HB 23
1	CHAMBER ACTION
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6	The Committee on Judiciary recommends the following:
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8	Committee Substitute
9	Remove the entire bill and insert:
10	A bill to be entitled
11	An act relating to administrative procedures; amending s.
12	120.52, F.S.; revising the definition of “invalid exercise
13	of delegated legislative authority"; amending s. 120.54,
14	F.S.; revising language with respect to uniform rules;
15	providing requirements with respect to the application of
16	alleged facts to specific rules or statutes; amending s.
17	120.56, F.S.; providing that hearings on rule challenges
18	shall be de novo in nature; changing the timeframe for
19	publishing proposed rules where agency statements are
20	challenged to moot such challenge; providing that
21	challenges to agency statements may be abated pending
22	rulemaking; providing that a determination that such rule
23	is invalid shall prohibit the agency from enforcing its
24	statement or certain similar statements; amending s.
25	120.569, F.S.; revising language with respect to decisions
26	which affect substantial interests; providing for initial
27	scheduling orders by the administrative law judge;
28	providing for a discovery period; amending s. 120.57,
29	F.S.; revising language with respect to additional
30	procedures applicable to hearings involving disputed
31	issues of material fact; providing that an order
32	relinquishing jurisdiction shall be rendered under certain
33	circumstances; amending s. 120.595, F.S.; redefining the
34	term “improper purpose” and conforming a cross reference;
35	providing for the award of reasonable attorney’s fees and
36	costs under certain circumstances; amending s. 120.60,
37	F.S.; revising language with respect to licensing;
38	providing that licenses considered approved as a condition
39	of time may still be subject to satisfactory completion of
40	an examination; amending s. 120.68, F.S.; revising
41	language with respect to judicial review; providing
42	additional grounds for certain petitions challenging an
43	agency rule as an invalid exercise of delegated
44	legislative authority; amending s. 57.105, F.S.; providing
45	administrative law judges authority to award attorney's
46	fees and damages in certain administrative proceedings;
47	amending s. 57.111, F.S.; removing a cap on attorney’s
48	fees in civil actions and administrative proceedings
49	initiated by state agencies; providing an effective date.
50
51	Be It Enacted by the Legislature of the State of Florida:
52
53	Section 1. Subsection (8) of section 120.52, Florida
54	Statutes, is amended to read:
55	120.52 Definitions.--As used in this act:
56	(8) "Invalid exercise of delegated legislative authority"
57	means action which goes beyond the powers, functions, and duties
58	delegated by the Legislature. A proposed or existing rule is an
59	invalid exercise of delegated legislative authority if an
60	administrative law judge determines by a preponderance of the
61	evidence thatany one of the following applies:
62	(a) The agency has materially failed to follow the
63	applicable rulemaking procedures or requirements set forth in
64	this chapter;
65	(b) The agency has exceeded its grant of rulemaking
66	authority, citation to which is required by s. 120.54(3)(a)1.;
67	(c) The rule enlarges, modifies, or contravenes the
68	specific provisions of law implemented, citation to which is
69	required by s. 120.54(3)(a)1.;
70	(d) The rule is vague, fails to establish adequate
71	standards for agency decisions, or vests unbridled discretion in
72	the agency;
73	(e) The rule is arbitrary or capricious, meaning, for
74	example, that it is not supported by fact or logic, is adopted
75	without thought or reason, or is irrational;
76	(f) The rule is not supported by competent andsubstantial
77	evidence, meaning that the factual basis for the rule is neither
78	sufficiently relevant and material such that a reasonable mind
79	would accept as adequate to support the conclusion reached nor
80	substantial enough to establish a substantial basis of fact from
81	which the ultimate facts at issue may be reasonably inferred; or
82	(g) The rule imposes regulatory costs on the regulated
83	person, county, or city which could be reduced by the adoption
84	of less costly alternatives that substantially accomplish the
85	statutory objectives.
86
87	A grant of rulemaking authority is necessary but not sufficient
88	to allow an agency to adopt a rule; a specific law to be
89	implemented is also required. An agency may adopt only rules
90	that implement or interpret the specific powers and duties
91	granted by the enabling statute. No agency shall have authority
92	to adopt a rule only because it is reasonably related to the
93	purpose of the enabling legislation and is not arbitrary and
94	capricious or is within the agency's class of powers and duties,
95	nor shall an agency have the authority to implement statutory
96	provisions setting forth general legislative intent or policy.
97	Statutory language granting rulemaking authority or generally
98	describing the powers and functions of an agency shall be
99	construed to extend no further than implementing or interpreting
100	the specific powers and duties conferred by the same statute.
101	Section 2. Paragraph (b) of subsection (5) of section
102	120.54, Florida Statutes, is amended to read:
103	120.54 Rulemaking.--
104	(5) UNIFORM RULES.--
105	(b) The uniform rules of procedure adopted by the
106	commission pursuant to this subsection shall include, but are
107	not belimited to:
108	1. Uniform rules for the scheduling of public meetings,
109	hearings, and workshops.
110	2. Uniform rules for use by each state agency that provide
111	procedures for conducting public meetings, hearings, and
112	workshops, and for taking evidence, testimony, and argument at
113	such public meetings, hearings, and workshops, in person and by
114	means of communications media technology. The rules shall
115	provide that all evidence, testimony, and argument presented
116	shall be afforded equal consideration, regardless of the method
117	of communication. If a public meeting, hearing, or workshop is
118	to be conducted by means of communications media technology, or
119	if attendance may be provided by such means, the notice shall so
120	state. The notice for public meetings, hearings, and workshops
121	utilizing communications media technology shall state how
122	persons interested in attending may do so and shall name
123	locations, if any, where communications media technology
124	facilities will be available. Nothing in this paragraph shall be
125	construed to diminish the right to inspect public records under
126	chapter 119. Limiting points of access to public meetings,
127	hearings, and workshops subject to the provisions of s. 286.011
128	to places not normally open to the public shall be presumed to
129	violate the right of access of the public, and any official
130	action taken under such circumstances is void and of no effect.
131	Other laws relating to public meetings, hearings, and workshops,
132	including penal and remedial provisions, shall apply to public
133	meetings, hearings, and workshops conducted by means of
134	communications media technology, and shall be liberally
135	construed in their application to such public meetings,
136	hearings, and workshops. As used in this subparagraph,
137	"communications media technology" means the electronic
138	transmission of printed matter, audio, full-motion video,
139	freeze-frame video, compressed video, and digital video by any
140	method available.
141	3. Uniform rules of procedure for the filing of notice of
142	protests and formal written protests.
143	4. Uniform rules of procedure for the filing of petitions
144	for administrative hearings pursuant to s. 120.569 or s. 120.57.
145	Such rules shall require the petition toinclude:
146	a. The identification of the petitioner.
147	b. A statement of when and how the petitioner received
148	notice of the agency's action or proposed action.
149	c. An explanation of how the petitioner's substantial
150	interests are or will be affected by the action or proposed
151	action.
152	d. A statement of all material facts disputed by the
153	petitioner or a statement that there are no disputed facts.
154	e. A statement of the ultimate facts alleged, including a
155	statement of the specific facts the petitioner contends warrant
156	reversal or modification of the agency's proposed action.
157	f. A statement of the specific rules or statutes thatthe
158	petitioner contends require reversal or modification of the
159	agency's proposed action and to explain how the alleged facts
160	relate to the specific rules or statutes.
161	g. A statement of the relief sought by the petitioner,
162	stating precisely the action petitioner wishes the agency to
163	take with respect to the proposed action.
164	5. Uniform rules of procedure for the filing and prompt
165	disposition of petitions for declaratory statements.
166	6. Provision of a method by which each agency head shall
167	provide a description of the agency's organization and general
168	course of its operations.
169	7. Uniform rules establishing procedures for granting or
170	denying petitions for variances and waivers pursuant to s.
171	120.542.
172	Section 3. Paragraph (e) of subsection (1) and paragraph
173	(e) of subsection (4) of section 120.56, Florida Statutes, are
174	amended to read:
175	120.56 Challenges to rules.--
176	(1) GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A
177	RULE OR A PROPOSED RULE.--
178	(e) Hearings held under this section shall be de novo in
179	nature and shall beconducted in the same manner as provided by
180	ss. 120.569 and 120.57, except that the administrative law
181	judge's order shall be final agency action. The petitioner and
182	the agency whose rule is challenged shall be adverse parties.
183	Other substantially affected persons may join the proceedings as
184	intervenors on appropriate terms which shall not unduly delay
185	the proceedings. Failure to proceed under this section shall not
186	constitute failure to exhaust administrative remedies.
187	(4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;
188	SPECIAL PROVISIONS.--
189	(e) Prior to a final hearing to determine whetherentry of
190	a final order thatall or part of an agency statement violates
191	s. 120.54(1)(a), if an agency publishes, pursuant to s.
192	120.54(3)(a), proposed rules which address the statement, then
193	for purposes of this subsection, a presumption is created that
194	the agency is actingand proceedsexpeditiously and in good
195	faith to adopt rules which address the statement, andthe agency
196	shall be permitted to rely upon the statement or a substantially
197	similar statement as a basis for agency action if the statement
198	meets the requirements of s. 120.57(1)(e). If an agency fails to
199	successfullyadopt rules which address the statement within 180
200	days after publishing proposed rules, for purposes of this
201	subsection, a presumption is created that the agency is not
202	acting expeditiously and in good faith to adopt rules. If the
203	agency's proposed rules are challenged pursuant to subsection
204	(2), the 180-day period for adoption of rules is tolled until a
205	final order is entered in that proceeding. Upon request, the
206	administrative law judge may place in abeyance challenges
207	brought under this subsection pending the outcome of rulemaking
208	and the outcome of any proceedings involving challenges to the
209	proposed rules pursuant to s. 120.56(2). If the proposed rules
210	addressing the challenged statement are determined to be
211	invalid, the agency must immediately discontinue reliance on the
212	statement and any substantially similar statement.
213	Section 4. Paragraph (o) is added to subsection (2) of
214	section 120.569, Florida Statutes, to read:
215	120.569 Decisions which affect substantial interests.--
216	(2)
217	(o) On the request of any party, the administrative law
218	judge shall enter an initial scheduling order to facilitate the
219	just, speedy, and inexpensive determination of the proceeding.
220	The initial scheduling order shall establish a discovery period,
221	including a deadline by which all discovery shall be completed,
222	and the date by which the parties shall identify expert
223	witnesses and their opinions. The initial scheduling order also
224	may require the parties to meet and file a joint report by a
225	date certain.
226	Section 5. Paragraphs (e), (i), and (l) of subsection (1)
227	of section 120.57, Florida Statutes, are amended to read:
228	120.57 Additional procedures for particular cases.--
229	(1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING
230	DISPUTED ISSUES OF MATERIAL FACT.--
231	(e)1. Any agency action that determines the substantial
232	interests of a party and that is based on an unadopted rule is
233	subject to de novo review by an administrative law judge.
234	2. The agency action shall not be presumed valid or
235	invalid. The agency must demonstrate that the unadopted rule:
236	a. Is within the powers, functions, and duties delegated
237	by the Legislature or, if the agency is operating pursuant to
238	authority derived from the State Constitution, is within that
239	authority;
240	b. Does not enlarge, modify, or contravene the specific
241	provisions of law implemented;
242	c. Is not vague, establishes adequate standards for agency
243	decisions, or does not vest unbridled discretion in the agency;
244	d. Is not arbitrary or capricious, meaning, for example,
245	it is not supported by fact or logic, is adopted without thought
246	or reason, or is irrational;
247	e. Is not being applied to the substantially affected
248	party without due notice;
249	f. Is supported by competent and substantial evidence,
250	meaning that the factual basis for the rule is sufficiently
251	relevant and material such that a reasonable mind would accept
252	as adequate to support the conclusion reached and substantial
253	enough to establish a substantial basis of fact from which the
254	ultimate facts at issue may be reasonably inferred; and
255	g. Does not impose excessive regulatory costs on the
256	regulated person, county, or city.
257	3. The recommended and final orders in any proceeding
258	shall be governed by the provisions of paragraphs (k) and (l),
259	except that the administrative law judge's determination
260	regarding the unadopted rule shall not be rejected by the agency
261	unless the agency first determines from a review of the complete
262	record, and states with particularity in the order, that such
263	determination is clearly erroneous or does not comply with
264	essential requirements of law. In any proceeding for review
265	under s. 120.68, if the court finds that the agency's rejection
266	of the determination regarding the unadopted rule does not
267	comport with the provisions of this subparagraph, the agency
268	action shall be set aside and the court shall award to the
269	prevailing party the reasonable costs and a reasonable
270	attorney's fee for the initial proceeding and the proceeding for
271	review.
272	(i) When, in any proceeding conducted pursuant to this
273	subsection, a dispute of material fact no longer exists, any
274	party may move the administrative law judge to relinquish
275	jurisdiction to the agency. An order relinquishing jurisdiction
276	shall be rendered if the administrative law judge determines
277	fromIn ruling on such a motion, the administrative law judge
278	may considerthe pleadings, depositions, answers to
279	interrogatories, and admissions on file, together with
280	supporting and opposing affidavits, if any, that no genuine
281	issue as to any material fact exists. If the administrative law
282	judge enters an order relinquishing jurisdiction, the agency may
283	promptly conduct a proceeding pursuant to subsection (2), if
284	appropriate, but the parties may not raise any issues of
285	disputed fact that could have been raised before the
286	administrative law judge. An order entered by an administrative
287	law judge relinquishing jurisdiction to the agency based upon a
288	determination that no genuine dispute of material fact exists,
289	need not contain findings of fact, conclusions of law, or a
290	recommended disposition or penalty.
291	(l) The agency may adopt the recommended order as the
292	final order of the agency. The agency in its final order may
293	reject or modify the conclusions of law over which it has
294	substantive jurisdictionand interpretation of administrative
295	rules over which it has substantive jurisdiction. When rejecting
296	or modifying such conclusion of law or interpretation of
297	administrative rule, the agency must state with particularity
298	its reasons for rejecting or modifying such conclusion of law or
299	interpretation of administrative rule and must make a finding
300	that its substituted conclusion of law or interpretation of
301	administrative rule is as or more reasonable than that which was
302	rejected or modified. Rejection or modification of conclusions
303	of law may not form the basis for rejection or modification of
304	findings of fact. The agency may not reject or modify the
305	findings of fact unless the agency first determines from a
306	review of the entire record, and states with particularity in
307	the order, that the findings of fact were not based upon
308	competent substantial evidence or that the proceedings on which
309	the findings were based did not comply with essential
310	requirements of law. The agency may accept the recommended
311	penalty in a recommended order, but may not reduce or increase
312	it without a review of the complete record and without stating
313	with particularity its reasons therefor in the order, by citing
314	to the record in justifying the action.
315	Section 6. Paragraphs (c) and (e) of subsection (1) and
316	subsection (5) of section 120.595, Florida Statutes, are amended
317	to read:
318	120.595 Attorney's fees.--
319	(1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
320	120.57(1).--
321	(c) In proceedings pursuant to s. 120.57(1), and upon
322	motion, the administrative law judge shall determine whether any
323	party participated in the proceeding for an improper purpose as
324	defined by this subsection and s. 120.569(2)(e). In making such
325	determination, the administrative law judge shall consider
326	whether the nonprevailing adverse party has participated in two
327	or more other such proceedings involving the same prevailing
328	party and the same project as an adverse party and in which such
329	two or more proceedings the nonprevailing adverse party did not
330	establish either the factual or legal merits of its position,
331	and shall consider whether the factual or legal position
332	asserted in the instant proceeding would have been cognizable in
333	the previous proceedings. In such event, it shall be rebuttably
334	presumed that the nonprevailing adverse party participated in
335	the pending proceeding for an improper purpose.
336	(e) For the purpose of this subsection:
337	1. "Improper purpose" means participation in a proceeding
338	pursuant to s. 120.57(1) primarily to harass or to cause
339	unnecessary delay or for frivolous purpose or to needlessly
340	increase the cost of litigation, licensing,or securing the
341	approval of an activity.
342	2. "Costs" has the same meaning as the costs allowed in
343	civil actions in this state as provided in chapter 57.
344	3. "Nonprevailing adverse party" means a party that has
345	failed to have substantially changed the outcome of the proposed
346	or final agency action which is the subject of a proceeding. In
347	the event that a proceeding results in any substantial
348	modification or condition intended to resolve the matters raised
349	in a party's petition, it shall be determined that the party
350	having raised the issue addressed is not a nonprevailing adverse
351	party. The recommended order shall state whether the change is
352	substantial for purposes of this subsection. In no event shall
353	the term "nonprevailing party" or "prevailing party" be deemed
354	to include any party that has intervened in a previously
355	existing proceeding to support the position of an agency.
356	(5) APPEALS.--When there is an appeal, the court in its
357	discretion may award reasonable attorney's fees and reasonable
358	costs to the prevailing party if the court finds that the appeal
359	was frivolous, meritless, or an abuse of the appellate process,
360	or that the agency action which precipitated the appeal was a
361	gross abuse of the agency's discretion. Upon review of agency
362	action that precipitates an appeal, if the court finds that the
363	agency improperly rejected or modified findings of fact in a
364	recommended order, the court shall award reasonable attorney's
365	fees and reasonable costs to a prevailing appellant for the
366	administrative proceeding and the appellate proceeding. If the
367	court finds that the agency improperly rejected or modified a
368	conclusion of law or an interpretation of an administrative rule
369	over which it does not have substantive jurisdiction, the court
370	shall award reasonable attorney’s fees and reasonable costs to a
371	prevailing appellant for the administrative proceeding and the
372	appellate proceeding.
373	Section 7. Subsection (1) of section 120.60, Florida
374	Statutes, is amended to read:
375	120.60 Licensing.--
376	(1) Upon receipt of an application for a license, an
377	agency shall examine the application and, within 30 days after
378	such receipt, notify the applicant of any apparent errors or
379	omissions and request any additional information the agency is
380	permitted by law to require. An agency shall not deny a license
381	for failure to correct an error or omission or to supply
382	additional information unless the agency timely notified the
383	applicant within this 30-day period. An application shall be
384	considered complete upon receipt of all requested information
385	and correction of any error or omission for which the applicant
386	was timely notified or when the time for such notification has
387	expired. Every application for a license shall be approved or
388	denied within 90 days after receipt of a completed application
389	unless a shorter period of time for agency action is provided by
390	law. The 90-day time period shall be tolled by the initiation of
391	a proceeding under ss. 120.569 and 120.57. AnyAnapplication
392	for a license that is notmust beapproved or denied within the
393	90-day or shorter time period, within 15 days after the
394	conclusion of a public hearing held on the application, or
395	within 45 days after a recommended order is submitted to the
396	agency and the parties, whichever action and timeframe is latest
397	and applicable, is considered approved unless the recommended
398	order recommends that the agency deny the license. Subject to
399	the satisfactory completion of an examination if required as a
400	prerequisite to licensure, any license that is considered
401	approved shall be issued and may include such reasonable
402	conditions as are authorized by lawlater. The agency must
403	approve any application for a license or for an examination
404	required for licensure if the agency has not approved or denied
405	the application within the time periods prescribed by this
406	subsection.
407	Section 8. Subsection (9) of section 120.68, Florida
408	Statutes, is amended to read:
409	120.68 Judicial review.--
410	(9) No petition challenging an agency rule as an invalid
411	exercise of delegated legislative authority shall be instituted
412	pursuant to this section, except to review an order entered
413	pursuant to a proceeding under s. 120.56 or an agency’s findings
414	of immediate danger, necessity, and procedural fairness
415	prerequisite to the adoption of an emergency rule pursuant to s.
416	120.54(4), unless the sole issue presented by the petition is
417	the constitutionality of a rule and there are no disputed issues
418	of fact.
419	Section 9. Subsections (5) and (6) of section 57.105,
420	Florida Statutes, are renumbered as subsections (6) and (7),
421	respectively, and a new subsection (5) is added to said section
422	to read:
423	57.105 Attorney's fee; sanctions for raising unsupported
424	claims or defenses; service of motions; damages for delay of
425	litigation.--
426	(5) In administrative proceedings under chapter 120, an
427	administrative law judge shall award a reasonable attorney’s fee
428	and damages against the losing party and the losing party’s
429	attorney or qualified representative in the same manner and upon
430	the same basis as provided in subsections (1)-(4).
431	Section 10. Paragraph (d) of subsection (4) of section
432	57.111, Florida Statutes, is amended to read:
433	57.111 Civil actions and administrative proceedings
434	initiated by state agencies; attorneys' fees and costs.--
435	(4)
436	(d) The court, or the administrative law judge in the case
437	of a proceeding under chapter 120, shall promptly conduct an
438	evidentiary hearing on the application for an award of
439	attorney's fees and shall issue a judgment, or a final order in
440	the case of an administrative law judge. The final order of an
441	administrative law judge is reviewable in accordance with the
442	provisions of s. 120.68. If the court affirms the award of
443	attorney's fees and costs in whole or in part, it may, in its
444	discretion, award additional attorney's fees and costs for the
445	appeal.
446	1.No award of attorney's fees and costs shall be made in
447	any case in which the state agency was a nominal party.
448	2. No award of attorney's fees and costs for an action
449	initiated by a state agency shall exceed $15,000.
450	Section 11. This act shall take effect upon becoming a
451	law.