Senate Bill sb0910
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Florida Senate - 2001 SB 910
By Senator King
8-207B-01 See HB
1 A bill to be entitled
2 An act relating to administrative procedure;
3 amending s. 57.111, F.S.; redefining the term
4 "small business party"; increasing the
5 limitation on attorney's fees and costs;
6 amending s. 120.52, F.S.; redefining the term
7 "agency"; amending s. 120.569, F.S.; revising
8 requirements for pleadings, motions, and other
9 papers filed under the Administrative Procedure
10 Act; providing for sanctions; amending s.
11 120.574, F.S.; redesignating summary hearings
12 as expedited hearings; providing procedures for
13 expedited hearings; revising the status of an
14 administrative law judge's decision; providing
15 for recommended orders and final orders;
16 amending s. 120.595, F.S.; redefining the term
17 "improper purpose" for determining an award of
18 attorney's fees; amending s. 120.60, F.S.;
19 revising the process for the approval of
20 license applications and license renewals;
21 amending s. 120.68, F.S.; providing for costs,
22 damages, and attorney's fees under certain
23 circumstances; amending s. 373.114, F.S.;
24 providing that water management district orders
25 resulting from certain evidentiary hearings are
26 not subject to specified review; amending ss.
27 373.1501 and 403.088, F.S.; conforming
28 references; amending s. 403.412, F.S.;
29 restricting persons without substantial
30 interests from initiating specified proceedings
31 under the Environmental Protection Act;
1
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Florida Senate - 2001 SB 910
8-207B-01 See HB
1 amending s. 403.973, F.S.; conforming
2 references; revising conditions under which
3 expedited hearings apply; amending s. 408.7056,
4 F.S.; conforming references; amending ss.
5 120.57, 120.595, 120.81, 409.2564, 409.913,
6 501.608, 628.461, 628.4615, 633.161, and
7 766.207, F.S.; conforming cross-references;
8 providing an effective date.
9
10 Be It Enacted by the Legislature of the State of Florida:
11
12 Section 1. Paragraph (d) of subsection (3) and
13 paragraph (d) of subsection (4) of section 57.111, Florida
14 Statutes, are amended to read:
15 57.111 Civil actions and administrative proceedings
16 initiated by state agencies; attorneys' fees and costs.--
17 (3) As used in this section:
18 (d) The term "small business party" means:
19 1.a. A sole proprietor of an unincorporated business,
20 including a professional practice, whose principal office is
21 in this state, who is domiciled in this state, and whose
22 business or professional practice has, at the time the action
23 is initiated by a state agency, not more than 50 25 full-time
24 employees or a net worth of not more than $10 $2 million,
25 including both personal and business investments; or
26 b. A partnership or corporation, including a
27 professional practice, which has its principal office in this
28 state and has at the time the action is initiated by a state
29 agency not more than 50 25 full-time employees or a net worth
30 of not more than $10 $2 million; or
31
2
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1 2. Either small business party as defined in
2 subparagraph 1., without regard to the number of its employees
3 or its net worth, in any action under s. 72.011 or in any
4 administrative proceeding under that section to contest the
5 legality of any assessment of tax imposed for the sale or use
6 of services as provided in chapter 212, or interest thereon,
7 or penalty therefor.
8 (4)
9 (d) The court, or the administrative law judge in the
10 case of a proceeding under chapter 120, shall promptly conduct
11 an evidentiary hearing on the application for an award of
12 attorney's fees and shall issue a judgment, or a final order
13 in the case of an administrative law judge. The final order
14 of an administrative law judge is reviewable in accordance
15 with the provisions of s. 120.68. If the court affirms the
16 award of attorney's fees and costs in whole or in part, it
17 may, in its discretion, award additional attorney's fees and
18 costs for the appeal.
19 1. No award of attorney's fees and costs shall be made
20 in any case in which the state agency was a nominal party.
21 2. No award of attorney's fees and costs for an action
22 initiated by a state agency shall exceed $50,000 $15,000.
23 Section 2. Paragraph (b) of subsection (1) of section
24 120.52, Florida Statutes, is amended to read:
25 120.52 Definitions.--As used in this act:
26 (1) "Agency" means:
27 (b) Each:
28 1. State officer and state department, and each
29 departmental unit described in s. 20.04.
30 2. State authority, including a regional water supply
31 authority.
3
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Florida Senate - 2001 SB 910
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1 3. State board.
2 4. State commission, including the Commission on
3 Ethics and the Fish and Wildlife Conservation Commission when
4 acting pursuant to statutory authority derived from the
5 Legislature.
6 5. Regional planning agency.
7 6. Multicounty special district with a majority of its
8 governing board comprised of nonelected persons.
9 7. Educational units.
10 8. Entity described in chapters 163, 373, 380, and 582
11 and s. 186.504.
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 3. Subsection (2) of section 120.569, Florida
23 Statutes, is amended to read:
24 120.569 Decisions which affect substantial
25 interests.--
26 (2)(a) Except for any proceeding conducted as
27 prescribed in s. 120.56, a petition or request for a hearing
28 under this section shall be filed with the agency. If the
29 agency requests an administrative law judge from the division,
30 it shall so notify the division within 15 days after receipt
31 of the petition or request. A request for a hearing shall be
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1 granted or denied within 15 days after receipt. On the request
2 of any agency, the division shall assign an administrative law
3 judge with due regard to the expertise required for the
4 particular matter. The referring agency shall take no further
5 action with respect to a proceeding under s. 120.57(1), except
6 as a party litigant, as long as the division has jurisdiction
7 over the proceeding under s. 120.57(1). Any party may request
8 the disqualification of the administrative law judge by filing
9 an affidavit with the division prior to the taking of evidence
10 at a hearing, stating the grounds with particularity.
11 (b) All parties shall be afforded an opportunity for a
12 hearing after reasonable notice of not less than 14 days;
13 however, the 14-day notice requirement may be waived with the
14 consent of all parties. The notice shall include:
15 1. A statement of the time, place, and nature of the
16 hearing.
17 2. A statement of the legal authority and jurisdiction
18 under which the hearing is to be held.
19 (c) Unless otherwise provided by law, a petition or
20 request for hearing shall include those items required by the
21 uniform rules adopted pursuant to s. 120.54(5)(b)4. Upon the
22 receipt of a petition or request for hearing, the agency shall
23 carefully review the petition to determine if it contains all
24 of the required information. A petition shall be dismissed if
25 it is not in substantial compliance with these requirements or
26 it has been untimely filed. Dismissal of a petition shall, at
27 least once, be without prejudice to petitioner's filing a
28 timely amended petition curing the defect, unless it
29 conclusively appears from the face of the petition that the
30 defect cannot be cured. The agency shall promptly give
31 written notice to all parties of the action taken on the
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1 petition, shall state with particularity its reasons if the
2 petition is not granted, and shall state the deadline for
3 filing an amended petition if applicable.
4 (d) The agency may refer a petition to the division
5 for the assignment of an administrative law judge only if the
6 petition is in substantial compliance with the requirements of
7 paragraph (c).
8 (e) In any proceeding brought by a third party to
9 challenge a permit application brought under part IV of
10 chapter 373, after assignment of such petition to the
11 administrative law judge pursuant to paragraph (d), a
12 respondent may file a motion with the judge to show cause why
13 the permit should not be granted. All issues shall be framed
14 with sufficient particularity and the scope of anticipated
15 evidence to be presented at the final hearing shall be
16 presented. Upon receipt of such motion, the judge shall hold a
17 hearing to determine whether the issues are framed with
18 sufficient particularity and whether the scope of anticipated
19 evidence is sufficient to put the petitioner on notice as to
20 what specific elements of the permit application are at issue
21 under the applicable permitting standards and criteria. The
22 administrative law judge shall strive to narrow the issues and
23 shall enter an order that:
24 1. Delineates the specific issues sought to be
25 adjudicated based upon the hearing;
26 2. Determines that the issues are framed with
27 sufficient particularity and that the scope of anticipated
28 evidence is sufficient to put the respondent on notice as to
29 what specific elements of the permit application are at issue
30 under the applicable permitting standards and criteria; or
31
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1 3. Dismisses the petition if the issues are not framed
2 with sufficient particularity or if the scope of anticipated
3 evidence is not sufficient to put the petitioner on notice as
4 to what specific elements of the permit application are at
5 issue under the applicable permitting standards and criteria.
6
7 Dismissal of a petition shall, at least once, be without
8 prejudice to the third party petitioner's filing a timely
9 amended petition curing the defect, unless it conclusively
10 appears in the hearing that the defect cannot be cured.
11 (f)1. Every pleading, written motion, and other paper
12 filed in a proceeding must be signed by at least one attorney
13 or qualified representative of record in the attorney's or
14 qualified representative's individual name, or, if the party
15 is not represented by an attorney or qualified representative,
16 the pleading, written motion, or other paper must be signed by
17 the party. An unsigned paper shall be stricken unless omission
18 of the signature is corrected within 5 calendar days after
19 being called to the attention of the attorney, qualified
20 representative, or party.
21 2. By presenting a pleading, written motion, or other
22 paper, whether by signing, filing, submitting, or later
23 advocating, an attorney, qualified representative, or
24 unrepresented party is certifying that, to the best of the
25 person's knowledge, information, and belief, formed after an
26 inquiry reasonable under the circumstances:
27 a. The pleading, written motion, or other paper is not
28 being presented for any improper purpose, such as to harass or
29 to cause unnecessary delay or needless increase in the cost of
30 litigation;
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1 b. The claims, defenses, and other legal contentions
2 contained in the pleading, written motion, or other paper are
3 warranted by existing law or by a nonfrivolous argument for
4 the extension, modification, or reversal of existing law or
5 the establishment of new law;
6 c. The allegations and other factual contentions have
7 evidentiary support after a reasonable opportunity for further
8 investigation or discovery; and
9 d. The denials of factual contentions are warranted on
10 the evidence or, if specifically identified, are reasonably
11 based on a lack of information or belief.
12 3. If, after notice and a reasonable opportunity to
13 respond, the presiding officer determines that subparagraph 2.
14 has been violated, the presiding officer shall impose an
15 appropriate sanction against the person who signed the
16 pleading, written motion, or other paper, the represented
17 party, or both, which must include an order to pay the other
18 party or parties the amount of reasonable expenses incurred
19 because of the filing of the pleading, motion, or other paper,
20 including reasonable attorney's fees. However, this paragraph
21 does not authorize the award of sanctions against any person
22 for the act of commenting on or objecting to a draft permit
23 during an authorized period for public comment or at a public
24 hearing.
25 4. Sanctions under this paragraph may be initiated at
26 any time after the initiation of a proceeding either by motion
27 or on the presiding officer's own initiative. A motion shall
28 describe the specific conduct alleged in violation of
29 subparagraph 2. The motion shall be served upon the attorney
30 or qualified representative of a party or an unrepresented
31 party against whom such sanctions are sought and shall be
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1 filed with the presiding officer. However, such motion may be
2 acted upon by the presiding officer or called up for hearing
3 by the movant within 14 days after service of the motion or
4 such other period as the presiding officer may prescribe,
5 unless the challenged paper, claim, defense, contention,
6 allegation, or denial is withdrawn or appropriately corrected.
7 A presiding officer's own initiative to impose sanctions may
8 be undertaken only after entering an order describing the
9 specific conduct that appears to violate subparagraph 2. and
10 directing the attorney or qualified representative of a party
11 or the unrepresented party to show cause why subparagraph 2.
12 has not been violated. When imposing sanctions, the presiding
13 officer shall describe the conduct determined to constitute a
14 violation of subparagraph 2. and explain the basis for the
15 sanction imposed. All pleadings, motions, or other papers
16 filed in the proceeding must be signed by the party, the
17 party's attorney, or the party's qualified representative. The
18 signature constitutes a certificate that the person has read
19 the pleading, motion, or other paper and that, based upon
20 reasonable inquiry, it is not interposed for any improper
21 purposes, such as to harass or to cause unnecessary delay, or
22 for frivolous purpose or needless increase in the cost of
23 litigation. If a pleading, motion, or other paper is signed in
24 violation of these requirements, the presiding officer shall
25 impose upon the person who signed it, the represented party,
26 or both, an appropriate sanction, which may include an order
27 to pay the other party or parties the amount of reasonable
28 expenses incurred because of the filing of the pleading,
29 motion, or other paper, including a reasonable attorney's fee.
30 (g)(f) The presiding officer has the power to swear
31 witnesses and take their testimony under oath, to issue
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1 subpoenas, and to effect discovery on the written request of
2 any party by any means available to the courts and in the
3 manner provided in the Florida Rules of Civil Procedure,
4 including the imposition of sanctions, except contempt.
5 However, no presiding officer has the authority to issue any
6 subpoena or order directing discovery to any member or
7 employee of the Legislature when the subpoena or order
8 commands the production of documents or materials or compels
9 testimony relating to the legislative duties of the member or
10 employee. Any subpoena or order directing discovery directed
11 to a member or an employee of the Legislature shall show on
12 its face that the testimony sought does not relate to
13 legislative duties.
14 (h)(g) Irrelevant, immaterial, or unduly repetitious
15 evidence shall be excluded, but all other evidence of a type
16 commonly relied upon by reasonably prudent persons in the
17 conduct of their affairs shall be admissible, whether or not
18 such evidence would be admissible in a trial in the courts of
19 Florida. Any part of the evidence may be received in written
20 form, and all testimony of parties and witnesses shall be made
21 under oath.
22 (i)(h) Documentary evidence may be received in the
23 form of a copy or excerpt. Upon request, parties shall be
24 given an opportunity to compare the copy with the original, if
25 available.
26 (j)(i) When official recognition is requested, the
27 parties shall be notified and given an opportunity to examine
28 and contest the material.
29 (k)(j) A party shall be permitted to conduct
30 cross-examination when testimony is taken or documents are
31 made a part of the record.
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1 (l)(k)1. Any person subject to a subpoena may, before
2 compliance and on timely petition, request the presiding
3 officer having jurisdiction of the dispute to invalidate the
4 subpoena on the ground that it was not lawfully issued, is
5 unreasonably broad in scope, or requires the production of
6 irrelevant material.
7 2. A party may seek enforcement of a subpoena, order
8 directing discovery, or order imposing sanctions issued under
9 the authority of this chapter by filing a petition for
10 enforcement in the circuit court of the judicial circuit in
11 which the person failing to comply with the subpoena or order
12 resides. A failure to comply with an order of the court shall
13 result in a finding of contempt of court. However, no person
14 shall be in contempt while a subpoena is being challenged
15 under subparagraph 1. The court may award to the prevailing
16 party all or part of the costs and attorney's fees incurred in
17 obtaining the court order whenever the court determines that
18 such an award should be granted under the Florida Rules of
19 Civil Procedure.
20 3. Any public employee subpoenaed to appear at an
21 agency proceeding shall be entitled to per diem and travel
22 expenses at the same rate as that provided for state employees
23 under s. 112.061 if travel away from such public employee's
24 headquarters is required. All other witnesses appearing
25 pursuant to a subpoena shall be paid such fees and mileage for
26 their attendance as is provided in civil actions in circuit
27 courts of this state. In the case of a public employee, such
28 expenses shall be processed and paid in the manner provided
29 for agency employee travel expense reimbursement, and in the
30 case of a witness who is not a public employee, payment of
31 such fees and expenses shall accompany the subpoena.
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1 (m)(l) Unless the time period is waived or extended
2 with the consent of all parties, the final order in a
3 proceeding which affects substantial interests must be in
4 writing and include findings of fact, if any, and conclusions
5 of law separately stated, and it must be rendered within 90
6 days:
7 1. After the hearing is concluded, if conducted by the
8 agency;
9 2. After a recommended order is submitted to the
10 agency and mailed to all parties, if the hearing is conducted
11 by an administrative law judge; or
12 3. After the agency has received the written and oral
13 material it has authorized to be submitted, if there has been
14 no hearing.
15 (n)(m) Findings of fact, if set forth in a manner
16 which is no more than mere tracking of the statutory language,
17 must be accompanied by a concise and explicit statement of the
18 underlying facts of record which support the findings.
19 (o)(n) If an agency head finds that an immediate
20 danger to the public health, safety, or welfare requires an
21 immediate final order, it shall recite with particularity the
22 facts underlying such finding in the final order, which shall
23 be appealable or enjoinable from the date rendered.
24 Section 4. Section 120.574, Florida Statutes, is
25 amended to read:
26 120.574 Expedited Summary hearing.--
27 (1)(a) Within 5 business days following the division's
28 receipt of a petition or request for hearing, the division
29 shall issue and serve on all original parties an initial order
30 that assigns the case to a specific administrative law judge
31 and provides general information regarding practice and
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1 procedure before the division. The initial order shall also
2 contain a statement advising the original parties addressees
3 that an expedited a summary hearing is available, if the
4 affected agency agrees, upon the agreement of all parties
5 under subsection (2) and briefly describing the accelerated
6 expedited time sequences, limited discovery, and final order
7 provisions of the expedited summary procedure.
8 (b) Within 15 days after service of the initial order,
9 any party may file with the division a motion for expedited
10 summary hearing in accordance with subsection (2). If a
11 nonagency party files a motion for an expedited hearing and
12 the affected agency does not file a written objection within 7
13 days after the service of the motion, or if the affected
14 agency files a motion for an expedited hearing and the
15 original parties do not file a written objection within 7 days
16 after the service of the motion, the motion shall be granted
17 and an order shall be entered setting the hearing date, which
18 must commence within 30 days after the date the response
19 period to the motion expires. If the affected agency files a
20 motion for an expedited hearing and an original party files a
21 response within 7 days after service of that motion objecting
22 to the expedited hearing, the administrative law judge shall,
23 within 5 days after the filing of that response, enter an
24 order granting the motion for expedited hearing unless the
25 administrative law judge finds that any of the original
26 parties will be unduly prejudiced thereby. If all original
27 parties agree, in writing, to the summary proceeding, the
28 proceeding shall be conducted within 30 days of the agreement,
29 in accordance with the provisions of subsection (2).
30 (c) Intervenors in the proceeding shall be governed by
31 the decision of the administrative law judge original parties
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1 regarding whether the case will proceed in accordance with the
2 expedited summary hearing process and shall not have standing
3 to challenge that decision.
4 (d) If a motion for expedited summary hearing is not
5 filed within 15 days after service of the division's initial
6 order, the matter shall proceed in accordance with ss. 120.569
7 and 120.57.
8 (2) In any case to which this subsection is
9 applicable, the following procedures apply:
10 (a) Motions shall be limited to the following:
11 1. A motion in opposition to the petition.
12 2. A motion requesting discovery beyond the informal
13 exchange of documents and witness lists described in paragraph
14 (b). Upon a showing of necessity, additional discovery may be
15 permitted in the discretion of the administrative law judge,
16 but only if it can be completed not later than 5 days prior to
17 the final hearing.
18 3. A motion for continuance of the final hearing date.
19 4. A motion requesting a prehearing conference, or the
20 administrative law judge may require a prehearing conference,
21 for the purpose of identifying: the legal and factual issues
22 to be considered at the final hearing; the names and addresses
23 of witnesses who may be called to testify at the final
24 hearing; documentary evidence that will be offered at the
25 final hearing; the range of penalties that may be imposed upon
26 final hearing; and any other matter that the administrative
27 law judge determines would expedite resolution of the
28 proceeding. The prehearing conference may be held by
29 telephone conference call.
30 5. During or after any preliminary hearing or
31 conference, any party or the administrative law judge may
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1 suggest that the case is no longer appropriate for expedited
2 summary disposition. Following any argument requested by the
3 parties, the administrative law judge may enter an order
4 referring the case back to the formal adjudicatory process
5 described in s. 120.57(1), in which event the parties shall
6 proceed accordingly.
7 (b) Not later than 5 days prior to the final hearing,
8 the parties shall furnish to each other copies of documentary
9 evidence and lists of witnesses who may testify at the final
10 hearing.
11 (c) All parties shall have an opportunity to respond,
12 to present evidence and argument on all issues involved, to
13 conduct cross-examination and submit rebuttal evidence, and to
14 be represented by counsel or other qualified representative.
15 (d) The record in a case governed by this subsection
16 shall consist only of:
17 1. All notices, pleadings, motions, and intermediate
18 rulings.
19 2. Evidence received.
20 3. A statement of matters officially recognized.
21 4. Proffers of proof and objections and rulings
22 thereon.
23 5. Matters placed on the record after an ex parte
24 communication.
25 6. The written recommended order decision of the
26 administrative law judge presiding at the final hearing.
27 7. The official transcript of the final hearing.
28 (e) The agency shall accurately and completely
29 preserve all testimony in the proceeding and, upon request by
30 any party, shall make a full or partial transcript available
31 at no more than actual cost.
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1 (f) The recommended order decision of the
2 administrative law judge shall be rendered within 30 days
3 after the conclusion of the final hearing or the filing of the
4 transcript thereof, whichever is later. The administrative
5 law judge's recommended order decision, which shall be final
6 agency action subject to judicial review under s. 120.68,
7 shall include the following:
8 1. Findings of fact based exclusively on the evidence
9 of record and matters officially recognized.
10 2. Conclusions of law.
11 3. Imposition of a fine or penalty, if applicable.
12 4. Any other information required by law or rule to be
13 contained in a final order.
14 (g) The parties may file exceptions to the
15 administrative law judge's recommended order within 10 days
16 after its issuance, and responses may be filed within 5 days
17 after the exceptions. The agency shall issue the final order
18 within 30 days after the issuance of the administrative law
19 judge's recommended order.
20 Section 5. Paragraphs (c) and (e) of subsection (1) of
21 section 120.595, Florida Statutes, are amended to read:
22 120.595 Attorney's fees.--
23 (1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
24 120.57(1).--
25 (c) In proceedings pursuant to s. 120.57(1), and upon
26 motion, the administrative law judge shall determine whether
27 any party participated in the proceeding for an improper
28 purpose as defined by this subsection and s. 120.569(2)(e). In
29 making such determination, the administrative law judge shall
30 consider whether the nonprevailing adverse party has
31 participated in two or more other such proceedings involving
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1 the same prevailing party and the same project as an adverse
2 party and in which such two or more proceedings the
3 nonprevailing adverse party did not establish either the
4 factual or legal merits of its position, and shall consider
5 whether the factual or legal position asserted in the instant
6 proceeding would have been cognizable in the previous
7 proceedings. In such event, it shall be rebuttably presumed
8 that the nonprevailing adverse party participated in the
9 pending proceeding for an improper purpose.
10 (e) For the purpose of this subsection:
11 1. "Improper purpose" means participation in a
12 proceeding pursuant to s. 120.57(1) primarily to harass or to
13 cause unnecessary delay or for frivolous purpose or to
14 needlessly increase the cost of litigation, licensing, or
15 securing the approval of an activity.
16 2. "Costs" has the same meaning as the costs allowed
17 in civil actions in this state as provided in chapter 57.
18 3. "Nonprevailing adverse party" means a party that
19 has failed to have substantially changed the outcome of the
20 proposed or final agency action which is the subject of a
21 proceeding. In the event that a proceeding results in any
22 substantial modification or condition intended to resolve the
23 matters raised in a party's petition, it shall be determined
24 that the party having raised the issue addressed is not a
25 nonprevailing adverse party. The recommended order shall
26 state whether the change is substantial for purposes of this
27 subsection. In no event shall the term "nonprevailing party"
28 or "prevailing party" be deemed to include any party that has
29 intervened in a previously existing proceeding to support the
30 position of an agency.
31
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1 Section 6. Subsections (1) and (4) of section 120.60,
2 Florida Statutes, are amended to read:
3 120.60 Licensing.--
4 (1) Upon receipt of an application for a license, an
5 agency shall examine the application and, within 30 days after
6 such receipt, notify the applicant of any apparent errors or
7 omissions and request any additional information the agency is
8 permitted by law to require. An agency shall not deny a
9 license for failure to correct an error or omission or to
10 supply additional information unless the agency timely
11 notified the applicant within this 30-day period. An
12 application shall be considered complete upon receipt of all
13 requested information and correction of any error or omission
14 for which the applicant was timely notified or when the time
15 for such notification has expired. Every application for a
16 license shall be approved or denied within 90 days after
17 receipt of a completed application unless a shorter period of
18 time for agency action is provided by law. The 90-day time
19 period shall be tolled by the initiation of a proceeding under
20 ss. 120.569 and 120.57. Any An application for a license that
21 is not must be approved or denied within the 90-day or shorter
22 time period, within 15 days after the conclusion of a public
23 hearing held on the application, or within 45 days after the a
24 recommended order is submitted to the agency and the parties,
25 whichever is latest, is considered approved. Subject to the
26 satisfactory completion of an examination if required as a
27 prerequisite to licensure, the license shall be issued later.
28 The agency must approve any application for a license or for
29 an examination required for licensure if the agency has not
30 approved or denied the application within the time periods
31 prescribed by this subsection.
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1 (4) When a licensee has made timely and sufficient
2 application for the renewal of a license with reference to any
3 activity of a continuing nature which does not automatically
4 expire by statute, the existing license shall not expire until
5 the application for renewal has been finally acted upon by the
6 agency or, in case the application is denied or the terms of
7 the license are limited, until the last day for seeking review
8 of the agency order or a later date fixed by order of the
9 reviewing court.
10 Section 7. Subsection (11) is added to section 120.68,
11 Florida Statutes, to read:
12 120.68 Judicial review.--
13 (11) In those cases involving judicial review of an
14 agency decision resulting in the issuance of a license or
15 permit, the court shall order any nonprevailing third party
16 appellant to pay costs, damages, and attorney's fees.
17 Section 8. Subsection (1) of section 373.114, Florida
18 Statutes, is amended to read:
19 373.114 Land and Water Adjudicatory Commission; review
20 of district rules and orders; department review of district
21 rules.--
22 (1) Except as provided in subsection (2), the Governor
23 and Cabinet, sitting as the Land and Water Adjudicatory
24 Commission, have the exclusive authority to review any order
25 or rule of a water management district, other than a rule
26 relating to an internal procedure of the district or an order
27 resulting from an evidentiary hearing held under s. 120.569 or
28 s. 120.57, to ensure consistency with the provisions and
29 purposes of this chapter. Subsequent to the legislative
30 ratification of the delineation methodology pursuant to s.
31 373.421(1), this subsection also shall apply to an order of
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1 the department, or a local government exercising delegated
2 authority, pursuant to ss. 373.403-373.443, except an order
3 pertaining to activities or operations subject to conceptual
4 plan approval pursuant to chapter 378 or an order resulting
5 from an evidentiary hearing held under s. 120.569 or s.
6 120.57.
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 challenging
19 the validity of a rule instituted pursuant to chapter 120. In
20 order for the commission to accept a request for review
21 initiated by a party below, with regard to a specific order,
22 four members of the commission must determine on the basis of
23 the record below that the activity authorized by the order
24 would substantially affect natural resources of statewide or
25 regional significance. Review of an order may also be accepted
26 if four members of the commission determine that the order
27 raises issues of policy, statutory interpretation, or rule
28 interpretation that have regional or statewide significance
29 from the standpoint of agency precedent. The party requesting
30 the commission to review an order must allege with
31 particularity, and the commission must find, that:
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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
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1 actions are consistent with the provisions and purposes of
2 this chapter without modifying the order.
3 (d) In a review under this section of a construction
4 permit issued pursuant to a conceptual permit under part IV,
5 which conceptual permit is issued after July 1, 1993, a party
6 to the review may not raise an issue which was or could have
7 been raised in a review of the conceptual permit under this
8 section.
9 (e) A request for review under this section shall not
10 be a precondition to the seeking of judicial review pursuant
11 to s. 120.68 or the seeking of an administrative determination
12 of rule validity pursuant to s. 120.56.
13 (f) The Florida Land and Water Adjudicatory Commission
14 may adopt rules to set forth its procedures for reviewing an
15 order or rule of a water management district consistent with
16 the provisions of this section.
17 (g) For the purpose of this section, it shall be
18 presumed that activity authorized by an order will not affect
19 resources of statewide or regional significance if the
20 proposed activity:
21 1. Occupies an area less than 10 acres in size, and
22 2. Does not create impervious surfaces greater than 2
23 acres in size, and
24 3. Is not located within 550 feet of the shoreline of
25 a named body of water designated as Outstanding Florida
26 Waters, and
27 4. Does not adversely affect threatened or endangered
28 species.
29
30 This paragraph shall not operate to hold that any activity
31 that exceeds these limits is presumed to affect resources of
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1 statewide or regional significance. The determination of
2 whether an activity will substantially affect resources of
3 statewide or regional significance shall be made on a
4 case-by-case basis, based upon facts contained in the record
5 below.
6 Section 9. Subsection (8) of section 373.1501, Florida
7 Statutes, is amended to read:
8 373.1501 South Florida Water Management District as
9 local sponsor.--
10 (8) Final agency action with regard to any project
11 component subject to s. 373.026(8)(b) shall be taken by the
12 department. Actions taken by the district pursuant to
13 subsection (5) shall not be considered final agency action.
14 Any petition for formal proceedings filed pursuant to ss.
15 120.569 and 120.57 shall require a hearing under the expedited
16 summary hearing provisions of s. 120.574, which shall be
17 mandatory. The final hearing under this section shall be held
18 within 30 days after receipt of the petition by the Division
19 of Administrative Hearings.
20 Section 10. Paragraph (g) of subsection (2) of section
21 403.088, Florida Statutes, is amended to read:
22 403.088 Water pollution operation permits;
23 conditions.--
24 (2)
25 (g) The Legislature finds that the restoration of the
26 Everglades Protection Area, including the construction,
27 operation, and maintenance of stormwater treatment areas
28 (STAs), is in the public interest. Accordingly, whenever a
29 facility to be constructed, operated, or maintained in
30 accordance with s. 373.4592 is subjected to permitting
31 requirements pursuant to chapter 373 or this chapter, and the
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1 issuance of the initial permit for a new source, a new
2 discharger, or a recommencing discharger is subjected to a
3 request for hearing pursuant to s. 120.569, the administrative
4 law judge may, upon motion by the permittee, issue a
5 recommended order to the secretary, who, within 5 days, shall
6 issue an order authorizing the interim construction,
7 operation, or and maintenance of the facility if it complies
8 with all uncontested conditions of the proposed permit and all
9 other conditions recommended by the administrative law judge
10 during the period until the final agency action on the permit.
11 1. An order authorizing such interim construction,
12 operation, or and maintenance shall be granted if requested by
13 motion and no party opposes it.
14 2. If a party to the administrative hearing pursuant
15 to ss. 120.569 and 120.57 opposes the motion, the
16 administrative law judge shall issue a recommended order
17 granting the motion if the administrative law judge finds
18 that:
19 a. The facility is likely to receive the permit; and
20 b. The environment will not be irreparably harmed by
21 the construction, operation, or maintenance of the facility
22 pending final agency action on the permit.
23 3. Prior to granting a contested motion for interim
24 construction, operation, or maintenance of a facility
25 authorized by s. 373.4592, the administrative law judge shall
26 conduct a hearing using the expedited summary hearing process
27 defined in s. 120.574, which shall be mandatory for motions
28 made pursuant to this paragraph. Notwithstanding the
29 provisions of s. 120.574(1), expedited summary hearing
30 proceedings for these facilities shall begin within 30 days of
31 the motion made by the permittee. Within 15 days after of the
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1 conclusion of the expedited summary proceeding, the
2 administrative law judge shall issue a recommended order
3 either denying or approving interim construction, operation,
4 or maintenance of the facility, which shall be submitted to
5 the secretary, who shall within 5 days thereafter, enter an
6 order granting or denying interim construction, operation, or
7 maintenance of the facility. The order shall remain in effect
8 until final agency action is taken on the permit.
9 Section 11. Subsection (5) of section 403.412, Florida
10 Statutes, is amended to read:
11 403.412 Environmental Protection Act.--
12 (5) In any administrative, licensing, or other
13 proceedings authorized by law for the protection of the air,
14 water, or other natural resources of the state from pollution,
15 impairment, or destruction, the Department of Legal Affairs, a
16 political subdivision or municipality of the state, or a
17 citizen of the state shall have standing to intervene as a
18 party on the filing of a verified pleading asserting that the
19 activity, conduct, or product to be licensed or permitted has
20 or will have the effect of impairing, polluting, or otherwise
21 injuring the air, water, or other natural resources of the
22 state. However, a citizen of this state whose substantial
23 interests have not been determined by agency action may not
24 institute, initiate, petition, or request a proceeding under
25 s. 120.569 or s. 120.57. This subsection does not limit the
26 ability of a nonprofit corporation or association organized in
27 whole or in part to promote conservation, to protect the
28 environment or other biological values, or to preserve
29 historical sites to initiate, petition, or request a
30 proceeding under s. 120.569 or s. 120.57 upon asserting in a
31 verified petition that the activity, conduct, or product to be
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1 licensed or permitted has or will have the effect of
2 impairing, polluting, or otherwise injuring the air, water, or
3 other natural resources of the state. The verified petition
4 must also assert and be subject to subsequent proof that the
5 corporation or association itself has, or a substantial number
6 of its members have, substantial interests that will be
7 affected by the conduct, activity, or product to be licensed
8 or permitted. Such substantial interests include the use and
9 enjoyment of the air, water, or other natural resources of the
10 state which will be affected as a result of the issuance of a
11 license or permit.
12 Section 12. Subsections (8), (13), and (15) of section
13 403.973, Florida Statutes, are amended to read:
14 403.973 Expedited permitting; comprehensive plan
15 amendments.--
16 (8) At the option of the participating local
17 government, appeals of its final approval for a project may be
18 pursuant to the expedited summary hearing provisions of s.
19 120.574, pursuant to subsection (15), or pursuant to other
20 appellate processes available to the local government. The
21 local government's decision to enter into an expedited a
22 summary hearing must be made as provided in s. 120.574 or in
23 the memorandum of agreement.
24 (13) The applicant, the regional permit action team,
25 and participating local governments may agree to incorporate
26 into a single document the permits, licenses, and approvals
27 that are obtained through the expedited permit process. This
28 consolidated permit is subject to the expedited summary
29 hearing provisions set forth in subsection (15).
30 (15) The expedited hearing process in s. 120.574 must
31 be used with regard to challenges to state agency action in
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1 the expedited permitting process for projects processed under
2 this section. Notwithstanding s. 120.574, use of the expedited
3 hearing process does not require consent of the affected
4 agency or a determination by the administrative law judge as
5 to its propriety; however, the hearing schedule may be
6 extended by written agreement of all parties are subject to
7 the summary hearing provisions of s. 120.574, except that the
8 administrative law judge's decision, as provided in s.
9 120.574(2)(f), shall be in the form of a recommended order and
10 shall not constitute the final action of the state agency. In
11 those proceedings where the action of only one agency of the
12 state is challenged, the agency of the state shall issue the
13 final order within 10 working days of receipt of the
14 administrative law judge's recommended order. In those
15 proceedings where the actions of more than one agency of the
16 state are challenged, the Governor shall issue the final order
17 within 10 working days of receipt of the administrative law
18 judge's recommended order. The participating agencies of the
19 state may opt at the preliminary hearing conference to allow
20 the administrative law judge's decision to constitute the
21 final agency action. If a participating local government
22 agrees to participate in the expedited summary hearing
23 provisions of s. 120.574 for purposes of review of local
24 government comprehensive plan amendments, s. 163.3184(9) and
25 (10) apply.
26 Section 13. Subsection (14) of section 408.7056,
27 Florida Statutes, is amended to read:
28 408.7056 Statewide Provider and Subscriber Assistance
29 Program.--
30 (14) A proposed order issued by the agency or
31 department which only requires the managed care entity to take
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1 a specific action under subsection (7) is subject to an
2 expedited a summary hearing in accordance with s. 120.574,
3 unless all of the parties agree otherwise. If the managed care
4 entity does not prevail at the hearing, the managed care
5 entity must pay reasonable costs and attorney's fees of the
6 agency or the department incurred in that proceeding.
7 Section 14. Paragraph (d) of subsection (1) of section
8 120.57, Florida Statutes, is amended to read:
9 120.57 Additional procedures for particular cases.--
10 (1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS
11 INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--
12 (d) Notwithstanding s. 120.569(2)(h)(g), similar fact
13 evidence of other violations, wrongs, or acts is admissible
14 when relevant to prove a material fact in issue, such as proof
15 of motive, opportunity, intent, preparation, plan, knowledge,
16 identity, or absence of mistake or accident, but it is
17 inadmissible when the evidence is relevant solely to prove bad
18 character or propensity. When the state in an administrative
19 proceeding intends to offer evidence of other acts or offenses
20 under this paragraph, the state shall furnish to the party
21 whose substantial interests are being determined and whose
22 other acts or offenses will be the subject of such evidence,
23 no fewer than 10 days before commencement of the proceeding, a
24 written statement of the acts or offenses it intends to offer,
25 describing them and the evidence the state intends to offer
26 with particularity. Notice is not required for evidence of
27 acts or offenses which is used for impeachment or on rebuttal.
28 Section 15. Paragraph (c) of subsection (1) of section
29 120.595, Florida Statutes, is amended to read:
30 120.595 Attorney's fees.--
31
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1 (1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
2 120.57(1).--
3 (c) In proceedings pursuant to s. 120.57(1), and upon
4 motion, the administrative law judge shall determine whether
5 any party participated in the proceeding for an improper
6 purpose as defined by this subsection and s. 120.569(2)(f)(e).
7 In making such determination, the administrative law judge
8 shall consider whether the nonprevailing adverse party has
9 participated in two or more other such proceedings involving
10 the same prevailing party and the same project as an adverse
11 party and in which such two or more proceedings the
12 nonprevailing adverse party did not establish either the
13 factual or legal merits of its position, and shall consider
14 whether the factual or legal position asserted in the instant
15 proceeding would have been cognizable in the previous
16 proceedings. In such event, it shall be rebuttably presumed
17 that the nonprevailing adverse party participated in the
18 pending proceeding for an improper purpose.
19 Section 16. Subsection (4) of section 120.81, Florida
20 Statutes, is amended to read:
21 120.81 Exceptions and special requirements; general
22 areas.--
23 (4) REGULATION OF PROFESSIONS.--Notwithstanding s.
24 120.569(2)(h)(g), in a proceeding against a licensed
25 professional or in a proceeding for licensure of an applicant
26 for professional licensure which involves allegations of
27 sexual misconduct:
28 (a) The testimony of the victim of the sexual
29 misconduct need not be corroborated.
30
31
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1 (b) Specific instances of prior consensual sexual
2 activity between the victim of the sexual misconduct and any
3 person other than the offender is inadmissible, unless:
4 1. It is first established to the administrative law
5 judge in a proceeding in camera that the victim of the sexual
6 misconduct is mistaken as to the identity of the perpetrator
7 of the sexual misconduct; or
8 2. If consent by the victim of the sexual misconduct
9 is at issue and it is first established to the administrative
10 law judge in a proceeding in camera that such evidence tends
11 to establish a pattern of conduct or behavior on the part of
12 such victim which is so similar to the conduct or behavior in
13 the case that it is relevant to the issue of consent.
14 (c) Reputation evidence relating to the prior sexual
15 conduct of a victim of sexual misconduct is inadmissible.
16 Section 17. Paragraphs (b) and (c) of subsection (8)
17 of section 409.2564, Florida Statutes, are amended to read:
18 409.2564 Actions for support.--
19 (8) The director of the Title IV-D agency, or the
20 director's designee, is authorized to subpoena from any person
21 financial and other information necessary to establish,
22 modify, or enforce a child support order.
23 (b) Subpoenas issued by this or any other state's
24 Title IV-D agency may be challenged in accordance with s.
25 120.569(2)(l)(k)1. While a subpoena is being challenged, the
26 Title IV-D agency may not impose a fine as provided for under
27 paragraph (c) until the challenge is complete and the subpoena
28 has been found to be valid.
29 (c) The Title IV-D agency is authorized to impose a
30 fine for failure to comply with a subpoena. Failure to comply
31 with the subpoena, or to challenge the subpoena as provided in
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1 paragraph (b), within 15 days after service of the subpoena
2 may result in the agency taking the following actions:
3 1. Imposition of an administrative fine of not more
4 than $500.
5 2. Enforcement of the subpoena as provided in s.
6 120.569(2)(l)(k)2. When the subpoena is enforced pursuant to
7 s. 120.569(2)(l)(k)2., the court may award costs and fees to
8 the prevailing party in accordance with that section.
9 Section 18. Paragraph (d) of subsection (15) of
10 section 409.913, Florida Statutes, is amended to read:
11 409.913 Oversight of the integrity of the Medicaid
12 program.--The agency shall operate a program to oversee the
13 activities of Florida Medicaid recipients, and providers and
14 their representatives, to ensure that fraudulent and abusive
15 behavior and neglect of recipients occur to the minimum extent
16 possible, and to recover overpayments and impose sanctions as
17 appropriate.
18 (15) The agency may impose any of the following
19 sanctions on a provider or a person for any of the acts
20 described in subsection (14):
21 (d) Immediate suspension, if the agency has received
22 information of patient abuse or neglect or of any act
23 prohibited by s. 409.920. Upon suspension, the agency must
24 issue an immediate final order under s. 120.569(2)(o)(n).
25 Section 19. Subsection (3) of section 501.608, Florida
26 Statutes, is amended to read:
27 501.608 License or affidavit of exemption;
28 occupational license.--
29 (3) Failure to display a license or a copy of the
30 affidavit of exemption is sufficient grounds for the
31 department to issue an immediate cease and desist order, which
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1 shall act as an immediate final order under s.
2 120.569(2)(o)(n). The order may shall remain in effect until
3 the commercial telephone seller or a person claiming to be
4 exempt shows the authorities that he or she is licensed or
5 exempt. The department may order the business to cease
6 operations and shall order the phones to be shut off. Failure
7 of a salesperson to display a license may result in the
8 salesperson being summarily ordered by the department to leave
9 the office until he or she can produce a license for the
10 department.
11 Section 20. Paragraph (a) of subsection (5) of section
12 628.461, Florida Statutes, is amended to read:
13 628.461 Acquisition of controlling stock.--
14 (5)(a) The acquisition of voting securities shall be
15 deemed approved unless the department disapproves the proposed
16 acquisition within 90 days after the statement required by
17 subsection (1) has been filed. The department may on its own
18 initiate, or if requested to do so in writing by a
19 substantially affected party shall conduct, a proceeding to
20 consider the appropriateness of the proposed filing. The
21 90-day time period shall be tolled during the pendency of the
22 proceeding. Any written request for a proceeding must be
23 filed with the department within 10 days of the date notice of
24 the filing is given. During the pendency of the proceeding or
25 review period by the department, any person or affiliated
26 person complying with the filing requirements of this section
27 may proceed and take all steps necessary to conclude the
28 acquisition so long as the acquisition becoming final is
29 conditioned upon obtaining departmental approval. The
30 department shall, however, at any time that it finds an
31 immediate danger to the public health, safety, and welfare of
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1 the domestic policyholders exists, immediately order, pursuant
2 to s. 120.569(2)(o)(n), the proposed acquisition temporarily
3 disapproved and any further steps to conclude the acquisition
4 ceased.
5 Section 21. Paragraph (a) of subsection (6) of section
6 628.4615, Florida Statutes, is amended to read:
7 628.4615 Specialty insurers; acquisition of
8 controlling stock, ownership interest, assets, or control;
9 merger or consolidation.--
10 (6)(a) The acquisition application shall be reviewed
11 in accordance with chapter 120. The department may on its own
12 initiate, or, if requested to do so in writing by a
13 substantially affected person, shall conduct, a proceeding to
14 consider the appropriateness of the proposed filing. Time
15 periods for purposes of chapter 120 shall be tolled during the
16 pendency of the proceeding. Any written request for a
17 proceeding must be filed with the department within 10 days of
18 the date notice of the filing is given. During the pendency
19 of the proceeding or review period by the department, any
20 person or affiliated person complying with the filing
21 requirements of this section may proceed and take all steps
22 necessary to conclude the acquisition so long as the
23 acquisition becoming final is conditioned upon obtaining
24 departmental approval. The department shall, however, at any
25 time it finds an immediate danger to the public health,
26 safety, and welfare of the insureds exists, immediately order,
27 pursuant to s. 120.569(2)(o)(n), the proposed acquisition
28 disapproved and any further steps to conclude the acquisition
29 ceased.
30 Section 22. Paragraph (a) of subsection (2) of section
31 633.161, Florida Statutes, is amended to read:
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1 633.161 Cease and desist orders; orders to correct
2 hazardous conditions; orders to vacate; violation;
3 penalties.--
4 (2)(a) If, during the conduct of a firesafety
5 inspection authorized by ss. 633.081 and 633.085, it is
6 determined that a violation described in this section exists
7 which poses an immediate danger to the public health, safety,
8 or welfare, the State Fire Marshal may issue an order to
9 vacate the building in question, which order shall be
10 immediately effective and shall be an immediate final order
11 under s. 120.569(2)(o)(n). With respect to a facility under
12 the jurisdiction of a district school board or community
13 college board of trustees, the order to vacate shall be issued
14 jointly by the district superintendent or college president
15 and the State Fire Marshal.
16 Section 23. Subsection (2) of section 766.207, Florida
17 Statutes, is amended to read:
18 766.207 Voluntary binding arbitration of medical
19 negligence claims.--
20 (2) Upon the completion of presuit investigation with
21 preliminary reasonable grounds for a medical negligence claim
22 intact, the parties may elect to have damages determined by an
23 arbitration panel. Such election may be initiated by either
24 party by serving a request for voluntary binding arbitration
25 of damages within 90 days after service of the claimant's
26 notice of intent to initiate litigation upon the defendant.
27 The evidentiary standards for voluntary binding arbitration of
28 medical negligence claims shall be as provided in ss.
29 120.569(2)(h)(g) and 120.57(1)(c).
30 Section 24. This act shall take effect July 1, 2001.
31
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1 *****************************************
2 HOUSE SUMMARY
3
Redefines the term "small business party" for purposes of
4 the Florida Equal Access to Justice Act. Revises
requirements for pleadings, motions, and other papers
5 filed under the Administrative Procedure Act.
Redesignates summary hearings as expedited hearings under
6 s. 120.574, F.S., and provides procedures for conducting
those hearings. Provides for recommended orders and final
7 orders. Revises standards for awarding attorney's fees.
Revises the process for approval of license applications
8 and renewals. Eliminates review of specified water
management district orders resulting from certain
9 evidentiary hearings. Restricts persons whose substantial
interests have not been determined by agency action from
10 initiating proceedings under the Environmental Protection
Act. Revises conditions under which expedited hearings
11 apply.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
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