Senate Bill 2556c1

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    Florida Senate - 2000                           CS for SB 2556

    By the Committee on Judiciary and Senator King





    308-2074-00

  1                      A bill to be entitled

  2         An act relating to administrative procedure;

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

  4         maximum net worth for qualification as a small

  5         business party under the Florida Equal Access

  6         to Justice Act; increasing the limitation on

  7         the amount of attorney's fees and costs that

  8         may be awarded under the act; amending s.

  9         120.573, F.S., which provides for mediation of

10         disputes under the Administrative Procedure

11         Act; revising the parties who must agree to

12         mediation and to the length of the mediation

13         period; revising requirements relating to the

14         mediation agreement; providing requirements for

15         the conduct of such mediation; amending s.

16         120.574, F.S., which provides for summary

17         hearings under the act; redesignating such

18         hearings as expedited hearings; revising

19         conditions under which such hearings may be

20         held; specifying time periods for filing

21         objections to a motion for such a hearing;

22         removing the requirement that the

23         administrative law judge's decision is final

24         agency action and providing for a recommended

25         order and final agency action on that order;

26         amending s. 373.1501, F.S., relating to

27         administrative action with respect to project

28         components of the Central and Southern Florida

29         Project; amending s. 403.088, F.S., relating to

30         proceedings regarding permits for certain

31         facilities in the Everglades Protection Area;

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  1         amending s. 408.7056, F.S., relating to certain

  2         proposed orders under the Statewide Provider

  3         and Subscriber Assistance Program, to conform

  4         language with respect to expedited hearings;

  5         amending s. 403.973, F.S., which provides for

  6         expedited permitting for certain projects;

  7         revising conditions under which the expedited

  8         hearing provisions of the Administrative

  9         Procedure Act apply to the expedited permitting

10         process; conforming language; amending s.

11         120.542, F.S.; allowing agencies to provide

12         specified relief to persons who are

13         substantially affected by agency rule, rather

14         than to persons who are subject to regulation;

15         amending s. 120.595, F.S.; providing for award

16         of attorney's fees and costs to the petitioner

17         when an agency statement is challenged under

18         the Administrative Procedure Act as not having

19         been properly adopted as a rule and the agency

20         has proceeded to rulemaking; amending s.

21         373.114, F.S.; providing that water management

22         district orders resulting from certain

23         evidentiary hearings are not subject to the

24         Land and Water Adjudicatory Commission's review

25         authority; amending s. 373.4141, F.S.;

26         providing that an applicant for a permit for a

27         stormwater management system, dam, impoundment,

28         or other work under pt. IV of ch. 373, F.S.,

29         may elect to publish notice of such an

30         application; specifying the effect of such

31         publication on the rights of substantially

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  1         affected persons to initiate administrative

  2         proceedings with respect to such an

  3         application; providing that the party opposed

  4         to agency action bears the burden of going

  5         forward and persuasion; specifying the date by

  6         which a final hearing must be held when a

  7         permit application is challenged and providing

  8         that certain construction activities may be

  9         authorized during the pendency of the

10         administrative proceeding; amending s. 403.412,

11         F.S.; providing that a resident of this state

12         who is not a substantially affected person may

13         not initiate certain administrative proceedings

14         under the Environmental Protection Act of 1971;

15         amending s. 120.52, F.S.; clarifying which

16         governmental entities are subject to the

17         Administrative Procedure Act; providing an

18         effective date.

19

20  Be It Enacted by the Legislature of the State of Florida:

21

22         Section 1.  Paragraph (d) of subsection (3) and

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

24  Statutes, are amended to read:

25         57.111  Civil actions and administrative proceedings

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

27         (3)  As used in this section:

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

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

30  including a professional practice, whose principal office is

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

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

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

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

  4  including both personal and business investments; or

  5         b.  A partnership or corporation, including a

  6  professional practice, which has its principal office in this

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

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

  9  not more than $5 $2 million; or

10         2.  Either small business party as defined in

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

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

13  administrative proceeding under that section to contest the

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

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

16  or penalty therefor.

17         (4)

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

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

20  an evidentiary hearing on the application for an award of

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

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

23  of an administrative law judge is reviewable in accordance

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

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

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

27  costs for the appeal.

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

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

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

31  initiated by a state agency shall exceed $75,000 $15,000.

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  1         Section 2.  Section 120.573, Florida Statutes, is

  2  amended to read:

  3         120.573  Mediation of disputes.--

  4         (1)  Each announcement of an agency action that affects

  5  substantial interests shall advise whether mediation of the

  6  administrative dispute for the type of agency action announced

  7  is available and that choosing mediation does not affect the

  8  right to an administrative hearing.  If the agency and all

  9  parties to the administrative action agree to mediation, in

10  writing, within 10 days after the time period stated in the

11  announcement for election of an administrative remedy under

12  ss. 120.569 and 120.57, the time limitations imposed by ss.

13  120.569 and 120.57 shall be tolled to allow the agency and

14  parties to mediate the administrative dispute.  The mediation

15  shall be concluded within 60 days of such agreement unless

16  otherwise agreed by the parties.  The mediation agreement

17  shall include provisions for mediator selection, the

18  allocation of costs and fees associated with mediation, and

19  the mediating parties' understanding regarding the

20  confidentiality of discussions and documents introduced during

21  mediation.  If mediation results in settlement of the

22  administrative dispute, the agency shall enter a final order

23  incorporating the agreement of the parties.  If mediation

24  terminates without settlement of the dispute, the agency shall

25  notify the parties in writing that the administrative hearing

26  processes under ss. 120.569 and 120.57 are resumed.

27         (2)  Each announcement of an agency action under parts

28  II and IV of chapter 373 and part VIII of chapter 403 which

29  affects substantial interests shall advise whether mediation

30  of the administrative dispute for the type of agency action

31  announced is available and that choosing mediation does not

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  1  affect the right to an administrative hearing.  If the agency

  2  and the party subject to the agency action agree to mediation,

  3  in writing, within 10 days after the time period stated in the

  4  announcement for election of an administrative remedy under

  5  ss. 120.569 and 120.57, the time limitations imposed by ss.

  6  120.569 and 120.57 shall be tolled to allow the agency and all

  7  original parties to mediate the administrative dispute.  The

  8  mediation shall be concluded within 60 days of such agreement

  9  unless otherwise agreed by the agency and the party subject to

10  the agency action. The mediation agreement shall include

11  provisions for mediator selection, the allocation of costs and

12  fees associated with mediation, and the mediating parties'

13  understanding regarding the confidentiality of discussions and

14  documents introduced during mediation and may address the

15  allocation of attorney's fees and costs. If mediation results

16  in settlement of the administrative dispute, the agency shall

17  enter a final order incorporating the agreement of the

18  parties. If mediation terminates without settlement of the

19  dispute, the agency shall notify the parties in writing that

20  the administrative hearing processes under ss. 120.569 and

21  120.57 are resumed.

22         Section 3.  Section 120.574, Florida Statutes, is

23  amended to read:

24         120.574  Expedited Summary hearing.--

25         (1)(a)  Within 5 business days following the division's

26  receipt of a petition or request for hearing, the division

27  shall issue and serve on all original parties an initial order

28  that assigns the case to a specific administrative law judge

29  and provides general information regarding practice and

30  procedure before the division. The initial order shall also

31  contain a statement advising the original parties addressees

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  1  that an expedited a summary hearing is available, if the

  2  affected agency agrees, upon the agreement of all parties

  3  under subsection (2) and briefly describing the accelerated

  4  expedited time sequences, limited discovery, and final order

  5  provisions of the expedited summary procedure.

  6         (b)  Within 15 days after service of the initial order,

  7  any party may file with the division a motion for expedited

  8  summary hearing in accordance with subsection (2). If a

  9  non-agency party files such a motion, and the affected agency

10  does not file a written objection within 7 days after the

11  service of that motion, or if the affected agency files such a

12  motion, and the original parties do not file a written

13  objection within 7 days after the service of the motion, then

14  the motion shall be granted and an order shall be entered

15  setting the hearing date, which shall commence within 30 days

16  from the date the response period to the motion expires. If

17  the affected agency files such a motion, and an original party

18  files a response within 7 days after service of that motion

19  objecting to the expedited hearing, the administrative law

20  judge shall, within 5 days from the filing of that response,

21  enter an order granting the motion for expedited hearing,

22  unless he or she determines that any of the original parties

23  will be unduly prejudiced thereby, which hearing shall be

24  commenced within 30 days after the date the order granting the

25  expedited hearing is entered. If all original parties agree,

26  in writing, to the summary proceeding, the proceeding shall be

27  conducted within 30 days of the agreement, in accordance with

28  the provisions of subsection (2).

29         (c)  Intervenors in the proceeding shall be governed by

30  the decision of the administrative law judge original parties

31  regarding whether the case will proceed in accordance with the

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  1  expedited summary hearing process and shall not have standing

  2  to challenge that decision.

  3         (d)  If a motion for expedited summary hearing is not

  4  filed within 15 days after service of the division's initial

  5  order, the matter shall proceed in accordance with ss. 120.569

  6  and 120.57.

  7         (2)  In any case to which this subsection is

  8  applicable, the following procedures apply:

  9         (a)  Motions shall be limited to the following:

10         1.  A motion in opposition to the petition.

11         2.  A motion requesting discovery beyond the informal

12  exchange of documents and witness lists described in paragraph

13  (b). Upon a showing of necessity, additional discovery may be

14  permitted in the discretion of the administrative law judge,

15  but only if it can be completed not later than 5 days prior to

16  the final hearing.

17         3.  A motion for continuance of the final hearing date.

18         4.  A motion requesting a prehearing conference, or the

19  administrative law judge may require a prehearing conference,

20  for the purpose of identifying:  the legal and factual issues

21  to be considered at the final hearing; the names and addresses

22  of witnesses who may be called to testify at the final

23  hearing; documentary evidence that will be offered at the

24  final hearing; the range of penalties that may be imposed upon

25  final hearing; and any other matter that the administrative

26  law judge determines would expedite resolution of the

27  proceeding.  The prehearing conference may be held by

28  telephone conference call.

29         5.  During or after any preliminary hearing or

30  conference, any party or the administrative law judge may

31  suggest that the case is no longer appropriate for expedited

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  1  summary disposition. Following any argument requested by the

  2  parties, the administrative law judge may enter an order

  3  referring the case back to the formal adjudicatory process

  4  described in s. 120.57(1), in which event the parties shall

  5  proceed accordingly.

  6         (b)  Not later than 5 days prior to the final hearing,

  7  the parties shall furnish to each other copies of documentary

  8  evidence and lists of witnesses who may testify at the final

  9  hearing.

10         (c)  All parties shall have an opportunity to respond,

11  to present evidence and argument on all issues involved, to

12  conduct cross-examination and submit rebuttal evidence, and to

13  be represented by counsel or other qualified representative.

14         (d)  The record in a case governed by this subsection

15  shall consist only of:

16         1.  All notices, pleadings, motions, and intermediate

17  rulings.

18         2.  Evidence received.

19         3.  A statement of matters officially recognized.

20         4.  Proffers of proof and objections and rulings

21  thereon.

22         5.  Matters placed on the record after an ex parte

23  communication.

24         6.  The written decision of the administrative law

25  judge presiding at the final hearing.

26         7.  The official transcript of the final hearing.

27         (e)  The agency shall accurately and completely

28  preserve all testimony in the proceeding and, upon request by

29  any party, shall make a full or partial transcript available

30  at no more than actual cost.

31

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  1         (f)  The decision of the administrative law judge shall

  2  be rendered within 30 days after the conclusion of the final

  3  hearing or the filing of the transcript thereof, whichever is

  4  later.  The administrative law judge's recommended order

  5  decision, which shall be final agency action subject to

  6  judicial review under s. 120.68, shall include the following:

  7         1.  Findings of fact based exclusively on the evidence

  8  of record and matters officially recognized.

  9         2.  Conclusions of law.

10         3.  Imposition of a fine or penalty, if applicable.

11         4.  Any other information required by law or rule to be

12  contained in a final order.

13         (g)  The parties may file exceptions to the

14  administrative law judge's recommended order within 10 days

15  after its issuance and responses may be filed within 5 days of

16  the exceptions. The agency shall issue the final order within

17  30 days after the issuance of the administrative law judge's

18  recommended order. For a period of 2 years following October

19  1, 1996, the division shall maintain a register of the total

20  number of formal proceedings filed with the division under s.

21  120.57(1).

22         Section 4.  Subsection (8) of section 373.1501, Florida

23  Statutes, is amended to read:

24         373.1501  South Florida Water Management District as

25  local sponsor.--

26         (8)  Final agency action with regard to any project

27  component subject to s. 373.026(8)(b) shall be taken by the

28  department. Actions taken by the district pursuant to

29  subsection (5) shall not be considered final agency action.

30  Any petition for formal proceedings filed pursuant to ss.

31  120.569 and 120.57 shall require a hearing under the expedited

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  1  summary hearing provisions of s. 120.574, which shall be

  2  mandatory. The final hearing under this section shall be held

  3  within 30 days after receipt of the petition by the Division

  4  of Administrative Hearings.

  5         Section 5.  Paragraph (g) of subsection (2) of section

  6  403.088, Florida Statutes, is amended to read:

  7         403.088  Water pollution operation permits;

  8  conditions.--

  9         (2)

10         (g)  The Legislature finds that the restoration of the

11  Everglades Protection Area, including the construction,

12  operation, and maintenance of stormwater treatment areas

13  (STAs) is in the public interest. Accordingly, whenever a

14  facility to be constructed, operated, or maintained in

15  accordance with s. 373.4592 is subjected to permitting

16  requirements pursuant to chapter 373 or this chapter, and the

17  issuance of the initial permit for a new source, a new

18  discharger, or a recommencing discharger is subjected to a

19  request for hearing pursuant to s. 120.569, the administrative

20  law judge may, upon motion by the permittee, issue a

21  recommended order to the secretary who, within 5 days, shall

22  issue an order authorizing the interim construction,

23  operation, and maintenance of the facility if it complies with

24  all uncontested conditions of the proposed permit and all

25  other conditions recommended by the administrative law judge

26  during the period until the final agency action on the permit.

27         1.  An order authorizing such interim construction,

28  operation, and maintenance shall be granted if requested by

29  motion and no party opposes it.

30         2.  If a party to the administrative hearing pursuant

31  to ss. 120.569 and 120.57 opposes the motion, the

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  1  administrative law judge shall issue a recommended order

  2  granting the motion if the administrative law judge finds

  3  that:

  4         a.  The facility is likely to receive the permit; and

  5         b.  The environment will not be irreparably harmed by

  6  the construction, operation, or maintenance of the facility

  7  pending final agency action on the permit.

  8         3.  Prior to granting a contested motion for interim

  9  construction, operation, or maintenance of a facility

10  authorized by s. 373.4592, the administrative law judge shall

11  conduct a hearing using the expedited summary hearing process

12  defined in s. 120.574, which shall be mandatory for motions

13  made pursuant to this paragraph.  Notwithstanding the

14  provisions of s. 120.574(1), expedited summary hearing

15  proceedings for these facilities shall begin within 30 days of

16  the motion made by the permittee. Within 15 days of the

17  conclusion of the expedited summary proceeding, the

18  administrative law judge shall issue a recommended order

19  either denying or approving interim construction, operation,

20  or maintenance of the facility, which shall be submitted to

21  the secretary who shall within 5 days thereafter, enter an

22  order granting or denying interim construction operation or

23  maintenance of the facility. The order shall remain in effect

24  until final agency action is taken on the permit.

25         Section 6.  Subsections (8), (13), and (15) of section

26  403.973, Florida Statutes, are amended to read:

27         403.973  Expedited permitting; comprehensive plan

28  amendments.--

29         (8)  At the option of the participating local

30  government, appeals of its final approval for a project may be

31  pursuant to the expedited summary hearing provisions of s.

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  1  120.574, pursuant to subsection (15), or pursuant to other

  2  appellate processes available to the local government. The

  3  local government's decision to enter into an expedited a

  4  summary hearing must be made as provided in s. 120.574 or in

  5  the memorandum of agreement.

  6         (13)  The applicant, the regional permit action team,

  7  and participating local governments may agree to incorporate

  8  into a single document the permits, licenses, and approvals

  9  that are obtained through the expedited permit process. This

10  consolidated permit is subject to the expedited summary

11  hearing provisions set forth in subsection (15).

12         (15)  The expedited hearing process as provided for in

13  s. 120.574 shall be used with regard to challenges to state

14  agency action in the expedited permitting process for projects

15  processed under this section. Notwithstanding s. 120.574, use

16  of the expedited hearing process does not require consent of

17  the affected agency or a determination by the administrative

18  law judge as to its propriety; however, the hearing schedule

19  may be extended by written agreement of all parties. are

20  subject to the summary hearing provisions of s. 120.574,

21  except that the administrative law judge's decision, as

22  provided in s. 120.574(2)(f), shall be in the form of a

23  recommended order and shall not constitute the final action of

24  the state agency. In those proceedings where the action of

25  only one agency of the state is challenged, the agency of the

26  state shall issue the final order within 10 working days of

27  receipt of the administrative law judge's recommended order.

28  In those proceedings where the actions of more than one agency

29  of the state are challenged, the Governor shall issue the

30  final order within 10 working days of receipt of the

31  administrative law judge's recommended order. The

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  1  participating agencies of the state may opt at the preliminary

  2  hearing conference to allow the administrative law judge's

  3  decision to constitute the final agency action. If a

  4  participating local government agrees to participate in the

  5  expedited summary hearing provisions of s. 120.574 for

  6  purposes of review of local government comprehensive plan

  7  amendments, s. 163.3184(9) and (10) apply.

  8         Section 7.  Subsection (14) of section 408.7056,

  9  Florida Statutes, is amended to read:

10         408.7056  Statewide Provider and Subscriber Assistance

11  Program.--

12         (14)  A proposed order issued by the agency or

13  department which only requires the managed care entity to take

14  a specific action under subsection (7) is subject to an

15  expedited a summary hearing in accordance with s. 120.574,

16  unless all of the parties agree otherwise. If the managed care

17  entity does not prevail at the hearing, the managed care

18  entity must pay reasonable costs and attorney's fees of the

19  agency or the department incurred in that proceeding.

20         Section 8.  Subsections (1) and (5) of section 120.542,

21  Florida Statutes, are amended to read:

22         120.542  Variances and waivers.--

23         (1)  Strict application of uniformly applicable rule

24  requirements can lead to unreasonable, unfair, and unintended

25  results in particular instances. The Legislature finds that it

26  is appropriate in such cases to adopt a procedure for agencies

27  to provide relief to persons who are substantially affected by

28  an agency rule subject to regulation. A public employee is not

29  a person who is substantially affected by agency rule subject

30  to regulation under this section for the purpose of

31  petitioning for a variance or waiver to a rule that affects

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  1  that public employee in his or her capacity as a public

  2  employee. Agencies are authorized to grant variances and

  3  waivers to requirements of their rules consistent with this

  4  section and with rules adopted under the authority of this

  5  section. An agency may limit the duration of any grant of a

  6  variance or waiver or otherwise impose conditions on the grant

  7  only to the extent necessary for the purpose of the underlying

  8  statute to be achieved. This section does not authorize

  9  agencies to grant variances or waivers to statutes or to rules

10  required by the Federal Government for the agency's

11  implementation or retention of any federally approved or

12  delegated program, except as allowed by the program or when

13  the variance or waiver is also approved by the appropriate

14  agency of the Federal Government.  This section is

15  supplemental to, and does not abrogate, the variance and

16  waiver provisions in any other statute.

17         (5)  A person who is substantially affected subject to

18  regulation by an agency rule may file a petition with that

19  agency, with a copy to the committee, requesting a variance or

20  waiver from the agency's rule.  In addition to any

21  requirements mandated by the uniform rules, each petition

22  shall specify:

23         (a)  The rule from which a variance or waiver is

24  requested.

25         (b)  The type of action requested.

26         (c)  The specific facts that would justify a waiver or

27  variance for the petitioner.

28         (d)  The reason why the variance or the waiver

29  requested would serve the purposes of the underlying statute.

30         Section 9.  Paragraph (a) of subsection (4) of section

31  120.595, Florida Statutes, is amended to read:

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  1         120.595  Attorney's fees.--

  2         (4)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

  3  120.56(4).--

  4         (a)  Upon entry of a final order that all or part of an

  5  agency statement violates s. 120.54(1)(a), the administrative

  6  law judge shall award reasonable costs and reasonable

  7  attorney's fees to the petitioner, unless the agency

  8  demonstrates that the statement is required by the Federal

  9  Government to implement or retain a delegated or approved

10  program or to meet a condition to receipt of federal funds.

11  Notwithstanding any other provision of law to the contrary, if

12  an agency publishes a proposed rule as described in s.

13  120.56(4)(e) more than 15 days after the date on which the

14  petition is filed and a final order has not been entered

15  because the agency has proceeded to rulemaking or a final

16  order has been entered in favor of the agency solely because

17  the agency has proceeded to rulemaking and has effectively

18  relied upon s. 120.56(4)(e), the administrative law judge

19  shall nevertheless enter an order awarding the petitioner

20  reasonable attorney's fees and costs. Attorney's fees and

21  costs shall not be awarded if the agency prevails that the

22  agency statement does not violate s. 120.54(1)(a).

23         Section 10.  Subsection (1) of section 373.114, Florida

24  Statutes, is amended to read:

25         373.114  Land and Water Adjudicatory Commission; review

26  of district rules and orders; department review of district

27  rules.--

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

29  and Cabinet, sitting as the Land and Water Adjudicatory

30  Commission, have the exclusive authority to review any order

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

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

  2  resulting from a s. 120.69 or s. 120.57 evidentiary hearing,

  3  to ensure consistency with the provisions and purposes of this

  4  chapter. Subsequent to the legislative ratification of the

  5  delineation methodology pursuant to s. 373.421(1), this

  6  subsection also shall apply to an order of the department, or

  7  a local government exercising delegated authority, pursuant to

  8  ss. 373.403-373.443, except an order pertaining to activities

  9  or operations subject to conceptual plan approval pursuant to

10  chapter 378.

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

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

13  review with the Land and Water Adjudicatory Commission and

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

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

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

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

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

19  nature which stated with particularity objections to or

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

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

22  person who participated as a party in a proceeding instituted

23  pursuant to chapter 120.  In order for the commission to

24  accept a request for review initiated by a party below, with

25  regard to a specific order, four members of the commission

26  must determine on the basis of the record below that the

27  activity authorized by the order would substantially affect

28  natural resources of statewide or regional significance.

29  Review of an order may also be accepted if four members of the

30  commission determine that the order raises issues of policy,

31  statutory interpretation, or rule interpretation that have

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  1  regional or statewide significance from the standpoint of

  2  agency precedent. The party requesting the commission to

  3  review an order must allege with particularity, and the

  4  commission must find, that:

  5         1.  The order is in conflict with statutory

  6  requirements; or

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

  8  duly adopted rule.

  9         (b)  Review by the Land and Water Adjudicatory

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

11  the record below.  If there was no evidentiary administrative

12  proceeding below, the facts contained in the proposed agency

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

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

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

16  unless waived by the parties.

17         (c)  If the Land and Water Adjudicatory Commission

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

19  consistent with the provisions and purposes of this chapter,

20  it may require the water management district to initiate

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

22  commission determines that an order is not consistent with the

23  provisions and purposes of this chapter, the commission may

24  rescind or modify the order or remand the proceeding for

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

26  Adjudicatory Commission only if the commission determines that

27  the activity authorized by the order would substantially

28  affect natural resources of statewide or regional

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

30  substantially affect natural resources of statewide or

31  regional significance, but which raises issues of policy that

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  1  have regional or statewide significance from the standpoint of

  2  agency precedent, the commission may direct the district to

  3  initiate rulemaking to amend its rules to assure that future

  4  actions are consistent with the provisions and purposes of

  5  this chapter without modifying the order.

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

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

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

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

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

11  section.

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

13  be a precondition to the seeking of judicial review pursuant

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

15  of rule validity pursuant to s. 120.56.

16         (f)  The Florida Land and Water Adjudicatory Commission

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

18  order or rule of a water management district consistent with

19  the provisions of this section.

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

21  presumed that activity authorized by an order will not affect

22  resources of statewide or regional significance if the

23  proposed activity:

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

25         2.  Does not create impervious surfaces greater than 2

26  acres in size, and

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

28  a named body of water designated as Outstanding Florida

29  Waters, and

30         4.  Does not adversely affect threatened or endangered

31  species.

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  1

  2  This paragraph shall not operate to hold that any activity

  3  that exceeds these limits is presumed to affect resources of

  4  statewide or regional significance.  The determination of

  5  whether an activity will substantially affect resources of

  6  statewide or regional significance shall be made on a

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

  8  below.

  9         Section 11.  Section 373.4141, Florida Statutes, is

10  amended to read:

11         373.4141  Permits; processing.--

12         (1)  Within 30 days after receipt of an application for

13  a permit under this part, the department or the water

14  management district shall review the application and shall

15  request submittal of all additional information the department

16  or the water management district is permitted by law to

17  require. If the applicant believes any request for additional

18  information is not authorized by law or rule, the applicant

19  may request a hearing pursuant to s. 120.57.  Within 30 days

20  after receipt of such additional information, the department

21  or water management district shall review it and may request

22  only that information needed to clarify such additional

23  information or to answer new questions raised by or directly

24  related to such additional information. If the applicant

25  believes the request of the department or water management

26  district for such additional information is not authorized by

27  law or rule, the department or water management district, at

28  the applicant's request, shall proceed to process the permit

29  application.

30         (2)  A permit shall be approved or denied within 90

31  days after receipt of the original application, the last item

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  1  of timely requested additional material, or the applicant's

  2  written request to begin processing the permit application.

  3         (3)  When the permit application is deemed complete

  4  pursuant to this subsection, or when the applicant declines to

  5  provide additional information and demands that the agency

  6  proceed to process the permit application, the applicant may

  7  elect to publish notice of the application and request that

  8  the department or water management district mail a notice to

  9  every person who has submitted a request for such notice that

10  a permit is being processed, and may be the subject of final

11  agency action, and all persons owning property within 500 feet

12  of the boundary of the proposed project.  The department or

13  district shall maintain a permanent list of persons requesting

14  such notices, and shall regularly update this list.  Once each

15  year, in a newspaper of general circulation in each county,

16  the department and respective district shall publish a notice

17  indicating that persons who wish to be notified of such permit

18  applications may submit a written request for such notices to

19  the department or district.  Each mailed notice shall include:

20         (a)  A description of the project, permit

21  identification number, identity of the applicant, and the

22  water body or wetland area that is impacted by the project.

23         (b)  The number of acres of wetland impacted, if known,

24  or a statement that wetlands will or will not be impacted, if

25  the exact acreage is unknown.

26         (c)  Reproduction of a vicinity map showing the

27  location of the project.

28         (d)  A statement of whether or not the project will

29  impact the habitat of endangered or threatened species, if

30  known, or a statement that such impacts have not been

31  determined if this information is not available.

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  1         (4)  In order to establish a presumption of eligibility

  2  to seek a formal proceeding pursuant to ss. 120.569 and

  3  120.57, or s. 403.412(5), any substantially affected

  4  petitioner must have submitted written comments,

  5  recommendations, or objections to the department or district

  6  prior to the decision of the department or district to

  7  finalize agency action or, in the alternative, in the case of

  8  a district, submitted oral comments to the district's

  9  governing board.  Failure of any substantially affected

10  petitioner to participate in agency deliberations by providing

11  written comments, recommendations, or objections to the

12  department or district prior to its decision to finalize

13  agency action shall be considered by the administrative law

14  judge in any subsequent formal proceeding as evidence that a

15  petitioner is not a substantially affected party, and the

16  petitioner shall be deemed to have waived its right to an

17  administrative hearing unless good cause is presented

18  regarding the lack of participation.

19         (5)  The party who objects to the intended agency

20  action bears the burden of going forward with the evidence and

21  the burden of persuasion.

22         (6)  The Division of Administrative Hearings shall

23  conduct a final hearing on a permit application under this

24  part challenged pursuant to ss. 120.569 and 120.57 within 90

25  days after receipt by the division of the petition or request

26  for hearing; however, the hearing schedule may be extended by

27  written agreement of all parties.  During the pendency of the

28  administrative proceeding, the department or the water

29  management district, as applicable, may authorize construction

30  activities that are not subject to the allegations contained

31

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  1  in the petition or request for hearing initiating the

  2  administrative challenge.

  3         Section 12.  Subsection (5) of section 403.412, Florida

  4  Statutes, is amended to read:

  5         403.412  Environmental Protection Act.--

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

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

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

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

10  political subdivision or municipality of the state, or a

11  resident of this state shall have standing to intervene as a

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

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

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

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

16  state; however, a resident of this state who is not

17  substantially affected by the activity, conduct, or product

18  may not institute, initiate, petition, or request a proceeding

19  pursuant to s. 120.569 or s. 120.57.

20         Section 13.  Paragraphs (b) and (c) of subsection (1)

21  of section 120.52, Florida Statutes, are amended to read:

22         120.52  Definitions.--As used in this act:

23         (1)

24         (b)  Each:

25         1.  State officer and state department, and each

26  departmental unit described in s. 20.04.

27         2.  State authority, including a regional water supply

28  authority.

29         3.  State board.

30         4.  State commission, including the Commission on

31  Ethics and the Fish and Wildlife Conservation Commission when

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  1  acting pursuant to statutory authority derived from the

  2  Legislature.

  3         5.  Regional planning agency.

  4         6.  Multicounty special district with a majority of its

  5  governing board comprised of nonelected persons.

  6         7.  Educational units.

  7         (c)  Each other unit of government in the state,

  8  including counties and municipalities and units of local

  9  government having jurisdiction only in one county or part

10  thereof, to the extent they are expressly made subject to this

11  act by general or special law or existing judicial decisions.

12

13  This definition does not include any legal entity or agency

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

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

16  administrative entity created by an interlocal agreement

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

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

19  multicounty special district with a majority of its governing

20  board comprised of elected persons; however, this definition

21  shall include a regional water supply authority.

22         Section 14.  This act shall take effect upon becoming a

23  law.

24

25

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27

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29

30

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 2556

  3

  4  Revises the mediation provisions to expressly apply to agency
    action under parts II and IV of chapter 373, F.S., and part
  5  VIII of chapter 403, F.S, and removes the provision which
    potentially subjects a party to attorney's fees and costs when
  6  there is no settlement at mediation.

  7  Revises the expedited hearing provisions to provide that,
    after the parties file exceptions to the administrative law
  8  judge's recommended order, the parties may file responses to
    the exceptions within 5 days of filing of the exceptions.
  9
    Revises the expedited hearing provisions pertaining to
10  expedited permitting in comprehensive plan amendments to
    provide that the hearing schedule may be extended by written
11  agreement of all parties.

12  Adds a new section to the bill which amends s. 120.542, F.S.,
    pertaining to variances and waivers from rule requirements.
13  Changes the standing requirement so that persons seeking
    variances or waivers must be persons substantially affected by
14  an agency rule.

15  Reviews the attorney's fees provision for challenges to agency
    action pursuant to s. 120.56(4), F.S., to provide that one of
16  the situations where attorney's fees shall be awarded to the
    petitioner is when an agency publishes a rule more than 15
17  days after the date the petition is filed and a final order
    has not been entered because the agency has proceeded to
18  rulemaking.

19  Adds a new subsection to the bill which amends s. 373.114,
    F.S., pertaining to the Land and Water Adjudicatory
20  Commission, which is comprised of the Governor and Cabinet.
    The amendment provides that the Commission does not have
21  authority to review orders of water management districts which
    result from an evidentiary proceeding under ss. 120.69 or
22  120.57, F.S.

23  Substantially revises the provisions pertaining to the
    processing of permits by water management districts under s.
24  373.4141, F.S., in the following manner:

25  --    After the application for the permit is deemed complete
          or the applicant declines to provide additional
26        information, the applicant may publish notice of the
          application and request the department or water
27        management district to mail a notice to every person who
          has requested such notice, and may be subject to the
28        final agency action, and all property owners within 500
          feet of the proposed project.
29
    --    The department or district shall maintain a permanent
30        list of persons requesting notices. The department and
          respective district shall publish once each year, in a
31        newspaper of general circulation in each county, a
          notice indicating that persons may be placed on the list
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  1        for receiving notice of permit applications. The notice
          mailed to persons on the list must include certain
  2        prescribed information.

  3  --    Creates a presumption that a petitioner is not a
          substantially affected party and has waived its right to
  4        an administrative hearing if the petitioner has not
          submitted written comments, recommendations, or
  5        objections prior to the decision to finalize agency
          action.
  6
    --    Removes the provision that applications approved or
  7        denied by a two-thirds vote carry a presumption of
          correctness in any proceeding pursuant to ss. 120.569 or
  8        120.57, F.S.

  9  --    Amends the provision requiring final hearings to be held
          within 90 days of the request for a final hearing to
10        provide that the hearing schedule may be extended if
          agreed to in writing by the parties.
11
    Adds a new section to the bill, which amends s. 403.412(5),
12  F.S., to provide that residents who are not substantially
    affected by the activity impairing, polluting, or otherwise
13  injuring the air, water, or other natural resource may not
    institute, initiate, petition, or request a proceeding
14  pursuant to ss. 120.569, or 120.57, F.S.

15  Adds a new section to the bill which amends s. 120.52, F.S.,
    to clarify that the definition of agency means each state
16  authority, state board, state commission, or any unit of local
    government having jurisdiction only in one county or part
17  thereof to the extent it is expressly made subject to ch. 120,
    F.S., by general or special law or existing judicial
18  decisions.

19

20

21

22

23

24

25

26

27

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