Senate Bill 0206

CODING: Words stricken are deletions; words underlined are additions.



    Florida Senate - 1999                                   SB 206

    By Senator Laurent





    17-500-99                                               See HB

  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 that 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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    Florida Senate - 1999                                   SB 206
    17-500-99                                               See HB




  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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    Florida Senate - 1999                                   SB 206
    17-500-99                                               See HB




  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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    Florida Senate - 1999                                   SB 206
    17-500-99                                               See HB




  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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    Florida Senate - 1999                                   SB 206
    17-500-99                                               See HB




  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 the interpretation

24  of 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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    Florida Senate - 1999                                   SB 206
    17-500-99                                               See HB




  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                       LEGISLATIVE SUMMARY

12    Removes entities described in ch. 298, F.S., relating to
      water control districts, from the definition of "agency"
13    under the Administrative Procedure Act. Provides that an
      agency's confirmation of a statutory exemption is not
14    agency action under the act and is not subject to
      provisions relating to decisions that affect substantial
15    interests. Provides additional restrictions with respect
      to an agency's rulemaking authority. Revises an agency's
16    responsibilities in response to a challenge to a proposed
      rule. Revises an agency's authority with respect to
17    rejection or modification of conclusions of law in its
      final order following a hearing involving disputed issues
18    of material fact.

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