CODING: Words stricken are deletions; words underlined are additions.
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
CHAMBER ACTION
Senate House
.
.
1 .
.
2 .
.
3 .
.
4
5 ORIGINAL STAMP BELOW
6
7
8
9
10
11 The Committee on Governmental Rules & Regulations offered the
12 following:
13
14 Amendment (with title amendment)
15 Remove from the bill: Everything after the enacting clause
16
17 and insert in lieu thereof:
18 Section 1. 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 $2 million,
31 including both personal and business investments; or
1
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
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 $75,000 $15,000.
28 Section 2. Section 120.573, Florida Statutes, is
29 amended to read:
30 120.573 Mediation of disputes.--
31 (1) Each announcement of an agency action that affects
2
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 substantial interests shall advise whether mediation of the
2 administrative dispute for the type of agency action announced
3 is available and that choosing mediation does not affect the
4 right to an administrative hearing. If the agency and all
5 parties to the administrative action agree to mediation, in
6 writing, within 10 days after the time period stated in the
7 announcement for election of an administrative remedy under
8 ss. 120.569 and 120.57, the time limitations imposed by ss.
9 120.569 and 120.57 shall be tolled to allow the agency and
10 parties to mediate the administrative dispute. The mediation
11 shall be concluded within 60 days of such agreement unless
12 otherwise agreed by the parties. The mediation agreement
13 shall include provisions for mediator selection, the
14 allocation of costs and fees associated with mediation, and
15 the mediating parties' understanding regarding the
16 confidentiality of discussions and documents introduced during
17 mediation. If mediation results in settlement of the
18 administrative dispute, the agency shall enter a final order
19 incorporating the agreement of the parties. If mediation
20 terminates without settlement of the dispute, the agency shall
21 notify the parties in writing that the administrative hearing
22 processes under ss. 120.569 and 120.57 are resumed.
23 (2) Each announcement of an agency action under Parts
24 II and IV of Chapter 373 and Part VIII of Chapter 403 that
25 affects substantial interests shall advise whether mediation
26 of the administrative dispute for the type of agency action
27 announced is available and that choosing mediation does not
28 affect the right to an administrative hearing. If the agency
29 and the party subject to the agency action agree to mediation,
30 in writing, within 10 days after the time period stated in the
31 announcement for election of an administrative remedy under
3
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 ss. 120.569 and 120.57, the time limitations imposed by ss.
2 120.569 and 120.57 shall be tolled to allow the agency and all
3 original parties to mediate the administrative dispute. The
4 mediation shall be concluded within 60 days of such agreement
5 unless otherwise agreed by the agency and the party subject to
6 the agency action. The mediation agreement shall include
7 provisions for mediator selection, the allocation of costs and
8 fees associated with mediation, and the mediating parties'
9 understanding regarding the confidentiality of discussions and
10 documents introduced during mediation, and may address the
11 allocation of attorney's fees and costs. If mediation results
12 in settlement of the administrative dispute, the agency shall
13 enter a final order incorporating the agreement of the
14 parties. If mediation terminates without settlement of the
15 dispute, the agency shall notify the parties in writing that
16 the administrative hearing processes under ss. 120.569 and
17 120.57 are resumed.
18 (3) If the parties identified in paragraph (2) do not
19 settle the case pursuant to mediation, the last offer of each
20 of the non-agency parties made at mediation shall be recorded
21 by the mediator in a written report that describes the offer,
22 states the amount or content of the offer, the date the offer
23 was made in writing, and the date the offer was rejected. If
24 the matter subsequently proceeds to hearing under ss. 120.569
25 and 120.57, the party that prevails in the final order with a
26 result which is the same or more favorable than the last offer
27 made by that party at mediation, then the prevailing party is
28 entitled to recover attorney's fees and costs from the
29 opposing non-agency party.
30 Section 3. Section 120.574, Florida Statutes, is
31 amended to read:
4
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 120.574 Expedited Summary hearing.--
2 (1)(a) Within 5 business days following the division's
3 receipt of a petition or request for hearing, the division
4 shall issue and serve on all original parties an initial order
5 that assigns the case to a specific administrative law judge
6 and provides general information regarding practice and
7 procedure before the division. The initial order shall also
8 contain a statement advising the original parties addressees
9 that an expedited a summary hearing is available, provided the
10 affected agency agrees, upon the agreement of all parties
11 under subsection (2) and briefly describing the accelerated
12 expedited time sequences, limited discovery, and final order
13 provisions of the expedited summary procedure.
14 (b) Within 15 days after service of the initial order,
15 any party may file with the division a motion for expedited
16 summary hearing in accordance with subsection (2). If a
17 non-agency party files such a motion, and the affected agency
18 does not file a written objection within 7 days after the
19 service of that motion, or if the affected agency files such a
20 motion, and the original parties do not file a written
21 objection within 7 days after the service of the motion, then
22 the motion shall be granted and an order shall be entered
23 setting the hearing date, which shall commence within 30 days
24 from the date the response period to the motion expires. If
25 the affected agency files such a motion, and an original party
26 files a response within 7 days after service of that motion
27 objecting to the expedited hearing, the administrative law
28 judge shall, within 5 days from the filing of that response,
29 enter an order granting the motion for expedited hearing,
30 unless he or she determines that any of the original parties
31 will be unduly prejudiced thereby, which hearing shall be
5
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 commended within 30 days from the date the order granting the
2 expedited hearing is entered. If all original parties agree,
3 in writing, to the summary proceeding, the proceeding shall be
4 conducted within 30 days of the agreement, in accordance with
5 the provisions of subsection (2).
6 (c) Intervenors in the proceeding shall be governed by
7 the decision of the administrative law judge original parties
8 regarding whether the case will proceed in accordance with the
9 expedited summary hearing process and shall not have standing
10 to challenge that decision.
11 (d) If a motion for expedited summary hearing is not
12 filed within 15 days after service of the division's initial
13 order, the matter shall proceed in accordance with ss. 120.569
14 and 120.57.
15 (2) In any case to which this subsection is
16 applicable, the following procedures apply:
17 (a) Motions shall be limited to the following:
18 1. A motion in opposition to the petition.
19 2. A motion requesting discovery beyond the informal
20 exchange of documents and witness lists described in paragraph
21 (b). Upon a showing of necessity, additional discovery may be
22 permitted in the discretion of the administrative law judge,
23 but only if it can be completed not later than 5 days prior to
24 the final hearing.
25 3. A motion for continuance of the final hearing date.
26 4. A motion requesting a prehearing conference, or the
27 administrative law judge may require a prehearing conference,
28 for the purpose of identifying: the legal and factual issues
29 to be considered at the final hearing; the names and addresses
30 of witnesses who may be called to testify at the final
31 hearing; documentary evidence that will be offered at the
6
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 final hearing; the range of penalties that may be imposed upon
2 final hearing; and any other matter that the administrative
3 law judge determines would expedite resolution of the
4 proceeding. The prehearing conference may be held by
5 telephone conference call.
6 5. During or after any preliminary hearing or
7 conference, any party or the administrative law judge may
8 suggest that the case is no longer appropriate for expedited
9 summary disposition. Following any argument requested by the
10 parties, the administrative law judge may enter an order
11 referring the case back to the formal adjudicatory process
12 described in s. 120.57(1), in which event the parties shall
13 proceed accordingly.
14 (b) Not later than 5 days prior to the final hearing,
15 the parties shall furnish to each other copies of documentary
16 evidence and lists of witnesses who may testify at the final
17 hearing.
18 (c) All parties shall have an opportunity to respond,
19 to present evidence and argument on all issues involved, to
20 conduct cross-examination and submit rebuttal evidence, and to
21 be represented by counsel or other qualified representative.
22 (d) The record in a case governed by this subsection
23 shall consist only of:
24 1. All notices, pleadings, motions, and intermediate
25 rulings.
26 2. Evidence received.
27 3. A statement of matters officially recognized.
28 4. Proffers of proof and objections and rulings
29 thereon.
30 5. Matters placed on the record after an ex parte
31 communication.
7
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 6. The written decision of the administrative law
2 judge presiding at the final hearing.
3 7. The official transcript of the final hearing.
4 (e) The agency shall accurately and completely
5 preserve all testimony in the proceeding and, upon request by
6 any party, shall make a full or partial transcript available
7 at no more than actual cost.
8 (f) The decision of the administrative law judge shall
9 be rendered within 30 days after the conclusion of the final
10 hearing or the filing of the transcript thereof, whichever is
11 later. The administrative law judge's recommended order
12 decision, which shall be final agency action subject to
13 judicial review under s. 120.68, shall include the following:
14 1. Findings of fact based exclusively on the evidence
15 of record and matters officially recognized.
16 2. Conclusions of law.
17 3. Imposition of a fine or penalty, if applicable.
18 4. Any other information required by law or rule to be
19 contained in a final order.
20 (g) The parties may file exceptions to the
21 administrative law judge's recommended order within 10 days
22 after its issuance and responses may be filed within 5 days of
23 the exceptions. The agency shall issue the final order within
24 30 days after the issuance of the administrative law judge's
25 recommended order. For a period of 2 years following October
26 1, 1996, the division shall maintain a register of the total
27 number of formal proceedings filed with the division under s.
28 120.57(1).
29 Section 4. Subsection (8) of section 373.1501, Florida
30 Statutes, is amended to read:
31 373.1501 South Florida Water Management District as
8
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 local sponsor.--
2 (8) Final agency action with regard to any project
3 component subject to s. 373.026(8)(b) shall be taken by the
4 department. Actions taken by the district pursuant to
5 subsection (5) shall not be considered final agency action.
6 Any petition for formal proceedings filed pursuant to ss.
7 120.569 and 120.57 shall require a hearing under the expedited
8 summary hearing provisions of s. 120.574, which shall be
9 mandatory. The final hearing under this section shall be held
10 within 30 days after receipt of the petition by the Division
11 of Administrative Hearings.
12 Section 5. Paragraph (g) of subsection (2) of section
13 403.088, Florida Statutes, is amended to read:
14 403.088 Water pollution operation permits;
15 conditions.--
16 (2)
17 (g) The Legislature finds that the restoration of the
18 Everglades Protection Area, including the construction,
19 operation, and maintenance of stormwater treatment areas
20 (STAs) is in the public interest. Accordingly, whenever a
21 facility to be constructed, operated, or maintained in
22 accordance with s. 373.4592 is subjected to permitting
23 requirements pursuant to chapter 373 or this chapter, and the
24 issuance of the initial permit for a new source, a new
25 discharger, or a recommencing discharger is subjected to a
26 request for hearing pursuant to s. 120.569, the administrative
27 law judge may, upon motion by the permittee, issue a
28 recommended order to the secretary who, within 5 days, shall
29 issue an order authorizing the interim construction,
30 operation, and maintenance of the facility if it complies with
31 all uncontested conditions of the proposed permit and all
9
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 other conditions recommended by the administrative law judge
2 during the period until the final agency action on the permit.
3 1. An order authorizing such interim construction,
4 operation, and maintenance shall be granted if requested by
5 motion and no party opposes it.
6 2. If a party to the administrative hearing pursuant
7 to ss. 120.569 and 120.57 opposes the motion, the
8 administrative law judge shall issue a recommended order
9 granting the motion if the administrative law judge finds
10 that:
11 a. The facility is likely to receive the permit; and
12 b. The environment will not be irreparably harmed by
13 the construction, operation, or maintenance of the facility
14 pending final agency action on the permit.
15 3. Prior to granting a contested motion for interim
16 construction, operation, or maintenance of a facility
17 authorized by s. 373.4592, the administrative law judge shall
18 conduct a hearing using the expedited summary hearing process
19 defined in s. 120.574, which shall be mandatory for motions
20 made pursuant to this paragraph. Notwithstanding the
21 provisions of s. 120.574(1), expedited summary hearing
22 proceedings for these facilities shall begin within 30 days of
23 the motion made by the permittee. Within 15 days of the
24 conclusion of the expedited summary proceeding, the
25 administrative law judge shall issue a recommended order
26 either denying or approving interim construction, operation,
27 or maintenance of the facility, which shall be submitted to
28 the secretary who shall within 5 days thereafter, enter an
29 order granting or denying interim construction operation or
30 maintenance of the facility. The order shall remain in effect
31 until final agency action is taken on the permit.
10
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 Section 6. Subsections (8), (13), and (15) of section
2 403.973, Florida Statutes, are amended to read:
3 403.973 Expedited permitting; comprehensive plan
4 amendments.--
5 (8) At the option of the participating local
6 government, appeals of its final approval for a project may be
7 pursuant to the expedited summary hearing provisions of s.
8 120.574, pursuant to subsection (15), or pursuant to other
9 appellate processes available to the local government. The
10 local government's decision to enter into an expedited a
11 summary hearing must be made as provided in s. 120.574 or in
12 the memorandum of agreement.
13 (13) The applicant, the regional permit action team,
14 and participating local governments may agree to incorporate
15 into a single document the permits, licenses, and approvals
16 that are obtained through the expedited permit process. This
17 consolidated permit is subject to the expedited summary
18 hearing provisions set forth in subsection (15).
19 (15) The expedited hearing process as provided for in
20 s. 120.574 shall be used with regard to challenges to state
21 agency action in the expedited permitting process for projects
22 processed under this section. Notwithstanding s. 120.574, use
23 of the expedited hearing process does not require consent of
24 the affected agency or a determination by the administrative
25 law judge as to its propriety, provided however, the hearing
26 schedule may be extended by written agreement of all parties.
27 are subject to the summary hearing provisions of s. 120.574,
28 except that the administrative law judge's decision, as
29 provided in s. 120.574(2)(f), shall be in the form of a
30 recommended order and shall not constitute the final action of
31 the state agency. In those proceedings where the action of
11
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 only one agency of the state is challenged, the agency of the
2 state shall issue the final order within 10 working days of
3 receipt of the administrative law judge's recommended order.
4 In those proceedings where the actions of more than one agency
5 of the state are challenged, the Governor shall issue the
6 final order within 10 working days of receipt of the
7 administrative law judge's recommended order. The
8 participating agencies of the state may opt at the preliminary
9 hearing conference to allow the administrative law judge's
10 decision to constitute the final agency action. If a
11 participating local government agrees to participate in the
12 expedited summary hearing provisions of s. 120.574 for
13 purposes of review of local government comprehensive plan
14 amendments, s. 163.3184(9) and (10) apply.
15 Section 7. Subsection (14) of section 408.7056,
16 Florida Statutes, is amended to read:
17 408.7056 Statewide Provider and Subscriber Assistance
18 Program.--
19 (14) A proposed order issued by the agency or
20 department which only requires the managed care entity to take
21 a specific action under subsection (7) is subject to an
22 expedited a summary hearing in accordance with s. 120.574,
23 unless all of the parties agree otherwise. If the managed care
24 entity does not prevail at the hearing, the managed care
25 entity must pay reasonable costs and attorney's fees of the
26 agency or the department incurred in that proceeding.
27 Section 8. Paragraph (a) of subsection (4) of section
28 120.595, Florida Statutes, is amended to read:
29 120.595 Attorney's fees.--
30 (4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
31 120.56(4).--
12
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 (a) Upon entry of a final order that all or part of an
2 agency statement violates s. 120.54(1)(a), the administrative
3 law judge shall award reasonable costs and reasonable
4 attorney's fees to the petitioner, unless the agency
5 demonstrates that the statement is required by the Federal
6 Government to implement or retain a delegated or approved
7 program or to meet a condition to receipt of federal funds.
8 Notwithstanding any other provision of law to the contrary, if
9 the agency statement proceeding is more than 15 days from the
10 petition being filed and a final order has not been entered
11 because the agency has proceeded to rulemaking or a final
12 order has been entered in favor of the agency solely because
13 the agency has proceeded to rulemaking and has effectively
14 relied upon s. 120.56(4)(e), the administrative law judge
15 shall nevertheless enter an order awarding the petitioner
16 reasonable attorney's fees and costs. Attorney fees and costs
17 shall not be awarded if the agency prevails that the agency
18 statement does not violate s. 120.54(1)(a).
19 Section 9. Subsection (1) of section 373.114, Florida
20 Statutes, is amended to read:
21 373.114 Land and Water Adjudicatory Commission; review
22 of district rules and orders; department review of district
23 rules.--
24 (1) Except as provided in subsection (2), the Governor
25 and Cabinet, sitting as the Land and Water Adjudicatory
26 Commission, have the exclusive authority to review any order
27 or rule of a water management district, other than a rule
28 relating to an internal procedure of the district or an order
29 resulting from a s. 120.569 or s. 120.57 evidentiary hearing,
30 to ensure consistency with the provisions and purposes of this
31 chapter. Subsequent to the legislative ratification of the
13
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 delineation methodology pursuant to s. 373.421(1), this
2 subsection also shall apply to an order of the department, or
3 a local government exercising delegated authority, pursuant to
4 ss. 373.403-373.443, except an order pertaining to activities
5 or operations subject to conceptual plan approval pursuant to
6 chapter 378.
7 (a) Such review may be initiated by the department or
8 by a party to the proceeding below by filing a request for
9 review with the Land and Water Adjudicatory Commission and
10 serving a copy on the department and on any person named in
11 the rule or order within 20 days after adoption of the rule or
12 the rendering of the order. For the purposes of this section,
13 the term "party" means any affected person who submitted oral
14 or written testimony, sworn or unsworn, of a substantive
15 nature which stated with particularity objections to or
16 support for the rule or order that are cognizable within the
17 scope of the provisions and purposes of this chapter, or any
18 person who participated as a party in a proceeding instituted
19 pursuant to chapter 120. In order for the commission to
20 accept a request for review initiated by a party below, with
21 regard to a specific order, four members of the commission
22 must determine on the basis of the record below that the
23 activity authorized by the order would substantially affect
24 natural resources of statewide or regional significance.
25 Review of an order may also be accepted if four members of the
26 commission determine that the order raises issues of policy,
27 statutory interpretation, or rule interpretation that have
28 regional or statewide significance from the standpoint of
29 agency precedent. The party requesting the commission to
30 review an order must allege with particularity, and the
31 commission must find, that:
14
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 1. The order is in conflict with statutory
2 requirements; or
3 2. The order is in conflict with the requirements of a
4 duly adopted rule.
5 (b) Review by the Land and Water Adjudicatory
6 Commission is appellate in nature and shall be based solely on
7 the record below. If there was no evidentiary administrative
8 proceeding below, the facts contained in the proposed agency
9 action, including any technical staff report, shall be deemed
10 undisputed. The matter shall be heard by the commission not
11 more than 60 days after receipt of the request for review,
12 unless waived by the parties.
13 (c) If the Land and Water Adjudicatory Commission
14 determines that a rule of a water management district is not
15 consistent with the provisions and purposes of this chapter,
16 it may require the water management district to initiate
17 rulemaking proceedings to amend or repeal the rule. If the
18 commission determines that an order is not consistent with the
19 provisions and purposes of this chapter, the commission may
20 rescind or modify the order or remand the proceeding for
21 further action consistent with the order of the Land and Water
22 Adjudicatory Commission only if the commission determines that
23 the activity authorized by the order would substantially
24 affect natural resources of statewide or regional
25 significance. In the case of an order which does not itself
26 substantially affect natural resources of statewide or
27 regional significance, but which raises issues of policy that
28 have regional or statewide significance from the standpoint of
29 agency precedent, the commission may direct the district to
30 initiate rulemaking to amend its rules to assure that future
31 actions are consistent with the provisions and purposes of
15
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 this chapter without modifying the order.
2 (d) In a review under this section of a construction
3 permit issued pursuant to a conceptual permit under part IV,
4 which conceptual permit is issued after July 1, 1993, a party
5 to the review may not raise an issue which was or could have
6 been raised in a review of the conceptual permit under this
7 section.
8 (e) A request for review under this section shall not
9 be a precondition to the seeking of judicial review pursuant
10 to s. 120.68 or the seeking of an administrative determination
11 of rule validity pursuant to s. 120.56.
12 (f) The Florida Land and Water Adjudicatory Commission
13 may adopt rules to set forth its procedures for reviewing an
14 order or rule of a water management district consistent with
15 the provisions of this section.
16 (g) For the purpose of this section, it shall be
17 presumed that activity authorized by an order will not affect
18 resources of statewide or regional significance if the
19 proposed activity:
20 1. Occupies an area less than 10 acres in size, and
21 2. Does not create impervious surfaces greater than 2
22 acres in size, and
23 3. Is not located within 550 feet of the shoreline of
24 a named body of water designated as Outstanding Florida
25 Waters, and
26 4. Does not adversely affect threatened or endangered
27 species.
28
29 This paragraph shall not operate to hold that any activity
30 that exceeds these limits is presumed to affect resources of
31 statewide or regional significance. The determination of
16
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 whether an activity will substantially affect resources of
2 statewide or regional significance shall be made on a
3 case-by-case basis, based upon facts contained in the record
4 below.
5 Section 10. Section 373.4141, Florida Statutes, is
6 amended to read:
7 373.4141 Permits; processing.--
8 (1) Within 30 days after receipt of an application for
9 a permit under this part, the department or the water
10 management district shall review the application and shall
11 request submittal of all additional information the department
12 or the water management district is permitted by law to
13 require. If the applicant believes any request for additional
14 information is not authorized by law or rule, the applicant
15 may request a hearing pursuant to s. 120.57. Within 30 days
16 after receipt of such additional information, the department
17 or water management district shall review it and may request
18 only that information needed to clarify such additional
19 information or to answer new questions raised by or directly
20 related to such additional information. If the applicant
21 believes the request of the department or water management
22 district for such additional information is not authorized by
23 law or rule, the department or water management district, at
24 the applicant's request, shall proceed to process the permit
25 application.
26 (2) A permit shall be approved or denied within 90
27 days after receipt of the original application, the last item
28 of timely requested additional material, or the applicant's
29 written request to begin processing the permit application.
30 (3) When the permit application is deemed complete
31 pursuant to this subsection, or when the applicant declines to
17
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 provide additional information and demands that the agency
2 proceed to process the permit application, the applicant may
3 elect to publish notice of the application and request that
4 the department or water management district mail a notice to
5 all persons having submitted a request for such notices that a
6 permit is being processed, and may be the subject of final
7 agency action, and all persons owning property with 500 feet
8 of the boundary of the proposed project. The department or
9 district shall maintain a permanent list of persons requesting
10 such notices, and shall regularly update this list. Once each
11 year, in a newspaper of general circulation in each county,
12 the department and respective district shall publish a notice
13 indicating that persons who wish to be notified of such permit
14 applications may submit a written request for said notices to
15 the department or district. Each mailed notice shall include:
16 (a) A description of the project, permit
17 identification number, identity of the applicant, and the
18 water body or wetland area that is impacted by the project.
19 (b) The number of acres of wetland impacted, if known,
20 or a statement that wetlands will or will not be impacted, if
21 the exact acreage is unknown.
22 (c) Reproduction of a vicinity map showing the
23 location of the project.
24 (d) A statement of whether or not the project will
25 impact the habitat of endangered or threatened species, if
26 known, or a statement that such impacts have not been
27 determined if this information is not available.
28 (4) In order to establish a presumption of eligibility
29 to seek a formal proceeding pursuant to ss. 120.569 and
30 120.57, or s. 403.412(5) any substantially affected petitioner
31 must have submitted written comments, recommendations, or
18
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 objections to to the department or district prior to the
2 decision of the department or district to finalize agency
3 action, or in the alternative, in the case of a district,
4 submitted oral comments to the district's governing board.
5 Failure of any substantially affected petitioner to
6 participate in agency deliberations by providing written
7 comments, recommendations, or objections to the department of
8 district prior to its decision to finalize agency action shall
9 be considered by the administrative law judge in any
10 subsequent formal proceeding as evidence that a petitioner is
11 not a substantially affected party, and the petitioner shall
12 be deemed to have waived its right to an administrative
13 hearing unless good cause is presented regarding the lack of
14 participation.
15 (5) The party who objects to the intended agency
16 action bears the burden of going forward with the evidence and
17 the burden of persuasion.
18 (6) The Division of Administrative Hearings shall
19 conduct a final hearing on a permit application under this
20 part challenged pursuant to ss. 120.569 and 120.57 within 90
21 days after receipt by the division of the petition or request
22 for hearing provided however, the hearing schedule may be
23 extended by written agreement of all parties. During the
24 pendency of the administrative proceeding, the department or
25 the water management district, as applicable, may authorize
26 construction activities which are not subject to the
27 allegations contained in the petition or request for hearing
28 initiating the administrative challenge.
29 Section 11. Subsection (5) of section 403.412, Florida
30 Statutes, is amended to read:
31 403.412 Environmental Protection Act.--
19
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 (5) In any administrative, licensing, or other
2 proceedings authorized by law for the protection of the air,
3 water, or other natural resources of the state from pollution,
4 impairment, or destruction, the Department of Legal Affairs, a
5 political subdivision or municipality of the state, or a
6 citizen of the state shall have standing to intervene as a
7 party on the filing of a verified pleading asserting that the
8 activity, conduct, or product to be licensed or permitted has
9 or will have the effect of impairing, polluting, or otherwise
10 injuring the air, water, or other natural resources of the
11 state; however, a citizen of the state who is not
12 substantially affected by the activity, conduct, or product
13 may not institute, initiate, petition, or request a proceeding
14 pursuant to s. 120.569 or s. 120.57.
15 Section 12. Paragraph (c) of subsection (1) of section
16 120.52, Florida Statutes, is amended to read:
17 120.52 Definitions.--As used in this act:
18 (1) "Agency" means:
19 (a) The Governor in the exercise of all executive
20 powers other than those derived from the constitution.
21 (b) Each:
22 1. State officer and state department, and each
23 departmental unit described in s. 20.04.
24 2. State authority, including a regional water supply
25 authority.
26 3. State board.
27 4. State commission, including the Commission on
28 Ethics and the Fish and Wildlife Conservation Commission when
29 acting pursuant to statutory authority derived from the
30 Legislature.
31 5. Regional planning agency.
20
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 6. Multicounty special district with a majority of its
2 governing board comprised of nonelected persons.
3 7. Educational units.
4 8. Entity described in chapters 163, 373, 380, and 582
5 and s. 186.504.
6 (c) Each other unit of government in the state,
7 including counties and municipalities and units of local
8 government having jurisdiction only in one county or part
9 thereof, to the extent they are expressly made subject to this
10 act by general or special law or existing judicial decisions.
11
12 This definition does not include any legal entity or agency
13 created in whole or in part pursuant to chapter 361, part II,
14 an expressway authority pursuant to chapter 348, any legal or
15 administrative entity created by an interlocal agreement
16 pursuant to s. 163.01(7), unless any party to such agreement
17 is otherwise an agency as defined in this subsection, or any
18 multicounty special district with a majority of its governing
19 board comprised of elected persons; however, this definition
20 shall include a regional water supply authority.
21 Section 13. This act shall take effect upon becoming a
22 law.
23
24
25 ================ T I T L E A M E N D M E N T ===============
26 And the title is amended as follows:
27 On page 1, through page 3, lines 1-17,
28 remove from the title of the bill: all of said lines
29
30 and insert in lieu thereof:
31 An act relating to administrative procedure;
21
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 amending s. 57.111, F.S.; increasing the
2 maximum net worth for qualification as a small
3 business party under the Florida Equal Access
4 to Justice Act; increasing the limitation on
5 the amount of attorney's fees and costs that
6 may be awarded under the act; amending s.
7 120.573, F.S., which provides for mediation of
8 disputes under the Administrative Procedure
9 Act; revising the parties who must agree to
10 mediation and to the length of the mediation
11 period; revising requirements relating to the
12 mediation agreement; providing requirements for
13 the conduct of such mediation; providing
14 conditions under which certain parties are
15 entitled to recover attorney's fees and costs
16 after a subsequent hearing; amending s.
17 120.574, F.S., which provides for summary
18 hearings under said act; redesignating such
19 hearings as expedited hearings; revising
20 conditions under which such hearings may be
21 held; specifying time periods for filing
22 objections to a motion for such a hearing;
23 removing the requirement that the
24 administrative law judge's decision is final
25 agency action and providing for a recommended
26 order and final agency action on that order;
27 amending s. 373.1501, F.S., relating to
28 administrative action with respect to project
29 components of the Central and Southern Florida
30 Project, s. 403.088, F.S., relating to
31 proceedings regarding permits for certain
22
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 facilities in the Everglades Protection Area,
2 and s. 408.7056, F.S., relating to certain
3 proposed orders under the Statewide Provider
4 and Subscriber Assistance Program, to conform
5 language with respect to expedited hearings;
6 amending s. 403.973, F.S., which provides for
7 expedited permitting for certain projects;
8 revising conditions under which the expedited
9 hearing provisions of the Administrative
10 Procedure Act apply to the expedited permitting
11 process; conforming language; amending s.
12 120.595, F.S.; providing for award of
13 attorney's fees and costs to the petitioner
14 when an agency statement is challenged under
15 the Administrative Procedure Act as not having
16 been properly adopted as a rule and the agency
17 has proceeded to rulemaking; amending s.
18 373.114, F.S.; providing that water management
19 district orders resulting from a s. 120.569,
20 F.S., or s. 120.57, F.S., evidentiary hearing
21 are not subject to the Land and Water
22 Adjudicatory Commission's review authority;
23 amending s. 373.4141, F.S.; providing that an
24 applicant for a permit for a stormwater
25 management system, dam, impoundment, or other
26 work under pt. IV of ch. 373, F.S., may elect
27 to publish notice of such application;
28 specifying effect of such publication on the
29 rights of substantially affected persons to
30 initiate administrative proceedings with
31 respect to such application; providing that the
23
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183
HOUSE AMENDMENT
Bill No. CS/HB 2023
Amendment No. 01 (for drafter's use only)
1 party opposed to agency action bears the burden
2 of going forward and persuasion; specifying the
3 date by which a final hearing must be held when
4 a permit application is challenged and
5 providing that certain construction activities
6 may be authorized during the pendency of the
7 administrative proceeding; amending s. 403.412,
8 F.S.; providing that a citizen who is not a
9 substantially affected person may not initiate
10 certain administrative proceedings under the
11 Environmental Protection Act of 1971; amending
12 s. 120.52, F.S., clarifying which governmental
13 entities are subject to the administrative
14 procedure act; providing an effective date.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
24
File original & 9 copies 04/07/00
hgv0002 11:43 am 02023-grr -235183