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



                                                  SENATE AMENDMENT

    Bill No. SB 1896

    Amendment No. ___

                            CHAMBER ACTION
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10  ______________________________________________________________

11  Senator King moved the following amendment to amendment

12  (920738):

13

14         Senate Amendment (with title amendment) 

15         On page 16, between lines 13 and 14,

16

17  insert:

18         Section 4.  Paragraph (d) of subsection (3) and

19  paragraph (d) of subsection (4) of section 57.111, Florida

20  Statutes, are amended to read:

21         57.111  Civil actions and administrative proceedings

22  initiated by state agencies; attorneys' fees and costs.--

23         (3)  As used in this section:

24         (d)  The term "small business party" means:

25         1.a.  A sole proprietor of an unincorporated business,

26  including a professional practice, whose principal office is

27  in this state, who is domiciled in this state, and whose

28  business or professional practice has, at the time the action

29  is initiated by a state agency, not more than 25 full-time

30  employees or a net worth of not more than $5 $5 million,

31  including both personal and business investments; or

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                                                  SENATE AMENDMENT

    Bill No. SB 1896

    Amendment No. ___





  1         b.  A partnership or corporation, including a

  2  professional practice, which has its principal office in this

  3  state and has at the time the action is initiated by a state

  4  agency not more than 25 full-time employees or a net worth of

  5  not more than $5 $2 million; or

  6         2.  Either small business party as defined in

  7  subparagraph 1., without regard to the number of its employees

  8  or its net worth, in any action under s. 72.011 or in any

  9  administrative proceeding under that section to contest the

10  legality of any assessment of tax imposed for the sale or use

11  of services as provided in chapter 212, or interest thereon,

12  or penalty therefor.

13         (4)

14         (d)  The court, or the administrative law judge in the

15  case of a proceeding under chapter 120, shall promptly conduct

16  an evidentiary hearing on the application for an award of

17  attorney's fees and shall issue a judgment, or a final order

18  in the case of an administrative law judge.  The final order

19  of an administrative law judge is reviewable in accordance

20  with the provisions of s. 120.68.  If the court affirms the

21  award of attorney's fees and costs in whole or in part, it

22  may, in its discretion, award additional attorney's fees and

23  costs for the appeal.

24         1.  No award of attorney's fees and costs shall be made

25  in any case in which the state agency was a nominal party.

26         2.  No award of attorney's fees and costs for an action

27  initiated by a state agency shall exceed $50,000 $15,000.

28         Section 5.  Paragraph (e) of subsection (2) of section

29  120.569, Florida Statutes, is amended to read:

30         120.569  Decisions which affect substantial

31  interests.--

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                                                  SENATE AMENDMENT

    Bill No. SB 1896

    Amendment No. ___





  1         (2)

  2         (e)1.  Every pleading, written motion, and other paper

  3  filed in a proceeding must be signed by at least one attorney

  4  or qualified representative of record in the attorney's or

  5  qualified representative's individual name, or, if the party

  6  is not represented by an attorney or qualified representative,

  7  the pleading, written motion, or other paper must be signed by

  8  the party. An unsigned paper shall be stricken unless omission

  9  of the signature is corrected promptly after being called to

10  the attention of the attorney, qualified representative, or

11  party.

12         2.  By presenting a pleading, written motion, or other

13  paper, whether by signing, filing, submitting, or later

14  advocating, an attorney, qualified representative, or

15  unrepresented party is certifying that, to the best of the

16  person's knowledge, information, and belief, formed after an

17  inquiry reasonable under the circumstances:

18         a.  The pleading, written motion, or other paper is not

19  being presented for any improper purpose, such as to harass or

20  to cause unnecessary delay or needless increase in the cost of

21  litigation;

22         b.  The claims, defenses, and other legal contentions

23  contained in the pleading, written motion, or other paper are

24  warranted by existing law or by a nonfrivolous argument for

25  the extension, modification, or reversal of existing law or

26  the establishment of new law;

27         c.  The allegations and other factual contentions have

28  evidentiary support or, if specifically identified, are likely

29  to have evidentiary support after a reasonable opportunity for

30  further investigation or discovery; and

31         d.  The denials of factual contentions are warranted on

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                                                  SENATE AMENDMENT

    Bill No. SB 1896

    Amendment No. ___





  1  the evidence or, if specifically identified, are reasonably

  2  based on a lack of information or belief.

  3         3.  If, after notice and a reasonable opportunity to

  4  respond, the presiding officer determines that subparagraph 2.

  5  has been violated, the presiding officer shall impose an

  6  appropriate sanction against the person who signed it, the

  7  represented party, or both, which must include an order to pay

  8  the other party or parties the amount of reasonable expenses

  9  incurred because of the filing of the pleading, motion, or

10  other paper, including reasonable attorney's fees. However:

11         a.  Monetary sanctions may not be awarded against a

12  represented party for a violation of sub-subparagraph 2.b.

13         b.  Monetary sanctions may not be awarded under this

14  paragraph based on a violation of discovery rules, which are

15  subject to sanctions under paragraph (f).

16         c.  This paragraph does not authorize the award of

17  sanctions against any person who comments on or objects to a

18  draft permit during an authorized period for public comment or

19  at a public hearing.

20         4.  Sanctions under this paragraph may be initiated at

21  any time after the initiation of a proceeding either by motion

22  or on the presiding officer's own initiative. A motion shall

23  describe the specific conduct alleged to violate subparagraph

24  2. The motion shall be served upon the attorney or qualified

25  representative of a party or an unrepresented party against

26  whom such sanctions are sought and shall be filed with the

27  presiding officer. However, such motion shall not be acted

28  upon by the presiding officer or called up for hearing by the

29  movant unless, within 14 days after service of the motion, or

30  such other period as the presiding officer may prescribe, the

31  challenged paper, claim, defense, contention, allegation, or

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                                                  SENATE AMENDMENT

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    Amendment No. ___





  1  denial is not withdrawn or appropriately corrected. A

  2  presiding officer's own initiative to impose sanctions may be

  3  undertaken only after entering an order describing the

  4  specific conduct that appears to violate subparagraph 2. and

  5  directing the attorney or qualified representative of a party

  6  or the unrepresented party to show cause why subparagraph 2.

  7  has not been violated. When imposing sanctions, the presiding

  8  officer shall describe the conduct determined to constitute a

  9  violation of subparagraph 2. and explain the basis for the

10  sanction imposed. All pleadings, motions, or other papers

11  filed in the proceeding must be signed by the party, the

12  party's attorney, or the party's qualified representative. The

13  signature constitutes a certificate that the person has read

14  the pleading, motion, or other paper and that, based upon

15  reasonable inquiry, it is not interposed for any improper

16  purposes, such as to harass or to cause unnecessary delay, or

17  for frivolous purpose or needless increase in the cost of

18  litigation. If a pleading, motion, or other paper is signed in

19  violation of these requirements, the presiding officer shall

20  impose upon the person who signed it, the represented party,

21  or both, an appropriate sanction, which may include an order

22  to pay the other party or parties the amount of reasonable

23  expenses incurred because of the filing of the pleading,

24  motion, or other paper, including a reasonable attorney's fee.

25         Section 6.  Paragraphs (c) and (e) of subsection (1) of

26  section 120.595, Florida Statutes, are amended to read:

27         120.595  Attorney's fees.--

28         (1)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

29  120.57(1).--

30         (c)  In proceedings pursuant to s. 120.57(1), and upon

31  motion, the administrative law judge shall determine whether

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                                                  SENATE AMENDMENT

    Bill No. SB 1896

    Amendment No. ___





  1  any party participated in the proceeding for an improper

  2  purpose as defined by this subsection and s. 120.569(2)(e). In

  3  making such determination, the administrative law judge shall

  4  consider whether the nonprevailing adverse party has

  5  participated in two or more other such proceedings involving

  6  the same prevailing party and the same project as an adverse

  7  party and in which such two or more proceedings the

  8  nonprevailing adverse party did not establish either the

  9  factual or legal merits of its position, and shall consider

10  whether the factual or legal position asserted in the instant

11  proceeding would have been cognizable in the previous

12  proceedings. In such event, it shall be rebuttably presumed

13  that the nonprevailing adverse party participated in the

14  pending proceeding for an improper purpose.

15         (e)  For the purpose of this subsection:

16         1.  "Improper purpose" means participation in a

17  proceeding pursuant to s. 120.57(1) primarily to harass or to

18  cause unnecessary delay or for frivolous purpose or to

19  needlessly increase the cost of litigation, licensing, or

20  securing the approval of an activity.

21         2.  "Costs" has the same meaning as the costs allowed

22  in civil actions in this state as provided in chapter 57.

23         3.  "Nonprevailing adverse party" means a party that

24  has failed to have substantially changed the outcome of the

25  proposed or final agency action which is the subject of a

26  proceeding. In the event that a proceeding results in any

27  substantial modification or condition intended to resolve the

28  matters raised in a party's petition, it shall be determined

29  that the party having raised the issue addressed is not a

30  nonprevailing adverse party.  The recommended order shall

31  state whether the change is substantial for purposes of this

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                                                  SENATE AMENDMENT

    Bill No. SB 1896

    Amendment No. ___





  1  subsection. In no event shall the term "nonprevailing party"

  2  or "prevailing party" be deemed to include any party that has

  3  intervened in a previously existing proceeding to support the

  4  position of an agency.

  5         Section 7.  Subsection (1) of section 373.114, Florida

  6  Statutes, is amended to read:

  7         373.114  Land and Water Adjudicatory Commission; review

  8  of district rules and orders; department review of district

  9  rules.--

10         (1)  Except as provided in subsection (2), the Governor

11  and Cabinet, sitting as the Land and Water Adjudicatory

12  Commission, have the exclusive authority to review any order

13  or rule of a water management district, other than a rule

14  relating to an internal procedure of the district or an order

15  resulting from an evidentiary hearing held pursuant to s.

16  120.569 or s. 120.57, to ensure consistency with the

17  provisions and purposes of this chapter. Subsequent to the

18  legislative ratification of the delineation methodology

19  pursuant to s. 373.421(1), this subsection also shall apply to

20  an order of the department, or a local government exercising

21  delegated authority, pursuant to ss. 373.403-373.443, except

22  an order pertaining to activities or operations subject to

23  conceptual plan approval pursuant to chapter 378 or an order

24  resulting from an evidentiary hearing held pursuant to s.

25  120.569 or s. 120.57.

26         (a)  Such review may be initiated by the department or

27  by a party to the proceeding below by filing a request for

28  review with the Land and Water Adjudicatory Commission and

29  serving a copy on the department and on any person named in

30  the rule or order within 20 days after adoption of the rule or

31  the rendering of the order. For the purposes of this section,

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                                                  SENATE AMENDMENT

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    Amendment No. ___





  1  the term "party" means any affected person who submitted oral

  2  or written testimony, sworn or unsworn, of a substantive

  3  nature which stated with particularity objections to or

  4  support for the rule or order that are cognizable within the

  5  scope of the provisions and purposes of this chapter, or any

  6  person who participated as a party in a proceeding challenging

  7  the validity of a rule instituted pursuant to chapter 120.  In

  8  order for the commission to accept a request for review

  9  initiated by a party below, with regard to a specific order,

10  four members of the commission must determine on the basis of

11  the record below that the activity authorized by the order

12  would substantially affect natural resources of statewide or

13  regional significance. Review of an order may also be accepted

14  if four members of the commission determine that the order

15  raises issues of policy, statutory interpretation, or rule

16  interpretation that have regional or statewide significance

17  from the standpoint of agency precedent. The party requesting

18  the commission to review an order must allege with

19  particularity, and the commission must find, that:

20         1.  The order is in conflict with statutory

21  requirements; or

22         2.  The order is in conflict with the requirements of a

23  duly adopted rule.

24         (b)  Review by the Land and Water Adjudicatory

25  Commission is appellate in nature and shall be based solely on

26  the record below.  If there was no evidentiary administrative

27  proceeding below, the facts contained in the proposed agency

28  action, including any technical staff report, shall be deemed

29  undisputed.  The matter shall be heard by the commission not

30  more than 60 days after receipt of the request for review,

31  unless waived by the parties.

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                                                  SENATE AMENDMENT

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    Amendment No. ___





  1         (c)  If the Land and Water Adjudicatory Commission

  2  determines that a rule of a water management district is not

  3  consistent with the provisions and purposes of this chapter,

  4  it may require the water management district to initiate

  5  rulemaking proceedings to amend or repeal the rule.  If the

  6  commission determines that an order is not consistent with the

  7  provisions and purposes of this chapter, the commission may

  8  rescind or modify the order or remand the proceeding for

  9  further action consistent with the order of the Land and Water

10  Adjudicatory Commission only if the commission determines that

11  the activity authorized by the order would substantially

12  affect natural resources of statewide or regional

13  significance.  In the case of an order which does not itself

14  substantially affect natural resources of statewide or

15  regional significance, but which raises issues of policy that

16  have regional or statewide significance from the standpoint of

17  agency precedent, the commission may direct the district to

18  initiate rulemaking to amend its rules to assure that future

19  actions are consistent with the provisions and purposes of

20  this chapter without modifying the order.

21         (d)  In a review under this section of a construction

22  permit issued pursuant to a conceptual permit under part IV,

23  which conceptual permit is issued after July 1, 1993, a party

24  to the review may not raise an issue which was or could have

25  been raised in a review of the conceptual permit under this

26  section.

27         (e)  A request for review under this section shall not

28  be a precondition to the seeking of judicial review pursuant

29  to s. 120.68 or the seeking of an administrative determination

30  of rule validity pursuant to s. 120.56.

31         (f)  The Florida Land and Water Adjudicatory Commission

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                                                  SENATE AMENDMENT

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  1  may adopt rules to set forth its procedures for reviewing an

  2  order or rule of a water management district consistent with

  3  the provisions of this section.

  4         (g)  For the purpose of this section, it shall be

  5  presumed that activity authorized by an order will not affect

  6  resources of statewide or regional significance if the

  7  proposed activity:

  8         1.  Occupies an area less than 10 acres in size, and

  9         2.  Does not create impervious surfaces greater than 2

10  acres in size, and

11         3.  Is not located within 550 feet of the shoreline of

12  a named body of water designated as Outstanding Florida

13  Waters, and

14         4.  Does not adversely affect threatened or endangered

15  species.

16

17  This paragraph shall not operate to hold that any activity

18  that exceeds these limits is presumed to affect resources of

19  statewide or regional significance.  The determination of

20  whether an activity will substantially affect resources of

21  statewide or regional significance shall be made on a

22  case-by-case basis, based upon facts contained in the record

23  below.

24         Section 8.  Subsection (5) of section 403.412, Florida

25  Statutes, is amended to read:

26         403.412  Environmental Protection Act.--

27         (5)  In any administrative, licensing, or other

28  proceedings authorized by law for the protection of the air,

29  water, or other natural resources of the state from pollution,

30  impairment, or destruction, the Department of Legal Affairs, a

31  political subdivision or municipality of the state, or a

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                                                  SENATE AMENDMENT

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    Amendment No. ___





  1  citizen of the state shall have standing to intervene as a

  2  party on the filing of a verified pleading asserting that the

  3  activity, conduct, or product to be licensed or permitted has

  4  or will have the effect of impairing, polluting, or otherwise

  5  injuring the air, water, or other natural resources of the

  6  state. However, a citizen of this state whose substantial

  7  interests have not been determined by agency action may not

  8  institute, initiate, petition, or request a proceeding

  9  pursuant to s. 120.569 or s. 120.57. This subsection does not

10  limit the ability of a nonprofit corporation or association,

11  organized in whole or in part to promote conservation, to

12  protect the environment or other biological values, or to

13  preserve historical sites to initiate, petition, or request a

14  proceeding pursuant to s. 120.569 or s. 120.57 upon asserting

15  in a verified petition that the activity, conduct, or product

16  to be licensed or permitted has or will have the effect of

17  impairing, polluting, or otherwise injuring the air, water, or

18  other natural resources of the state.  The verified petition

19  must also assert and be subject to subsequent proof, that the

20  corporation or association itself, or a substantial number of

21  its members, have substantial interests that will be affected

22  by the conduct, activity, or product to be licensed or

23  permitted.  Such substantial interests include the use and

24  enjoyment of the air, water, or other natural resources of the

25  state that will be affected as a result of the issuance of a

26  license or permit.

27         Section 9.  Paragraph (b) of subsection (1) of section

28  120.52, Florida Statutes, is amended to read:

29         120.52  Definitions.--As used in this act:

30         (1)  "Agency" means:

31         (b)  Each:

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                                                  SENATE AMENDMENT

    Bill No. SB 1896

    Amendment No. ___





  1         1.  State officer and state department, and each

  2  departmental unit described in s. 20.04.

  3         2.  State authority, including a regional water supply

  4  authority.

  5         3.  State board.

  6         4.  State commission, including the Commission on

  7  Ethics and the Fish and Wildlife Conservation Commission when

  8  acting pursuant to statutory authority derived from the

  9  Legislature.

10         5.  Regional planning agency.

11         6.  Multicounty special district with a majority of its

12  governing board comprised of nonelected persons.

13         7.  Educational units.

14         8.  Entity described in chapters 163, 373, 380, and 582

15  and s. 186.504.

16

17  This definition does not include any legal entity or agency

18  created in whole or in part pursuant to chapter 361, part II,

19  an expressway authority pursuant to chapter 348, any legal or

20  administrative entity created by an interlocal agreement

21  pursuant to s. 163.01(7), unless any party to such agreement

22  is otherwise an agency as defined in this subsection, or any

23  multicounty special district with a majority of its governing

24  board comprised of elected persons; however, this definition

25  shall include a regional water supply authority.

26

27  (Redesignate subsequent sections.)

28

29

30  ================ T I T L E   A M E N D M E N T ===============

31  And the title is amended as follows:

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                                                  SENATE AMENDMENT

    Bill No. SB 1896

    Amendment No. ___





  1         On page 17, line 30,

  2

  3  insert:

  4         amending s. 57.111, F.S.; increasing the

  5         maximum net worth for qualification as a small

  6         business party under the Florida Equal Access

  7         to Justice Act; increasing the limitation on

  8         the amount of attorney's fees and costs that

  9         may be awarded under the act; amending s.

10         120.569, F.S.; revising requirements for

11         pleadings, motions, and other papers filed

12         under ch. 120, F.S.; providing for sanctions,

13         including an award of attorney's fees; amending

14         s. 120.595, F.S.; redefining the term "improper

15         purpose" for purposes of provisions authorizing

16         challenges to agency action; amending s.

17         373.114, F.S.; providing that water management

18         district orders resulting from certain

19         evidentiary hearings are not subject to the

20         Land and Water Adjudicatory Commission's review

21         authority; amending s. 403.412, F.S.; providing

22         that a citizen of this state who is not a

23         substantially affected person may not initiate

24         certain administrative proceedings under the

25         Environmental Protection Act of 1971; amending

26         s. 120.52, F.S.; clarifying which governmental

27         entities are subject to the Administrative

28         Procedure Act;

29

30

31

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