SENATE AMENDMENT
    Bill No. CS for SB 910
    Amendment No. ___   Barcode 330674
                            CHAMBER ACTION
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11  Senator King moved the following amendment:
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13         Senate Amendment (with title amendment) 
14         Delete everything after the enacting clause
15  
16  and insert:  
17         Section 1.  Paragraph (d) of subsection (4) of section
18  57.111, Florida Statutes, is amended to read:
19         57.111  Civil actions and administrative proceedings
20  initiated by state agencies; attorneys' fees and costs.--
21         (4)
22         (d)  The court, or the administrative law judge in the
23  case of a proceeding under chapter 120, shall promptly conduct
24  an evidentiary hearing on the application for an award of
25  attorney's fees and shall issue a judgment, or a final order
26  in the case of an administrative law judge.  The final order
27  of an administrative law judge is reviewable in accordance
28  with the provisions of s. 120.68.  If the court affirms the
29  award of attorney's fees and costs in whole or in part, it
30  may, in its discretion, award additional attorney's fees and
31  costs for the appeal.
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SENATE AMENDMENT Bill No. CS for SB 910 Amendment No. ___ Barcode 330674 1 1. No award of attorney's fees and costs shall be made 2 in any case in which the state agency was a nominal party. 3 2. No award of attorney's fees and costs for an action 4 initiated by a state agency shall exceed $50,000 $15,000. 5 Section 2. Paragraph (e) of subsection (2) of section 6 120.569, Florida Statutes, is amended to read: 7 120.569 Decisions which affect substantial 8 interests.-- 9 (2) 10 (e)1. Every pleading, written motion, and other paper 11 filed in a proceeding must be signed by at least one attorney 12 or qualified representative of record in the attorney's or 13 qualified representative's individual name, or, if the party 14 is not represented by an attorney or qualified representative, 15 the pleading, written motion, or other paper must be signed by 16 the party. An unsigned paper shall be stricken unless omission 17 of the signature is corrected promptly after being called to 18 the attention of the attorney, qualified representative, or 19 party. 20 2. By presenting a pleading, written motion, or other 21 paper, whether by signing, filing, submitting, or later 22 advocating, an attorney, qualified representative, or 23 unrepresented party is certifying that, to the best of the 24 person's knowledge, information, and belief, formed after an 25 inquiry reasonable under the circumstances: 26 a. The pleading, written motion, or other paper is not 27 being presented for any improper purpose, such as to harass or 28 to cause unnecessary delay or needless increase in the cost of 29 litigation; 30 b. The claims, defenses, and other legal contentions 31 contained in the pleading, written motion, or other paper are 2 7:53 PM 05/02/01 s0910c1c-08b4b
SENATE AMENDMENT Bill No. CS for SB 910 Amendment No. ___ Barcode 330674 1 warranted by existing law or by a nonfrivolous argument for 2 the extension, modification, or reversal of existing law or 3 the establishment of new law; 4 c. The allegations and other factual contentions have 5 evidentiary support or, if specifically identified, are likely 6 to have evidentiary support after a reasonable opportunity for 7 further investigation or discovery; and 8 d. The denials of factual contentions are warranted on 9 the evidence or, if specifically identified, are reasonably 10 based on a lack of information or belief. 11 3. If, after notice and a reasonable opportunity to 12 respond, the presiding officer determines that subparagraph 2. 13 has been violated, the presiding officer may impose an 14 appropriate sanction against the person who signed it, the 15 represented party, or both, which may include an order to pay 16 the other party or parties the amount of reasonable expenses 17 incurred because of the filing of the pleading, motion, or 18 other paper, including reasonable attorney's fees. However: 19 a. Monetary sanctions may not be awarded against a 20 represented party for a violation of sub-subparagraph 2.b. 21 b. Monetary sanctions may not be awarded under this 22 paragraph based on a violation of discovery rules. 23 c. This paragraph does not authorize the award of 24 sanctions against any person who comments on or objects to a 25 draft permit during an authorized period for public comment or 26 at a public hearing. 27 4. Sanctions under this paragraph may be initiated at 28 any time after the initiation of a proceeding either by motion 29 or on the presiding officer's own initiative. A motion shall 30 describe the specific conduct alleged to violate subparagraph 31 2. The motion shall be served upon the attorney or qualified 3 7:53 PM 05/02/01 s0910c1c-08b4b
SENATE AMENDMENT Bill No. CS for SB 910 Amendment No. ___ Barcode 330674 1 representative of a party or an unrepresented party against 2 whom such sanctions are sought and shall be filed with the 3 presiding officer. However, such motion shall not be acted 4 upon by the presiding officer or called up for hearing by the 5 movant unless, within 14 days after service of the motion or 6 such other period as the presiding officer may prescribe, the 7 challenged paper, claim, defense, contention, allegation, or 8 denial is not withdrawn or appropriately corrected. A 9 presiding officer's own initiative to impose sanctions may be 10 undertaken only after entering an order describing the 11 specific conduct that appears to violate subparagraph 2. and 12 directing the attorney or qualified representative of a party 13 or the unrepresented party to show cause why subparagraph 2. 14 has not been violated. When imposing sanctions, the presiding 15 officer shall describe the conduct determined to constitute a 16 violation of subparagraph 2. and explain the basis for the 17 sanction imposed. All pleadings, motions, or other papers 18 filed in the proceeding must be signed by the party, the 19 party's attorney, or the party's qualified representative. The 20 signature constitutes a certificate that the person has read 21 the pleading, motion, or other paper and that, based upon 22 reasonable inquiry, it is not interposed for any improper 23 purposes, such as to harass or to cause unnecessary delay, or 24 for frivolous purpose or needless increase in the cost of 25 litigation. If a pleading, motion, or other paper is signed in 26 violation of these requirements, the presiding officer shall 27 impose upon the person who signed it, the represented party, 28 or both, an appropriate sanction, which may include an order 29 to pay the other party or parties the amount of reasonable 30 expenses incurred because of the filing of the pleading, 31 motion, or other paper, including a reasonable attorney's fee. 4 7:53 PM 05/02/01 s0910c1c-08b4b
SENATE AMENDMENT Bill No. CS for SB 910 Amendment No. ___ Barcode 330674 1 Section 3. Paragraphs (c) and (e) of subsection (1) of 2 section 120.595, Florida Statutes, are amended to read: 3 120.595 Attorney's fees.-- 4 (1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION 5 120.57(1).-- 6 (c) In proceedings pursuant to s. 120.57(1), and upon 7 motion, the administrative law judge shall determine whether 8 any party participated in the proceeding for an improper 9 purpose as defined by this subsection and s. 120.569(2)(e). In 10 making such determination, the administrative law judge shall 11 consider whether the nonprevailing adverse party has 12 participated in two or more other such proceedings involving 13 the same prevailing party and the same project as an adverse 14 party and in which such two or more proceedings the 15 nonprevailing adverse party did not establish either the 16 factual or legal merits of its position, and shall consider 17 whether the factual or legal position asserted in the instant 18 proceeding would have been cognizable in the previous 19 proceedings. In such event, it shall be rebuttably presumed 20 that the nonprevailing adverse party participated in the 21 pending proceeding for an improper purpose. 22 (e) For the purpose of this subsection: 23 1. "Improper purpose" means participation in a 24 proceeding pursuant to s. 120.57(1) primarily to harass or to 25 cause unnecessary delay or for frivolous purpose or to 26 needlessly increase the cost of litigation, licensing, or 27 securing the approval of an activity. 28 2. "Costs" has the same meaning as the costs allowed 29 in civil actions in this state as provided in chapter 57. 30 3. "Nonprevailing adverse party" means a party that 31 has failed to have substantially changed the outcome of the 5 7:53 PM 05/02/01 s0910c1c-08b4b
SENATE AMENDMENT Bill No. CS for SB 910 Amendment No. ___ Barcode 330674 1 proposed or final agency action which is the subject of a 2 proceeding. In the event that a proceeding results in any 3 substantial modification or condition intended to resolve the 4 matters raised in a party's petition, it shall be determined 5 that the party having raised the issue addressed is not a 6 nonprevailing adverse party. The recommended order shall 7 state whether the change is substantial for purposes of this 8 subsection. In no event shall the term "nonprevailing party" 9 or "prevailing party" be deemed to include any party that has 10 intervened in a previously existing proceeding to support the 11 position of an agency. 12 Section 4. Subsection (1) of section 373.114, Florida 13 Statutes, is amended to read: 14 373.114 Land and Water Adjudicatory Commission; review 15 of district rules and orders; department review of district 16 rules.-- 17 (1) Except as provided in subsection (2), the Governor 18 and Cabinet, sitting as the Land and Water Adjudicatory 19 Commission, have the exclusive authority to review any order 20 or rule of a water management district, other than a rule 21 relating to an internal procedure of the district, an order 22 resulting from an evidentiary hearing held under s. 120.569 or 23 s. 120.57, or a rule that has been adopted after issuance of 24 an order resulting from an evidentiary hearing held under s. 25 120.56, to ensure consistency with the provisions and purposes 26 of this chapter. Subsequent to the legislative ratification of 27 the delineation methodology pursuant to s. 373.421(1), this 28 subsection also shall apply to an order of the department, or 29 a local government exercising delegated authority, pursuant to 30 ss. 373.403-373.443, except an order pertaining to activities 31 or operations subject to conceptual plan approval pursuant to 6 7:53 PM 05/02/01 s0910c1c-08b4b
SENATE AMENDMENT Bill No. CS for SB 910 Amendment No. ___ Barcode 330674 1 chapter 378 or an order resulting from an evidentiary hearing 2 held under s. 120.569 or s. 120.57. 3 (a) Such review may be initiated by the department or 4 by a party to the proceeding below by filing a request for 5 review with the Land and Water Adjudicatory Commission and 6 serving a copy on the department and on any person named in 7 the rule or order within 20 days after adoption of the rule or 8 the rendering of the order. For the purposes of this section, 9 the term "party" means any affected person who submitted oral 10 or written testimony, sworn or unsworn, of a substantive 11 nature which stated with particularity objections to or 12 support for the rule or order that are cognizable within the 13 scope of the provisions and purposes of this chapter, or any 14 person who participated as a party in a proceeding instituted 15 pursuant to chapter 120. In order for the commission to accept 16 a request for review initiated by a party below, with regard 17 to a specific order, four members of the commission must 18 determine on the basis of the record below that the activity 19 authorized by the order would substantially affect natural 20 resources of statewide or regional significance. Review of an 21 order may also be accepted if four members of the commission 22 determine that the order raises issues of policy, statutory 23 interpretation, or rule interpretation that have regional or 24 statewide significance from the standpoint of agency 25 precedent. The party requesting the commission to review an 26 order must allege with particularity, and the commission must 27 find, that: 28 1. The order is in conflict with statutory 29 requirements; or 30 2. The order is in conflict with the requirements of a 31 duly adopted rule. 7 7:53 PM 05/02/01 s0910c1c-08b4b
SENATE AMENDMENT Bill No. CS for SB 910 Amendment No. ___ Barcode 330674 1 (b) Review by the Land and Water Adjudicatory 2 Commission is appellate in nature and shall be based solely on 3 the record below. If there was no evidentiary administrative 4 proceeding below, the facts contained in the proposed agency 5 action, including any technical staff report, shall be deemed 6 undisputed. The matter shall be heard by the commission not 7 more than 60 days after receipt of the request for review, 8 unless waived by the parties. 9 (c) If the Land and Water Adjudicatory Commission 10 determines that a rule of a water management district is not 11 consistent with the provisions and purposes of this chapter, 12 it may require the water management district to initiate 13 rulemaking proceedings to amend or repeal the rule. If the 14 commission determines that an order is not consistent with the 15 provisions and purposes of this chapter, the commission may 16 rescind or modify the order or remand the proceeding for 17 further action consistent with the order of the Land and Water 18 Adjudicatory Commission only if the commission determines that 19 the activity authorized by the order would substantially 20 affect natural resources of statewide or regional 21 significance. In the case of an order which does not itself 22 substantially affect natural resources of statewide or 23 regional significance, but which raises issues of policy that 24 have regional or statewide significance from the standpoint of 25 agency precedent, the commission may direct the district to 26 initiate rulemaking to amend its rules to assure that future 27 actions are consistent with the provisions and purposes of 28 this chapter without modifying the order. 29 (d) In a review under this section of a construction 30 permit issued pursuant to a conceptual permit under part IV, 31 which conceptual permit is issued after July 1, 1993, a party 8 7:53 PM 05/02/01 s0910c1c-08b4b
SENATE AMENDMENT Bill No. CS for SB 910 Amendment No. ___ Barcode 330674 1 to the review may not raise an issue which was or could have 2 been raised in a review of the conceptual permit under this 3 section. 4 (e) A request for review under this section shall not 5 be a precondition to the seeking of judicial review pursuant 6 to s. 120.68 or the seeking of an administrative determination 7 of rule validity pursuant to s. 120.56. 8 (f) The Florida Land and Water Adjudicatory Commission 9 may adopt rules to set forth its procedures for reviewing an 10 order or rule of a water management district consistent with 11 the provisions of this section. 12 (g) For the purpose of this section, it shall be 13 presumed that activity authorized by an order will not affect 14 resources of statewide or regional significance if the 15 proposed activity: 16 1. Occupies an area less than 10 acres in size, and 17 2. Does not create impervious surfaces greater than 2 18 acres in size, and 19 3. Is not located within 550 feet of the shoreline of 20 a named body of water designated as Outstanding Florida 21 Waters, and 22 4. Does not adversely affect threatened or endangered 23 species. 24 25 This paragraph shall not operate to hold that any activity 26 that exceeds these limits is presumed to affect resources of 27 statewide or regional significance. The determination of 28 whether an activity will substantially affect resources of 29 statewide or regional significance shall be made on a 30 case-by-case basis, based upon facts contained in the record 31 below. 9 7:53 PM 05/02/01 s0910c1c-08b4b
SENATE AMENDMENT Bill No. CS for SB 910 Amendment No. ___ Barcode 330674 1 Section 5. Subsection (5) of section 403.412, Florida 2 Statutes, is amended to read: 3 403.412 Environmental Protection Act.-- 4 (5)(a) In any administrative, licensing, or other 5 proceedings authorized by law for the protection of the air, 6 water, or other natural resources of the state from pollution, 7 impairment, or destruction, the Department of Legal Affairs, a 8 political subdivision or municipality of the state, or a 9 citizen of the state shall have standing to intervene as a 10 party on the filing of a verified pleading asserting that the 11 activity, conduct, or product to be licensed or permitted has 12 or will have the effect of impairing, polluting, or otherwise 13 injuring the air, water, or other natural resources of the 14 state. 15 (b) Citizen initiation of a proceeding under s. 16 120.569 or s. 120.57 shall not be authorized by paragraph (a), 17 but shall be governed by the provisions of chapter 120. 18 (c) However, a nonprofit corporation or association 19 organized in whole or in part to promote conservation, to 20 protect the environment or other biological values, or to 21 preserve historical sites may petition to initiate a 22 proceeding under s. 120.569 or s. 120.57 with regard to an 23 agency action or a proposed agency action in any 24 administrative, licensing, or other proceedings described in 25 paragraph (a) without demonstrating that its substantial 26 interests have been or will be determined, if: 27 1. Such corporation or association was in existence at 28 least 1 year before the filing of the application to license 29 or permit an activity, conduct, or product which resulted in 30 the agency action or proposed agency action that is the 31 subject of the petition; 10 7:53 PM 05/02/01 s0910c1c-08b4b
SENATE AMENDMENT Bill No. CS for SB 910 Amendment No. ___ Barcode 330674 1 2.a. Such corporation or association has an office for 2 the transaction of its customary business or owns real 3 property, within the same county where the activity, conduct, 4 or product to be permitted or licensed is located, or 5 b. At least 25 members of the corporation or 6 association reside or own real property within the same county 7 where the activity, conduct, or product to be permitted or 8 licensed is located; and 9 3. Such corporation or association files a verified 10 pleading asserting that the activity, conduct, or product to 11 be licensed or permitted has or will have the effect of 12 impairing, polluting, or otherwise injuring the air, water, or 13 other natural resources of the state. 14 Section 6. This act shall take effect July 1, 2001. 15 16 17 ================ T I T L E A M E N D M E N T =============== 18 And the title is amended as follows: 19 Delete everything before the enacting clause 20 21 and insert: 22 A bill to be entitled 23 An act relating to administrative procedures; 24 amending s. 57.111, F.S.; increasing the 25 limitation on attorney's fees and costs; 26 amending s. 120.569, F.S.; revising 27 requirements for pleadings, motions, and other 28 papers filed under the Administrative Procedure 29 Act; providing for sanctions; amending s. 30 120.595, F.S.; redefining the term "improper 31 purpose" for determining an award of attorney's 11 7:53 PM 05/02/01 s0910c1c-08b4b
SENATE AMENDMENT Bill No. CS for SB 910 Amendment No. ___ Barcode 330674 1 fees; amending s. 373.114, F.S.; providing that 2 water management district orders resulting from 3 certain evidentiary hearings are not subject to 4 specified review; amending s. 403.412, F.S.; 5 revising requirements for initiating specified 6 proceedings under the Environmental Protection 7 Act; providing an effective date. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 12 7:53 PM 05/02/01 s0910c1c-08b4b