House Bill 0107c1
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Florida House of Representatives - 1999 CS/HB 107
By the Committee on Governmental Rules & Regulations and
Representatives Pruitt, Wallace, Posey, Byrd and Argenziano
1 A bill to be entitled
2 An act relating to the Administrative Procedure
3 Act; amending s. 120.52, F.S.; removing
4 entities described in ch. 298, F.S., relating
5 to water control districts, from the definition
6 of "agency"; providing additional restrictions
7 with respect to an agency's rulemaking
8 authority; amending s. 120.536, F.S.; providing
9 additional restrictions with respect to an
10 agency's rulemaking authority; requiring
11 agencies to provide the Administrative
12 Procedures Committee with a list of existing
13 rules which exceed such rulemaking authority
14 and providing for legislative consideration of
15 such rules; requiring agencies to initiate
16 proceedings to repeal such rules for which
17 authorizing legislation is not adopted;
18 requiring a report to the Legislature;
19 providing that the committee or a substantially
20 affected person may petition for repeal of such
21 rules after a specified date; restricting
22 challenge of such rules before that date;
23 amending s. 120.54, F.S.; specifying when rules
24 may take effect; restricting adoption of
25 retroactive rules; amending s. 120.56, F.S.;
26 revising an agency's responsibilities in
27 response to a challenge to a proposed rule and
28 specifying the petitioner's responsibility of
29 going forward; amending s. 120.57, F.S.,
30 relating to hearings involving disputed issues
31 of material fact; revising an agency's
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1 authority with respect to rejection or
2 modification of conclusions of law in its final
3 order; amending s. 120.68, F.S., relating to
4 judicial review; providing a directive with
5 respect to consideration by the court of an
6 agency's construction of a statute or rule;
7 providing an effective date.
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9 Be It Enacted by the Legislature of the State of Florida:
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11 Section 1. Subsections (1) and (8) of section 120.52,
12 Florida Statutes, 1998 Supplement, are amended to read:
13 120.52 Definitions.--As used in this act:
14 (1) "Agency" means:
15 (a) The Governor in the exercise of all executive
16 powers other than those derived from the constitution.
17 (b) Each:
18 1. State officer and state department, and each
19 departmental unit described in s. 20.04.,
20 2. Authority.
21 3. Board.
22 4. Commission, including the Commission on Ethics and
23 the Game and Fresh Water Fish Commission when acting pursuant
24 to statutory authority derived from the Legislature.
25 5. Regional planning agency., board,
26 6. Multicounty special district with a majority of its
27 governing board comprised of nonelected persons., and
28 authority, including, but not limited to, the Commission on
29 Ethics and the Game and Fresh Water Fish Commission when
30 acting pursuant to statutory authority derived from the
31 Legislature,
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1 7. Educational unit. units, and those entities
2 8. Entity described in chapters 163, 298, 373, 380,
3 and 582 and s. 186.504, except any legal entity or agency
4 created in whole or in part pursuant to chapter 361, part II,
5 an expressway authority pursuant to chapter 348, or any legal
6 or 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
14 This definition does not include any legal entity or agency
15 created in whole or in part pursuant to chapter 361, part II,
16 an expressway authority pursuant to chapter 348, or any legal
17 or administrative entity created by an interlocal agreement
18 pursuant to s. 163.01(7), unless any party to such agreement
19 is otherwise an agency as defined in this subsection.
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 or, interpret the, or make specific the
19 particular powers and duties granted by the enabling statute.
20 No agency shall have authority to adopt a rule only because it
21 is reasonably related to the purpose of the enabling
22 legislation and is not arbitrary and capricious or is within
23 the agency's class of powers and duties, nor shall an agency
24 have the authority to implement statutory provisions setting
25 forth general legislative intent or policy. Statutory language
26 granting rulemaking authority or generally describing the
27 powers and functions of an agency shall be construed to extend
28 no further than implementing or interpreting the specific the
29 particular powers and duties conferred by the same statute.
30 Section 2. Section 120.536, Florida Statutes, is
31 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 or, interpret the, or make specific
7 the particular powers and duties granted by the enabling
8 statute. No agency shall have authority to adopt a rule only
9 because it is reasonably related to the purpose of the
10 enabling legislation and is not arbitrary and capricious or is
11 within the agency's class of powers and duties, nor shall an
12 agency have the authority to implement statutory provisions
13 setting forth general legislative intent or policy. Statutory
14 language granting rulemaking authority or generally describing
15 the powers and functions of an agency shall be construed to
16 extend no further than implementing or interpreting the
17 specific the particular powers and duties conferred by the
18 same statute.
19 (2)(a) By October 1, 1997, each agency shall provide
20 to the Administrative Procedures Committee a listing of each
21 rule, or portion thereof, adopted by that agency before
22 October 1, 1996, which exceeds the rulemaking authority
23 permitted by this section. For those rules of which only a
24 portion exceeds the rulemaking authority permitted by this
25 section, the agency shall also identify the language of the
26 rule which exceeds this authority. The Administrative
27 Procedures Committee shall combine the lists and provide the
28 cumulative listing to the President of the Senate and the
29 Speaker of the House of Representatives. The Legislature
30 shall, at the 1998 Regular Session, consider whether specific
31 legislation authorizing the identified rules, or portions
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1 thereof, should be enacted. By January 1, 1999, each agency
2 shall initiate proceedings pursuant to s. 120.54 to repeal
3 each rule, or portion thereof, identified as exceeding the
4 rulemaking authority permitted by this section for which
5 authorizing legislation does not exist. By February 1, 1999,
6 the Administrative Procedures Committee shall submit to the
7 President of the Senate and the Speaker of the House of
8 Representatives a report identifying those rules that an
9 agency had previously identified as exceeding the rulemaking
10 authority permitted by this section for which proceedings to
11 repeal the rule have not been initiated. As of July 1, 1999,
12 the Administrative Procedures Committee or any substantially
13 affected person may petition an agency to repeal any rule, or
14 portion thereof, because it exceeds the rulemaking authority
15 permitted by this section. Not later than 30 days after the
16 date of filing the petition if the agency is headed by an
17 individual, or not later than 45 days if the agency is headed
18 by a collegial body, the agency shall initiate rulemaking
19 proceedings to repeal the rule, or portion thereof, or deny
20 the petition, giving a written statement of its reasons for
21 the denial.
22 (b) By October 1, 1999, each agency shall provide to
23 the Administrative Procedures Committee a listing of each
24 rule, or portion thereof, adopted by that agency on or after
25 October 1, 1996, and before October 1, 1999, which exceeds the
26 rulemaking authority permitted by this section. For those
27 rules of which only a portion exceeds the rulemaking authority
28 permitted by this section, the agency shall also identify the
29 language of the rule which exceeds this authority. The
30 Administrative Procedures Committee shall combine the lists
31 and provide the cumulative listing to the President of the
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1 Senate and the Speaker of the House of Representatives. The
2 Legislature shall, at the 2000 Regular Session, consider
3 whether specific legislation authorizing the identified rules,
4 or portions thereof, should be enacted. By January 1, 2001,
5 each agency shall initiate proceedings pursuant to s. 120.54
6 to repeal each rule, or portion thereof, identified as
7 exceeding the rulemaking authority permitted by this section
8 for which authorizing legislation does not exist. By February
9 1, 2001, the Administrative Procedures Committee shall submit
10 to the President of the Senate and the Speaker of the House of
11 Representatives a report identifying those rules that an
12 agency had previously identified as exceeding the rulemaking
13 authority permitted by this section for which proceedings to
14 repeal the rule have not been initiated. As of July 1, 2001,
15 the Administrative Procedures Committee or any substantially
16 affected person may petition an agency to repeal any rule, or
17 portion thereof, because it exceeds the rulemaking authority
18 permitted by this section. Not later than 30 days after the
19 date of filing the petition if the agency is headed by an
20 individual, or not later than 45 days if the agency is headed
21 by a collegial body, the agency shall initiate rulemaking
22 proceedings to repeal the rule, or portion thereof, or deny
23 the petition, giving a written statement of its reasons for
24 the denial.
25 (3) All proposed rules or amendments to existing rules
26 filed with the Department of State on or after October 1,
27 1996, shall be based on rulemaking authority no broader than
28 that permitted by this section. A rule adopted before October
29 1, 1996, and not included on a list submitted by an agency in
30 accordance with subsection (2) may not be challenged before
31 November 1, 1997, on the grounds that it exceeds the
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1 rulemaking authority or law implemented as described by this
2 section. A rule adopted before October 1, 1996, and included
3 on a list submitted by an agency in accordance with subsection
4 (2) may not be challenged before July 1, 1999, on the grounds
5 that it exceeds the rulemaking authority or law implemented as
6 described by this section. A rule adopted on or after October
7 1, 1996, and before October 1, 1999, and included on a list
8 submitted by an agency in accordance with subsection (2) may
9 not be challenged before July 1, 2001, on the grounds that it
10 exceeds the rulemaking authority or law implemented as
11 described by this section.
12 (4) Nothing in this section shall be construed to
13 change the legal status of a rule that has otherwise been
14 judicially or administratively determined to be invalid.
15 Section 3. Paragraph (f) of subsection (1) of section
16 120.54, Florida Statutes, 1998 Supplement, is amended to read:
17 120.54 Rulemaking.--
18 (1) GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER
19 THAN EMERGENCY RULES.--
20 (f) An agency may adopt rules authorized by law and
21 necessary to the proper implementation of a statute prior to
22 the effective date of the statute, but the rules may not be
23 effective enforced until the statute upon which they are based
24 is effective. An agency may not adopt retroactive rules,
25 including retroactive rules intended to clarify existing law,
26 unless that power is expressly authorized by statute.
27 Section 4. Paragraph (a) of subsection (2) of section
28 120.56, Florida Statutes, is amended to read:
29 120.56 Challenges to rules.--
30 (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--
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1 (a) Any substantially affected person may seek an
2 administrative determination of the invalidity of any proposed
3 rule by filing a petition seeking such a determination with
4 the division within 21 days after the date of publication of
5 the notice required by s. 120.54(3)(a), within 10 days after
6 the final public hearing is held on the proposed rule as
7 provided by s. 120.54(3)(c), within 20 days after the
8 preparation of a statement of estimated regulatory costs
9 required pursuant to s. 120.541, if applicable, or within 20
10 days after the date of publication of the notice required by
11 s. 120.54(3)(d). The petition shall state with particularity
12 the objections to the proposed rule and the reasons that the
13 proposed rule is an invalid exercise of delegated legislative
14 authority. The petitioner has the burden of going forward. The
15 agency then has the burden to prove by a preponderance of the
16 evidence that the proposed rule is not an invalid exercise of
17 delegated legislative authority as to the objections raised.
18 Any person who is substantially affected by a change in the
19 proposed rule may seek a determination of the validity of such
20 change. Any person not substantially affected by the proposed
21 rule as initially noticed, but who is substantially affected
22 by the rule as a result of a change, may challenge any
23 provision of the rule and is not limited to challenging the
24 change to the proposed rule.
25 Section 5. Paragraph (l) of subsection (1) of section
26 120.57, Florida Statutes, 1998 Supplement, is amended to read:
27 120.57 Additional procedures for particular cases.--
28 (1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS
29 INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--
30 (l) The agency may adopt the recommended order as the
31 final order of the agency. The agency in its final order may
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1 reject or modify the clearly erroneous conclusions of law over
2 which it has substantive jurisdiction and interpretation of
3 administrative rules over which it has substantive
4 jurisdiction. Rejection or modification of conclusions of law
5 may not form the basis for rejection or modification of
6 findings of fact. The agency may not reject or modify the
7 findings of fact unless the agency first determines from a
8 review of the entire record, and states with particularity in
9 the order, that the findings of fact were not based upon
10 competent substantial evidence or that the proceedings on
11 which the findings were based did not comply with essential
12 requirements of law. The agency may accept the recommended
13 penalty in a recommended order, but may not reduce or increase
14 it without a review of the complete record and without stating
15 with particularity its reasons therefor in the order, by
16 citing to the record in justifying the action.
17 Section 6. Paragraph (d) of subsection (7) of section
18 120.68, Florida Statutes, is amended to read:
19 120.68 Judicial review.--
20 (7) The court shall remand a case to the agency for
21 further proceedings consistent with the court's decision or
22 set aside agency action, as appropriate, when it finds that:
23 (d) The agency has erroneously interpreted a provision
24 of law and a correct interpretation compels a particular
25 action. The court shall not defer to an agency's construction
26 of a statute or rule or otherwise afford any special weight to
27 the agency's interpretation of a statute or rule; or
28 Section 7. This act shall take effect upon becoming a
29 law.
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