the notice and the certification shall be filed
24  with the agency clerk.
25         (6)  If the agency finds that immediate serious danger
26  to the public health, safety, or welfare requires emergency
27  suspension, restriction, or limitation of a license, the
28  agency may take such action by any procedure that is fair
29  under the circumstances if:
30
31
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  1         (a)  The procedure provides at least the same
  2  procedural protection as is given by other statutes, the State
  3  Constitution, or the United States Constitution;
  4         (b)  The agency takes only that action necessary to
  5  protect the public interest under the emergency procedure; and
  6         (c)  The agency states in writing at the time of, or
  7  prior to, its action the specific facts and reasons for
  8  finding an immediate danger to the public health, safety, or
  9  welfare and its reasons for concluding that the procedure used
10  is fair under the circumstances. The agency's findings of
11  immediate danger, necessity, and procedural fairness are
12  judicially reviewable.  it shall show compliance in its order
13  with the requirements imposed by s. 120.54(4) on agencies
14  making emergency rules. Summary suspension, restriction, or
15  limitation may be ordered, but a suspension or revocation
16  proceeding pursuant to ss. 120.569 and 120.57 shall also be
17  promptly instituted and acted upon.
18         Section 13.  Subsection (1) of section 120.65, Florida
19  Statutes, 1996 Supplement, is amended to read:
20         120.65  Administrative law judges.--
21         (1)  The Division of Administrative Hearings within the
22  Department of Management Services shall be headed by a
23  director who shall be appointed by the Administration
24  Commission and confirmed by the Senate.  The director, who
25  shall also serve as the chief administrative law judge, and
26  any deputy chief administrative law judge must possess the
27  same minimum qualifications as the administrative law judges
28  employed by the division.  The division shall be a separate
29  budget entity, and the director shall be its agency head for
30  all purposes.  The Department of Management Services shall
31  provide administrative support and service to the division to
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  1  the extent requested by the director. The division shall not
  2  be subject to control, supervision, or direction by the
  3  Department of Management Services in any manner, including,
  4  but not limited to, personnel, purchasing, transactions
  5  involving real or personal property, and budgetary matters.
  6         Section 14.  Subsections (2) and (3) of section 120.66,
  7  Florida Statutes, 1996 Supplement, are amended to read:
  8         120.66  Ex parte communications.--
  9         (2)  A presiding officer, including an agency head or
10  designee, who is involved in the decisional process and who
11  receives an ex parte communication in violation of subsection
12  (1) shall place on the record of the pending matter all
13  written communications received, all written responses to such
14  communications, and a memorandum stating the substance of all
15  oral communications received and all oral responses made, and
16  shall also advise all parties that such matters have been
17  placed on the record.  Any party desiring to rebut the ex
18  parte communication shall be allowed to do so, if such party
19  requests the opportunity for rebuttal within 10 days after
20  notice of such communication. The presiding officer may, if
21  necessary to eliminate the effect of an ex parte
22  communication, withdraw from the proceeding, in which case the
23  entity that appointed the presiding officer division shall
24  assign a successor.
25         (3)  Any person who makes an ex parte communication
26  prohibited by subsection (1), and any presiding officer,
27  including an agency head or designee, who fails to place in
28  the record any such communication, is in violation of this act
29  and may be assessed a civil penalty not to exceed $500 or be
30  subjected to other disciplinary action.
31
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  1         Section 15.  Subsection (3) of section 120.68, Florida
  2  Statutes, 1996 Supplement, is amended to read:
  3         120.68  Judicial review.--
  4         (3)  The filing of the petition does not itself stay
  5  enforcement of the agency decision, but if the agency decision
  6  has the effect of suspending or revoking a license,
  7  supersedeas shall be granted as a matter of right upon such
  8  conditions as are reasonable, unless the court, upon petition
  9  of the agency, determines that a supersedeas would constitute
10  a probable danger to the health, safety, or welfare of the
11  state. The agency also may grant a stay upon appropriate
12  terms, but, whether or not the action has the effect of
13  suspending or revoking a license, a petition to the agency for
14  a stay is not a prerequisite to a petition to the court for
15  supersedeas. In any event the court shall specify the
16  conditions, if any, upon which the stay or supersedeas is
17  granted. a notice or petition does not stay enforcement of the
18  agency decision. The agency may grant a stay upon appropriate
19  terms, but a petition to the agency for a stay is not a
20  prerequisite to a petition to the court for supersedeas.
21  Subject to the Florida Rules of Appellate Procedure, no stay
22  or supersedeas shall be in effect until the party seeking
23  relief files a petition for stay and the agency or court
24  enters an order granting such relief. The order shall specify
25  the conditions, if any, upon which the stay or supersedeas is
26  granted. Where the agency decision has the effect of
27  suspending or revoking a license, a stay shall be granted as a
28  matter of right upon such conditions as are reasonable, unless
29  the agency demonstrates that a stay would constitute a
30  probable danger to the public health, safety, or welfare.
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  1         Section 16.  Subsection (1) of section 120.74, Florida
  2  Statutes, 1996 Supplement, is amended to read:
  3         120.74  Agency review, revision, and report.--
  4         (1)  Each agency shall review and revise its rules as
  5  often as necessary to ensure that its rules are correct and
  6  comply with statutory requirements.  Additionally, each agency
  7  shall perform a formal review of its rules every 2 years.  In
  8  the annual review, each agency must:
  9         (a)  Identify and correct deficiencies in its rules;
10         (b)  Clarify and simplify its rules;
11         (c)  Delete obsolete or unnecessary rules;
12         (d)  Delete rules that are redundant of statutes;
13         (e)  Seek to improve efficiency, reduce paperwork, or
14  decrease costs to government and the private sector; and
15         (f)  Contact agencies that have concurrent or
16  overlapping jurisdiction to determine whether their rules can
17  be coordinated to promote efficiency, reduce paperwork, or
18  decrease costs to government and the private sector.
19         Section 17.  Subsections (1) and (2) of section 120.81,
20  Florida Statutes, 1996 Supplement, are amended to read:
21         120.81  Exceptions and special requirements; general
22  areas.--
23         (1)  EDUCATIONAL UNITS.--
24         (a)  The preparation or modification of curricula by an
25  educational unit is not a rule as defined by this chapter.
26         (b)  Notwithstanding s. 120.52(15), any tests, test
27  scoring criteria, or testing procedures relating to student
28  assessment which are developed or administered by the
29  Department of Education pursuant to s. 229.57, s. 232.245, s.
30  232.246, or s. 232.247, or any other statewide educational
31  tests required by law, are not rules.
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  1         (c)  Notwithstanding any other provision of this
  2  chapter, educational units shall not be required to include
  3  the full text of the rule or rule amendment in notices
  4  relating to rules and need not publish these or other notices
  5  in the Florida Administrative Weekly, but notice shall be made
  6  s. 120.54(3)(a), notice of intent by an educational unit to
  7  adopt, amend, or repeal a rule or notice by an educational
  8  unit of a petition for a declaratory statement need not be
  9  published in the Florida Administrative Weekly or transmitted
10  to the committee; however, the notice, for other than an
11  emergency rule, shall be made at least 21 days prior to the
12  intended action:
13         1.  By publication in a newspaper of general
14  circulation in the affected area;
15         2.  By mail to all persons who have made requests of
16  the educational unit for advance notice of its proceedings and
17  to organizations representing persons affected by the proposed
18  rule; and
19         3.  By posting in appropriate places so that those
20  particular classes of persons to whom the intended action is
21  directed may be duly notified.
22         (d)  Notwithstanding s. 120.54(3)(a)4., Educational
23  units, other than units of the State University System and the
24  Florida School for the Deaf and the Blind, shall not be
25  required to make filings with the committee of the documents
26  required to be filed by s. 120.54 or s. 120.55(1)(a)4. that
27  subparagraph.
28         (e)  Notwithstanding s. 120.57(1)(a), hearings which
29  involve student disciplinary suspensions or expulsions may be
30  conducted by educational units.
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  1         (f)  Sections 120.569 and 120.57 do not apply to any
  2  proceeding in which the substantial interests of a student are
  3  determined by the State University System or a community
  4  college district. The Board of Regents shall establish a
  5  committee, at least half of whom shall be appointed by the
  6  Council of Student Body Presidents, which shall establish
  7  rules and guidelines ensuring fairness and due process in
  8  judicial proceedings involving students in the State
  9  University System.
10         (g)  Notwithstanding ss. 120.569 and 120.57, in a
11  hearing involving a student disciplinary suspension or
12  expulsion conducted by an educational unit, the 14-day notice
13  of hearing requirement may be waived by the agency head or the
14  hearing officer without the consent of parties.
15         (h)  For purposes of s. 120.68, a district school board
16  whose decision is reviewed under the provisions of s. 231.36
17  and whose final action is modified by a superior
18  administrative decision shall be a party entitled to judicial
19  review of the final action.
20         (i)  Notwithstanding s. 120.525(2), the agenda for a
21  special meeting of a district school board under authority of
22  s. 230.16 shall be prepared upon the calling of the meeting,
23  but not less than 48 hours prior to the meeting.
24         (j)  Students are not persons subject to regulation for
25  the purposes of petitioning for a variance or waiver to rules
26  of educational units under s. 120.542.
27         (2)  LOCAL UNITS OF GOVERNMENT.--
28         (a)  Notwithstanding s. 120.54(3)(a)4., Local units of
29  government with jurisdiction in only one county or part
30  thereof shall not be required to make filings with the
31
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  1  committee of the documents required to be filed by s. 120.54
  2  that subparagraph.
  3         (b)  Notwithstanding any other provision of this
  4  chapter, units of government with jurisdiction in only one
  5  county or part thereof shall not publish required notices in
  6  the Florida Administrative Weekly, but shall publish these
  7  notices in the manner required by their enabling acts for
  8  notice of rulemaking or notice of meeting. Notices relating to
  9  rules are not required to include the full text of the rule or
10  rule amendment s. 120.54(3)(a), notice of intent by a unit of
11  government with jurisdiction in only one county to adopt,
12  amend, or repeal a rule need not be published in the Florida
13  Administrative Weekly or transmitted to the committee.
14         Section 18.  This act shall take effect upon becoming a
15  law.
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