Senate Bill sb0280
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 280
By Senator Pruitt
27-325-02 See HB
1 A bill to be entitled
2 An act relating to administrative procedures;
3 amending s. 57.111, F.S.; increasing the
4 limitation on an award of attorney's fees and
5 costs in an action initiated by a state agency;
6 amending s. 120.54, F.S.; revising the Uniform
7 Rules of Procedure; amending s. 120.569, F.S.;
8 revising requirements for pleadings, motions,
9 and other papers filed under the Administrative
10 Procedure Act; amending s. 120.57, F.S.;
11 revising provisions relating to motions to
12 relinquish jurisdiction; amending s. 120.595,
13 F.S.; redefining the term "improper purpose"
14 for determining an award of attorney's fees;
15 amending s. 120.60, F.S.; revising provisions
16 relating to applications for licenses;
17 providing an effective date.
18
19 Be It Enacted by the Legislature of the State of Florida:
20
21 Section 1. Paragraph (d) of subsection (4) of section
22 57.111, Florida Statutes, is amended to read:
23 57.111 Civil actions and administrative proceedings
24 initiated by state agencies; attorneys' fees and costs.--
25 (4)
26 (d) The court, or the administrative law judge in the
27 case of a proceeding under chapter 120, shall promptly conduct
28 an evidentiary hearing on the application for an award of
29 attorney's fees and shall issue a judgment, or a final order
30 in the case of an administrative law judge. The final order
31 of an administrative law judge is reviewable in accordance
1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 280
27-325-02 See HB
1 with the provisions of s. 120.68. If the court affirms the
2 award of attorney's fees and costs in whole or in part, it
3 may, in its discretion, award additional attorney's fees and
4 costs for the appeal.
5 1. No award of attorney's fees and costs shall be made
6 in any case in which the state agency was a nominal party.
7 2. No award of attorney's fees and costs for an action
8 initiated by a state agency shall exceed $50,000 $15,000.
9 Section 2. Paragraph (b) of subsection (5) of section
10 120.54, Florida Statutes, is amended to read:
11 120.54 Rulemaking.--
12 (5) UNIFORM RULES.--
13 (b) The uniform rules of procedure adopted by the
14 commission pursuant to this subsection shall include, but are
15 not be limited to:
16 1. Uniform rules for the scheduling of public
17 meetings, hearings, and workshops.
18 2. Uniform rules for use by each state agency that
19 provide procedures for conducting public meetings, hearings,
20 and workshops, and for taking evidence, testimony, and
21 argument at such public meetings, hearings, and workshops, in
22 person and by means of communications media technology. The
23 rules shall provide that all evidence, testimony, and argument
24 presented shall be afforded equal consideration, regardless of
25 the method of communication. If a public meeting, hearing, or
26 workshop is to be conducted by means of communications media
27 technology, or if attendance may be provided by such means,
28 the notice shall so state. The notice for public meetings,
29 hearings, and workshops utilizing communications media
30 technology shall state how persons interested in attending may
31 do so and shall name locations, if any, where communications
2
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 280
27-325-02 See HB
1 media technology facilities will be available. Nothing in this
2 paragraph shall be construed to diminish the right to inspect
3 public records under chapter 119. Limiting points of access to
4 public meetings, hearings, and workshops subject to the
5 provisions of s. 286.011 to places not normally open to the
6 public shall be presumed to violate the right of access of the
7 public, and any official action taken under such circumstances
8 is void and of no effect. Other laws relating to public
9 meetings, hearings, and workshops, including penal and
10 remedial provisions, shall apply to public meetings, hearings,
11 and workshops conducted by means of communications media
12 technology, and shall be liberally construed in their
13 application to such public meetings, hearings, and workshops.
14 As used in this subparagraph, "communications media
15 technology" means the electronic transmission of printed
16 matter, audio, full-motion video, freeze-frame video,
17 compressed video, and digital video by any method available.
18 3. Uniform rules of procedure for the filing of notice
19 of protests and formal written protests.
20 4. Uniform rules of procedure for the filing of
21 petitions for administrative hearings pursuant to s. 120.569
22 or s. 120.57. Such rules shall require the petition to state
23 with particularity include:
24 a. The identification of the petitioner.
25 b. A statement of When and how the petitioner received
26 notice of the agency's action or proposed action.
27 c. An explanation of How the petitioner's substantial
28 interests are or will be affected by the action or proposed
29 action.
30 d. A statement of All material facts disputed by the
31 petitioner or a statement that there are no disputed facts.
3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 280
27-325-02 See HB
1 e. A statement of The ultimate facts alleged,
2 including a statement of the specific facts the petitioner
3 contends warrant reversal or modification of the agency's
4 proposed action.
5 f. A statement of The specific rules or statutes,
6 including a reference to the specific section, subsection,
7 paragraph, or subparagraph, as appropriate, which the
8 petitioner contends require reversal or modification of the
9 agency's proposed action.
10 g. A statement of The relief sought by the petitioner,
11 stating precisely the action petitioner wishes the agency to
12 take with respect to the proposed action.
13 5. Uniform rules of procedure for the filing and
14 prompt disposition of petitions for declaratory statements.
15 6. Provision of a method by which each agency head
16 shall provide a description of the agency's organization and
17 general course of its operations.
18 7. Uniform rules establishing procedures for granting
19 or denying petitions for variances and waivers pursuant to s.
20 120.542.
21 Section 3. Paragraph (e) of subsection (2) of section
22 120.569, Florida Statutes, is amended, and paragraph (o) is
23 added to subsection (2) of that section, to read:
24 120.569 Decisions which affect substantial
25 interests.--
26 (2)
27 (e)1. Every pleading, written motion, and other paper
28 filed in a proceeding must be signed by at least one attorney
29 or qualified representative of record in the attorney's or
30 qualified representative's individual name, or, if the party
31 is not represented by an attorney or qualified representative,
4
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 280
27-325-02 See HB
1 the pleading, written motion, or other paper must be signed by
2 the party. An unsigned paper shall be stricken unless omission
3 of the signature is corrected promptly after being called to
4 the attention of the attorney, qualified representative, or
5 party.
6 2. By presenting a pleading, written motion, or other
7 paper, whether by signing, filing, submitting, or later
8 advocating, an attorney, qualified representative, or
9 unrepresented party is certifying that, to the best of the
10 person's knowledge, information, and belief, formed after an
11 inquiry reasonable under the circumstances:
12 a. The pleading, written motion, or other paper is not
13 being presented for any improper purpose, such as to harass or
14 to cause unnecessary delay or needless increase in the cost of
15 litigation;
16 b. The claims, defenses, and other legal contentions
17 contained in the pleading, written motion, or other paper are
18 warranted by existing law or by a nonfrivolous argument for
19 the extension, modification, or reversal of existing law or
20 the establishment of new law;
21 c. The allegations and other factual contentions have
22 evidentiary support or, if specifically identified, are likely
23 to have evidentiary support after a reasonable opportunity for
24 further investigation or discovery; and
25 d. The denials of factual contentions are warranted on
26 the evidence or, if specifically identified, are reasonably
27 based on lack of information or belief.
28 3. If, after notice and reasonable opportunity to
29 respond, the presiding officer determines that subparagraph 2.
30 has been violated, the presiding officer may impose an
31 appropriate sanction against the person who signed it, the
5
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 280
27-325-02 See HB
1 represented party, or both, which may include an order to pay
2 the other party or parties the amount of reasonable expenses
3 incurred because of the filing of the pleading, motion, or
4 other paper, including reasonable attorney's fees. However:
5 a. Monetary sanctions may not be awarded against a
6 represented party for a violation of sub-subparagraph 2.b.
7 b. Monetary sanctions may not be awarded under this
8 paragraph based on a violation of discovery rules.
9 c. This paragraph does not authorize the award of
10 sanctions against any person who comments on or objects to a
11 draft permit during an authorized period for public comment or
12 at a public hearing.
13 4. Sanctions under this paragraph may be initiated at
14 any time after the initiation of a proceeding either by motion
15 or on the presiding officer's own initiative. A motion shall
16 describe the specific conduct alleged to violate subparagraph
17 2. The motion shall be served upon the attorney or qualified
18 representative of a party or an unrepresented party against
19 whom such sanctions are sought and shall be filed with the
20 presiding officer. However, such motion shall not be acted
21 upon by the presiding officer or called up for hearing by the
22 movant unless, within 14 days after service of the motion or
23 such other period as the presiding officer may prescribe, the
24 challenged paper, claim, defense, contention, allegation, or
25 denial is not withdrawn or appropriately corrected. A
26 presiding officer's own initiative to impose sanctions may be
27 undertaken only after entering an order describing the
28 specific conduct that appears to violate subparagraph 2. and
29 directing the attorney or qualified representative of a party
30 or the unrepresented party to show cause why subparagraph 2.
31 has not been violated. When imposing sanctions, the presiding
6
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 280
27-325-02 See HB
1 officer shall describe the conduct determined to constitute a
2 violation of subparagraph 2. and explain the basis for the
3 sanction imposed. All pleadings, motions, or other papers
4 filed in the proceeding must be signed by the party, the
5 party's attorney, or the party's qualified representative. The
6 signature constitutes a certificate that the person has read
7 the pleading, motion, or other paper and that, based upon
8 reasonable inquiry, it is not interposed for any improper
9 purposes, such as to harass or to cause unnecessary delay, or
10 for frivolous purpose or needless increase in the cost of
11 litigation. If a pleading, motion, or other paper is signed in
12 violation of these requirements, the presiding officer shall
13 impose upon the person who signed it, the represented party,
14 or both, an appropriate sanction, which may include an order
15 to pay the other party or parties the amount of reasonable
16 expenses incurred because of the filing of the pleading,
17 motion, or other paper, including a reasonable attorney's fee.
18 (o) On request of any party, the administrative law
19 judge shall enter an initial scheduling order to facilitate
20 the just, speedy, and inexpensive determination of the
21 proceeding. The initial scheduling order shall establish a
22 discovery period, including a deadline by which all discovery
23 shall be completed, and the date by which the parties shall
24 identify expert witnesses and their opinions. The initial
25 scheduling order also may require the parties to meet and file
26 a joint report by a date certain.
27 Section 4. Paragraph (i) of subsection (1) of section
28 120.57, Florida Statutes, is amended to read:
29 120.57 Additional procedures for particular cases.--
30 (1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS
31 INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--
7
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 280
27-325-02 See HB
1 (i) When, in any proceeding conducted pursuant to this
2 subsection, a dispute of material fact no longer exists, any
3 party may move the administrative law judge to relinquish
4 jurisdiction to the agency. An order relinquishing
5 jurisdiction shall be rendered if the administrative law judge
6 determines from In ruling on such a motion, the administrative
7 law judge may consider the pleadings, depositions, answers to
8 interrogatories, and admissions on file, together with
9 supporting and opposing affidavits, if any, that no genuine
10 issue as to any material fact exists. If the administrative
11 law judge enters an order relinquishing jurisdiction, the
12 agency may promptly conduct a proceeding pursuant to
13 subsection (2), if appropriate, but the parties may not raise
14 any issues of disputed fact that could have been raised before
15 the administrative law judge. An order entered by an
16 administrative law judge relinquishing jurisdiction to the
17 agency based upon a determination that no genuine dispute of
18 material fact exists, need not contain findings of fact,
19 conclusions of law, or a recommended disposition or penalty.
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
8
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 280
27-325-02 See HB
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
9
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 280
27-325-02 See HB
1 Section 6. Subsection (1) of section 120.60, Florida
2 Statutes, is 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. The license shall
26 be issued subject to the satisfactory completion of any
27 examination required as a prerequisite to licensure later. The
28 agency must approve any application for a license or for an
29 examination required for licensure if the agency has not
30 approved or denied the application within the time periods
31 prescribed by this subsection.
10
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2002 SB 280
27-325-02 See HB
1 Section 7. This act shall take effect upon becoming a
2 law.
3
4 *****************************************
5 LEGISLATIVE SUMMARY
6
Revises provisions of law governing administrative
7 procedures to:
1. Increase the limitation on an award of
8 attorney's fees and costs in an action initiated by a
state agency to $50,000.
9 2. Revise the Uniform Rules of Procedure.
3. Revise requirements for pleadings, motions, and
10 other papers filed under the Administrative Procedure
Act.
11 4. Revise provisions relating to motions to
relinquish jurisdiction.
12 5. Redefine the term "improper purpose" for
determining an award of attorney's fees.
13 6. Revise provisions relating to applications for
licenses.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
11
CODING: Words stricken are deletions; words underlined are additions.