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
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 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

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                                                   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

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                                                   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

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                                                   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:

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                                                   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

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                                                   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

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                                                   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.

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                                                   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

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                                                   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

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                                                   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.

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                                                   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

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                                                   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).--

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                                                   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

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                                                   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:

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                                                   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

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                                                   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

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                                                   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

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                                                   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

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                                                   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.--

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                                                   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.

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                                                   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

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                                                   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

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                                                   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

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                                                   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

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