House Bill 0107
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Florida House of Representatives - 1999 HB 107
By Representative Pruitt
1 A bill to be entitled
2 An act relating to the Administrative Procedure
3 Act; amending ss. 120.52 and 120.536, F.S.;
4 removing entities described in ch. 298, F.S.,
5 relating to water control districts, from the
6 definition of "agency"; providing that an
7 agency's confirmation of a statutory exemption
8 is not agency action and is not subject to
9 provisions relating to decisions which affect
10 substantial interests; providing additional
11 restrictions with respect to an agency's
12 rulemaking authority; amending s. 120.56, F.S.;
13 revising an agency's responsibilities in
14 response to a challenge to a proposed rule;
15 amending s. 120.57, F.S., relating to hearings
16 involving disputed issues of material fact;
17 revising an agency's authority with respect to
18 rejection or modification of conclusions of law
19 in its final order; providing an effective
20 date.
21
22 Be It Enacted by the Legislature of the State of Florida:
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24 Section 1. Paragraph (b) of subsection (1) and
25 subsections (2) and (8) of section 120.52, Florida Statutes,
26 1998 Supplement, are amended to read:
27 120.52 Definitions.--As used in this act:
28 (1) "Agency" means:
29 (b) Each state officer and state department,
30 departmental unit described in s. 20.04, commission, regional
31 planning agency, board, multicounty special district with a
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1 majority of its governing board comprised of nonelected
2 persons, and authority, including, but not limited to, the
3 Commission on Ethics and the Game and Fresh Water Fish
4 Commission when acting pursuant to statutory authority derived
5 from the Legislature, educational units, and those entities
6 described in chapters 163, 298, 373, 380, and 582 and s.
7 186.504, except any legal entity or agency created in whole or
8 in part pursuant to chapter 361, part II, an expressway
9 authority pursuant to chapter 348, or any legal or
10 administrative entity created by an interlocal agreement
11 pursuant to s. 163.01(7), unless any party to such agreement
12 is otherwise an agency as defined in this subsection.
13 (2) "Agency action" means the whole or part of a rule
14 or order, or the equivalent, or the denial of a petition to
15 adopt a rule or issue an order. The term also includes any
16 denial of a request made under s. 120.54(7). The term does not
17 include an agency's confirmation or affirmance of a statutory
18 exemption, and such an act is not subject to s. 120.569 or s.
19 120.57.
20 (8) "Invalid exercise of delegated legislative
21 authority" means action which goes beyond the powers,
22 functions, and duties delegated by the Legislature. A proposed
23 or existing rule is an invalid exercise of delegated
24 legislative authority if any one of the following applies:
25 (a) The agency has materially failed to follow the
26 applicable rulemaking procedures or requirements set forth in
27 this chapter;
28 (b) The agency has exceeded its grant of rulemaking
29 authority, citation to which is required by s. 120.54(3)(a)1.;
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1 (c) The rule enlarges, modifies, or contravenes the
2 specific provisions of law implemented, citation to which is
3 required by s. 120.54(3)(a)1.;
4 (d) The rule is vague, fails to establish adequate
5 standards for agency decisions, or vests unbridled discretion
6 in the agency;
7 (e) The rule is arbitrary or capricious;
8 (f) The rule is not supported by competent substantial
9 evidence; or
10 (g) The rule imposes regulatory costs on the regulated
11 person, county, or city which could be reduced by the adoption
12 of less costly alternatives that substantially accomplish the
13 statutory objectives.
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15 A grant of rulemaking authority is necessary but not
16 sufficient to allow an agency to adopt a rule; a specific law
17 to be implemented is also required. An agency may adopt only
18 rules that implement, interpret, or make more specific the
19 detailed particular powers and duties granted by the enabling
20 statute. No agency shall have authority to adopt a rule only
21 because it is reasonably related to the purpose of the
22 enabling legislation or is within the agency's class of powers
23 and duties and is not arbitrary and capricious, nor shall an
24 agency have the authority to implement statutory provisions
25 setting forth general legislative intent or policy. Statutory
26 language granting rulemaking authority or generally describing
27 the powers and functions of an agency shall be construed to
28 extend no further than the detailed particular powers and
29 duties conferred by the same statute.
30 Section 2. Subsection (1) of section 120.536, Florida
31 Statutes, is amended to read:
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1 120.536 Rulemaking authority; listing of rules
2 exceeding authority; repeal; challenge.--
3 (1) A grant of rulemaking authority is necessary but
4 not sufficient to allow an agency to adopt a rule; a specific
5 law to be implemented is also required. An agency may adopt
6 only rules that implement, interpret, or make more specific
7 the detailed particular powers and duties granted by the
8 enabling statute. No agency shall have authority to adopt a
9 rule only because it is reasonably related to the purpose of
10 the enabling legislation or is within the agency's class of
11 powers and duties and is not arbitrary and capricious, nor
12 shall an agency have the authority to implement statutory
13 provisions setting forth general legislative intent or policy.
14 Statutory language granting rulemaking authority or generally
15 describing the powers and functions of an agency shall be
16 construed to extend no further than the detailed particular
17 powers and duties conferred by the same statute.
18 Section 3. Paragraph (a) of subsection (2) of section
19 120.56, Florida Statutes, is amended to read:
20 120.56 Challenges to rules.--
21 (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--
22 (a) Any substantially affected person may seek an
23 administrative determination of the invalidity of any proposed
24 rule by filing a petition seeking such a determination with
25 the division within 21 days after the date of publication of
26 the notice required by s. 120.54(3)(a), within 10 days after
27 the final public hearing is held on the proposed rule as
28 provided by s. 120.54(3)(c), within 20 days after the
29 preparation of a statement of estimated regulatory costs
30 required pursuant to s. 120.541, if applicable, or within 20
31 days after the date of publication of the notice required by
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1 s. 120.54(3)(d). The petition shall state with particularity
2 the objections to the proposed rule and the reasons that the
3 proposed rule is an invalid exercise of delegated legislative
4 authority. The agency then has the burden of going forward
5 and the burden to prove by a preponderance of the evidence
6 that the proposed rule is not an invalid exercise of delegated
7 legislative authority as to the objections raised. Any person
8 who is substantially affected by a change in the proposed rule
9 may seek a determination of the validity of such change. Any
10 person not substantially affected by the proposed rule as
11 initially noticed, but who is substantially affected by the
12 rule as a result of a change, may challenge any provision of
13 the rule and is not limited to challenging the change to the
14 proposed rule.
15 Section 4. Paragraph (l) of subsection (1) of section
16 120.57, Florida Statutes, 1998 Supplement, is amended to read:
17 120.57 Additional procedures for particular cases.--
18 (1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS
19 INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--
20 (l) The agency may adopt the recommended order as the
21 final order of the agency. The agency in its final order may
22 reject or modify the clearly erroneous conclusions of law over
23 which it has substantive jurisdiction and interpretation of
24 administrative rules over which it has substantive
25 jurisdiction. Rejection or modification of conclusions of law
26 may not form the basis for rejection or modification of
27 findings of fact. The agency may not reject or modify the
28 findings of fact unless the agency first determines from a
29 review of the entire record, and states with particularity in
30 the order, that the findings of fact were not based upon
31 competent substantial evidence or that the proceedings on
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1 which the findings were based did not comply with essential
2 requirements of law. The agency may accept the recommended
3 penalty in a recommended order, but may not reduce or increase
4 it without a review of the complete record and without stating
5 with particularity its reasons therefor in the order, by
6 citing to the record in justifying the action.
7 Section 5. This act shall take effect upon becoming a
8 law.
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11 HOUSE SUMMARY
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Removes entities described in ch. 298, F.S., relating to
13 water control districts, from the definition of "agency"
under the Administrative Procedure Act. Provides that an
14 agency's confirmation of a statutory exemption is not
agency action under the act and is not subject to
15 provisions relating to decisions which affect substantial
interests. Provides additional restrictions with respect
16 to an agency's rulemaking authority. Revises an agency's
responsibilities in response to a challenge to a proposed
17 rule. Revises an agency's authority with respect to
rejection or modification of conclusions of law in its
18 final order following a hearing involving disputed issues
of material fact.
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