SENATE AMENDMENT
Bill No. CS for SB 910
Amendment No. ___ Barcode 330674
CHAMBER ACTION
Senate House
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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
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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
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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
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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.
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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
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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
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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.
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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
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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.
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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.
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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;
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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.
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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
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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
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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.
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