HB 0023
1	CHAMBER ACTION
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6	The Committee on State Administration 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; providing for burden and
19	standard of proof; changing the timeframe for publishing
20	proposed rules where agency statements are challenged to
21	moot such challenge; providing that challenges to agency
22	statements may be abated pending rulemaking; providing
23	that a determination that such rule is an invalid exercise
24	of delegated legislative authority shall prohibit the
25	agency from enforcing its statement or certain similar
26	statements; amending s. 120.569, F.S.; revising language
27	with respect to decisions which affect substantial
28	interests; providing for initial scheduling orders by the
29	administrative law judge; providing for a discovery
30	period; amending s. 120.57, F.S.; revising language with
31	respect to additional procedures applicable to hearings
32	involving disputed issues of material fact; providing that
33	an order relinquishing jurisdiction shall be rendered
34	under certain circumstances; providing circumstances which
35	excuse an agency from ruling on an exception to a
36	recommended order; limiting the authority of agencies to
37	reject or modify conclusions of law and interpretations of
38	administrative rules in recommended orders; amending s.
39	120.595, F.S.; redefining the term “improper purpose” and
40	conforming a cross reference; providing for the award of
41	reasonable attorney’s fees and costs under certain
42	circumstances; providing for nonexclusivity; amending s.
43	120.60, F.S.; revising language with respect to licensing;
44	providing that licenses considered approved as a condition
45	of time may still be subject to satisfactory completion of
46	an examination; requiring written notice of intent to rely
47	on a default license; amending s. 120.68, F.S.; revising
48	language with respect to judicial review; providing
49	additional grounds for certain petitions challenging an
50	agency rule as an invalid exercise of delegated
51	legislative authority; amending s. 57.105, F.S.; providing
52	administrative law judges authority to award attorney's
53	fees and damages in certain administrative proceedings;
54	providing for appeal; amending s. 57.111, F.S.; increasing
55	the cap on attorney’s fees in civil actions and
56	administrative proceedings initiated by state agencies;
57	providing an effective date.
58
59	Be It Enacted by the Legislature of the State of Florida:
60
61	Section 1. Paragraphs (e), (f), and (g) of subsection (8)
62	of section 120.52, Florida Statutes, are amended to read:
63	120.52 Definitions.--As used in this act:
64	(8) "Invalid exercise of delegated legislative authority"
65	means action which goes beyond the powers, functions, and duties
66	delegated by the Legislature. A proposed or existing rule is an
67	invalid exercise of delegated legislative authority if any one
68	of the following applies:
69	(e) The rule is arbitrary or capricious. A rule is
70	arbitrary if it is not supported by logic or the necessary
71	facts; a rule is capricious if it is adopted without thought or
72	reason or is irrational; or
73	(f) The rule is not supported by competent substantial
74	evidence; or
75	(f)(g)The rule imposes regulatory costs on the regulated
76	person, county, or city which could be reduced by the adoption
77	of less costly alternatives that substantially accomplish the
78	statutory objectives.
79
80	A grant of rulemaking authority is necessary but not sufficient
81	to allow an agency to adopt a rule; a specific law to be
82	implemented is also required. An agency may adopt only rules
83	that implement or interpret the specific powers and duties
84	granted by the enabling statute. No agency shall have authority
85	to adopt a rule only because it is reasonably related to the
86	purpose of the enabling legislation and is not arbitrary and
87	capricious or is within the agency's class of powers and duties,
88	nor shall an agency have the authority to implement statutory
89	provisions setting forth general legislative intent or policy.
90	Statutory language granting rulemaking authority or generally
91	describing the powers and functions of an agency shall be
92	construed to extend no further than implementing or interpreting
93	the specific powers and duties conferred by the same statute.
94	Section 2. Paragraph (b) of subsection (5) of section
95	120.54, Florida Statutes, is amended to read:
96	120.54 Rulemaking.--
97	(5) UNIFORM RULES.--
98	(b) The uniform rules of procedure adopted by the
99	commission pursuant to this subsection shall include, but are
100	not belimited to:
101	1. Uniform rules for the scheduling of public meetings,
102	hearings, and workshops.
103	2. Uniform rules for use by each state agency that provide
104	procedures for conducting public meetings, hearings, and
105	workshops, and for taking evidence, testimony, and argument at
106	such public meetings, hearings, and workshops, in person and by
107	means of communications media technology. The rules shall
108	provide that all evidence, testimony, and argument presented
109	shall be afforded equal consideration, regardless of the method
110	of communication. If a public meeting, hearing, or workshop is
111	to be conducted by means of communications media technology, or
112	if attendance may be provided by such means, the notice shall so
113	state. The notice for public meetings, hearings, and workshops
114	utilizing communications media technology shall state how
115	persons interested in attending may do so and shall name
116	locations, if any, where communications media technology
117	facilities will be available. Nothing in this paragraph shall be
118	construed to diminish the right to inspect public records under
119	chapter 119. Limiting points of access to public meetings,
120	hearings, and workshops subject to the provisions of s. 286.011
121	to places not normally open to the public shall be presumed to
122	violate the right of access of the public, and any official
123	action taken under such circumstances is void and of no effect.
124	Other laws relating to public meetings, hearings, and workshops,
125	including penal and remedial provisions, shall apply to public
126	meetings, hearings, and workshops conducted by means of
127	communications media technology, and shall be liberally
128	construed in their application to such public meetings,
129	hearings, and workshops. As used in this subparagraph,
130	"communications media technology" means the electronic
131	transmission of printed matter, audio, full-motion video,
132	freeze-frame video, compressed video, and digital video by any
133	method available.
134	3. Uniform rules of procedure for the filing of notice of
135	protests and formal written protests.
136	4. Uniform rules of procedure for the filing of petitions
137	for administrative hearings pursuant to s. 120.569 or s. 120.57.
138	Such rules shall require the petition toinclude:
139	a. The identification of the petitioner.
140	b. A statement of when and how the petitioner received
141	notice of the agency's action or proposed action.
142	c. An explanation of how the petitioner's substantial
143	interests are or will be affected by the action or proposed
144	action.
145	d. A statement of all material facts disputed by the
146	petitioner or a statement that there are no disputed facts.
147	e. A statement of the ultimate facts alleged, including a
148	statement of the specific facts the petitioner contends warrant
149	reversal or modification of the agency's proposed action.
150	f. A statement of the specific rules or statutes thatthe
151	petitioner contends require reversal or modification of the
152	agency's proposed action and an explanation of how the alleged
153	facts relate to the specific rules or statutes.
154	g. A statement of the relief sought by the petitioner,
155	stating precisely the action petitioner wishes the agency to
156	take with respect to the proposed action.
157	5. Uniform rules of procedure for the filing and prompt
158	disposition of petitions for declaratory statements.
159	6. Provision of a method by which each agency head shall
160	provide a description of the agency's organization and general
161	course of its operations.
162	7. Uniform rules establishing procedures for granting or
163	denying petitions for variances and waivers pursuant to s.
164	120.542.
165	Section 3. Paragraph (e) of subsection (1), paragraph (a)
166	of subsection (3), and paragraph (e) of subsection (4) of
167	section 120.56, Florida Statutes, are amended to read:
168	120.56 Challenges to rules.--
169	(1) GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A
170	RULE OR A PROPOSED RULE.--
171	(e) Hearings held under this section shall be de novo in
172	nature. The standard of proof shall be the preponderance of the
173	evidence. Hearings shall beconducted in the same manner as
174	provided by ss. 120.569 and 120.57, except that the
175	administrative law judge's order shall be final agency action.
176	The petitioner and the agency whose rule is challenged shall be
177	adverse parties. Other substantially affected persons may join
178	the proceedings as intervenors on appropriate terms which shall
179	not unduly delay the proceedings. Failure to proceed under this
180	section shall not constitute failure to exhaust administrative
181	remedies.
182	(3) CHALLENGING EXISTING RULES; SPECIAL PROVISIONS.--
183	(a) A substantially affected person may seek an
184	administrative determination of the invalidity of an existing
185	rule at any time during the existence of the rule. The
186	petitioner has a burden of proving by a preponderance of the
187	evidence that the existing rule is an invalid exercise of
188	delegated legislative authority as to the objections raised.
189	(4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;
190	SPECIAL PROVISIONS.--
191	(e)1. If, prior to a final hearing to determine whether
192	all or part of any agency statement violates s. 120.54(1)(a), an
193	agency publishes, pursuant to s. 120.54(3)(a), proposed rules
194	that address the statement, then, for purposes of this section,
195	a presumption is created that the agency is acting expeditiously
196	and in good faith to adopt rules that address the statement, and
197	the agency shall be permitted to rely upon the statement or a
198	substantially similar statement as a basis for agency action if
199	the statement meets the requirements of s. 120.57(1)(e).
200	2. If, prior to the final hearing to determine whether all
201	or part of an agency statement violates s. 120.54(1)(a), an
202	agency publishes a notice of rule development, pursuant to s.
203	120.54(2), or certifies that such a notice has been transmitted
204	to the Florida Administrative Weekly for publication, then such
205	publication shall constitute good cause for the granting of a
206	stay of the proceedings and a continuance of the final hearing
207	for 30 days. If the agency publishes proposed rules within this
208	30-day period or any extension of that period granted by an
209	administrative law judge upon showing of good cause, then the
210	administrative law judge shall place the case in abeyance
211	pending the outcome of rulemaking and any proceedings involving
212	challenges to proposed rules pursuant to subsection (2).
213	3. If, following the commencement of the final hearing and
214	prior to entry of a final order that all or part of an agency
215	statement violates s. 120.54(1)(a), ifan agency publishes,
216	pursuant to s. 120.54(3)(a), proposed rules thatwhichaddress
217	the statement and proceeds expeditiously and in good faith to
218	adopt rules thatwhichaddress the statement, the agency shall
219	be permitted to rely upon the statement or a substantially
220	similar statement as a basis for agency action if the statement
221	meets the requirements of s. 120.57(1)(e).
222	4. If an agency fails to adopt rules thatwhichaddress
223	the statement within 180 days after publishing proposed rules,
224	for purposes of this subsection, a presumption is created that
225	the agency is not acting expeditiously and in good faith to
226	adopt rules. If the agency's proposed rules are challenged
227	pursuant to subsection (2), the 180-day period for adoption of
228	rules is tolled until a final order is entered in that
229	proceeding.
230	5. If the proposed rules addressing the challenged
231	statement are determined to be an invalid exercise of delegated
232	legislative authority as defined in s. 120.52(8)(b)-(g), the
233	agency must immediately discontinue reliance on the statement
234	and any substantially similar statement until the rules
235	addressing the subject are properly adopted.
236	Section 4. Paragraph (o) is added to subsection (2) of
237	section 120.569, Florida Statutes, to read:
238	120.569 Decisions which affect substantial interests.--
239	(2)
240	(o) On the request of any party, the administrative law
241	judge shall enter an initial scheduling order to facilitate the
242	just, speedy, and inexpensive determination of the proceeding.
243	The initial scheduling order shall establish a discovery period,
244	including a deadline by which all discovery shall be completed,
245	and the date by which the parties shall identify expert
246	witnesses and their opinions. The initial scheduling order also
247	may require the parties to meet and file a joint report by a
248	date certain.
249	Section 5. Paragraphs (e), (i), and (k) of subsection (1)
250	of section 120.57, Florida Statutes, are amended to read:
251	120.57 Additional procedures for particular cases.--
252	(1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING
253	DISPUTED ISSUES OF MATERIAL FACT.--
254	(e)1. Any agency action that determines the substantial
255	interests of a party and that is based on an unadopted rule is
256	subject to de novo review by an administrative law judge.
257	2. The agency action shall not be presumed valid or
258	invalid. The agency must demonstrate that the unadopted rule:
259	a. Is within the powers, functions, and duties delegated
260	by the Legislature or, if the agency is operating pursuant to
261	authority derived from the State Constitution, is within that
262	authority;
263	b. Does not enlarge, modify, or contravene the specific
264	provisions of law implemented;
265	c. Is not vague, establishes adequate standards for agency
266	decisions, or does not vest unbridled discretion in the agency;
267	d. Is not arbitrary or capricious. A rule is arbitrary if
268	it is not supported by logic or the necessary facts; a rule is
269	capricious if it is adopted without thought or reason or is
270	irrational;
271	e. Is not being applied to the substantially affected
272	party without due notice; and
273	f. Is supported by competent and substantial evidence; and
274	f.g.Does not impose excessive regulatory costs on the
275	regulated person, county, or city.
276	3. The recommended and final orders in any proceeding
277	shall be governed by the provisions of paragraphs (k) and (l),
278	except that the administrative law judge's determination
279	regarding the unadopted rule shall not be rejected by the agency
280	unless the agency first determines from a review of the complete
281	record, and states with particularity in the order, that such
282	determination is clearly erroneous or does not comply with
283	essential requirements of law. In any proceeding for review
284	under s. 120.68, if the court finds that the agency's rejection
285	of the determination regarding the unadopted rule does not
286	comport with the provisions of this subparagraph, the agency
287	action shall be set aside and the court shall award to the
288	prevailing party the reasonable costs and a reasonable
289	attorney's fee for the initial proceeding and the proceeding for
290	review.
291	(i) When, in any proceeding conducted pursuant to this
292	subsection, a dispute of material fact no longer exists, any
293	party may move the administrative law judge to relinquish
294	jurisdiction to the agency. An order relinquishing jurisdiction
295	shall be rendered if the administrative law judge determines
296	fromIn ruling on such a motion, the administrative law judge
297	may considerthe pleadings, depositions, answers to
298	interrogatories, and admissions on file, together with
299	supporting and opposing affidavits, if any, that no genuine
300	issue as to any material fact exists. If the administrative law
301	judge enters an order relinquishing jurisdiction, the agency may
302	promptly conduct a proceeding pursuant to subsection (2), if
303	appropriate, but the parties may not raise any issues of
304	disputed fact that could have been raised before the
305	administrative law judge. An order entered by an administrative
306	law judge relinquishing jurisdiction to the agency based upon a
307	determination that no genuine dispute of material fact exists,
308	need not contain findings of fact, conclusions of law, or a
309	recommended disposition or penalty.
310	(k) The presiding officer shall complete and submit to the
311	agency and all parties a recommended order consisting of
312	findings of fact, conclusions of law, and recommended
313	disposition or penalty, if applicable, and any other information
314	required by law to be contained in the final order. All
315	proceedings conducted pursuant to this subsection shall be de
316	novo. The agency shall allow each party 15 days in which to
317	submit written exceptions to the recommended order. An agency
318	need not rule on an exception that does not clearly identify the
319	disputed portion of the recommended order by page number or
320	paragraph, that does not identify the legal basis for the
321	exception, or that does not include appropriate and specific
322	citations to the record.
323	Section 6. Paragraphs (c) and (e) of subsection (1) of
324	section 120.595, Florida Statutes, are amended, and subsection
325	(6) is added to said section, to read:
326	120.595 Attorney's fees.--
327	(1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
328	120.57(1).--
329	(c) In proceedings pursuant to s. 120.57(1), and upon
330	motion, the administrative law judge shall determine whether any
331	party participated in the proceeding for an improper purpose as
332	defined by this subsection and s. 120.569(2)(e). In making such
333	determination, the administrative law judge shall consider
334	whether the nonprevailing adverse party has participated in two
335	or more other such proceedings involving the same prevailing
336	party and the same project as an adverse party and in which such
337	two or more proceedings the nonprevailing adverse party did not
338	establish either the factual or legal merits of its position,
339	and shall consider whether the factual or legal position
340	asserted in the instant proceeding would have been cognizable in
341	the previous proceedings. In such event, it shall be rebuttably
342	presumed that the nonprevailing adverse party participated in
343	the pending proceeding for an improper purpose.
344	(e) For the purpose of this subsection:
345	1. "Improper purpose" means participation in a proceeding
346	pursuant to s. 120.57(1) primarily to harass or to cause
347	unnecessary delay or for frivolous purpose or to needlessly
348	increase the cost of litigation, licensing,or securing the
349	approval of an activity.
350	2. "Costs" has the same meaning as the costs allowed in
351	civil actions in this state as provided in chapter 57.
352	3. "Nonprevailing adverse party" means a party that has
353	failed to have substantially changed the outcome of the proposed
354	or final agency action which is the subject of a proceeding. In
355	the event that a proceeding results in any substantial
356	modification or condition intended to resolve the matters raised
357	in a party's petition, it shall be determined that the party
358	having raised the issue addressed is not a nonprevailing adverse
359	party. The recommended order shall state whether the change is
360	substantial for purposes of this subsection. In no event shall
361	the term "nonprevailing party" or "prevailing party" be deemed
362	to include any party that has intervened in a previously
363	existing proceeding to support the position of an agency.
364	(6) OTHER SECTIONS NOT AFFECTED.--Other provisions,
365	including ss. 57.105 and 57.111, authorize the award of
366	attorney’s fees and costs in administrative proceedings. Nothing
367	in this section shall affect the availability of attorney’s fees
368	and costs as provided in those sections.
369	Section 7. Subsection (1) of section 120.60, Florida
370	Statutes, is amended to read:
371	120.60 Licensing.--
372	(1) Upon receipt of an application for a license, an
373	agency shall examine the application and, within 30 days after
374	such receipt, notify the applicant of any apparent errors or
375	omissions and request any additional information the agency is
376	permitted by law to require. An agency shall not deny a license
377	for failure to correct an error or omission or to supply
378	additional information unless the agency timely notified the
379	applicant within this 30-day period. An application shall be
380	considered complete upon receipt of all requested information
381	and correction of any error or omission for which the applicant
382	was timely notified or when the time for such notification has
383	expired. Every application for a license shall be approved or
384	denied within 90 days after receipt of a completed application
385	unless a shorter period of time for agency action is provided by
386	law. The 90-day time period shall be tolled by the initiation of
387	a proceeding under ss. 120.569 and 120.57. AnyAnapplication
388	for a license that is notmust beapproved or denied within the
389	90-day or shorter time period, within 15 days after the
390	conclusion of a public hearing held on the application, or
391	within 45 days after a recommended order is submitted to the
392	agency and the parties, whichever action or timeframe is latest
393	and applicable, is considered approved unless the recommended
394	order recommends that the agency deny the license. Subject to
395	the satisfactory completion of an examination if required as a
396	prerequisite to licensure, any license that is considered
397	approved shall be issued and may include such reasonable
398	conditions as are authorized by law. Any applicant for licensure
399	seeking to claim licensure by default under this subsection
400	shall notify the agency clerk of the licensing agency, in
401	writing, of the intent to rely upon the default license
402	provision of this subsection, and shall not take any action
403	based upon the default license until after receipt of such
404	notice by the agency clerklater. The agency must approve any
405	application for a license or for an examination required for
406	licensure if the agency has not approved or denied the
407	application within the time periods prescribed by this
408	subsection.
409	Section 8. Subsection (9) of section 120.68, Florida
410	Statutes, is amended to read:
411	120.68 Judicial review.--
412	(9) No petition challenging an agency rule as an invalid
413	exercise of delegated legislative authority shall be instituted
414	pursuant to this section, except to review an order entered
415	pursuant to a proceeding under s. 120.56 or an agency’s findings
416	of immediate danger, necessity, and procedural fairness
417	prerequisite to the adoption of an emergency rule pursuant to s.
418	120.54(4), unless the sole issue presented by the petition is
419	the constitutionality of a rule and there are no disputed issues
420	of fact.
421	Section 9. Subsections (5) and (6) of section 57.105,
422	Florida Statutes, are renumbered as subsections (6) and (7),
423	respectively, and a new subsection (5) is added to said section
424	to read:
425	57.105 Attorney's fee; sanctions for raising unsupported
426	claims or defenses; service of motions; damages for delay of
427	litigation.--
428	(5) In administrative proceedings under chapter 120, an
429	administrative law judge shall award a reasonable attorney’s fee
430	and damages to the prevailing party to be paid to the prevailing
431	party in equal amounts by the losing party and the losing
432	party’s attorney or qualified representative in the same manner
433	and upon the same basis as provided in subsections (1)-(4). Such
434	award shall be a final order subject to judicial review pursuant
435	to s. 120.68. If the losing party is an agency as defined in s.
436	120.52(1), the award to the prevailing party shall be against
437	and paid by the agency.
438	Section 10. Paragraph (d) of subsection (4) of section
439	57.111, Florida Statutes, is amended to read:
440	57.111 Civil actions and administrative proceedings
441	initiated by state agencies; attorneys' fees and costs.--
442	(4)
443	(d) The court, or the administrative law judge in the case
444	of a proceeding under chapter 120, shall promptly conduct an
445	evidentiary hearing on the application for an award of
446	attorney's fees and shall issue a judgment, or a final order in
447	the case of an administrative law judge. The final order of an
448	administrative law judge is reviewable in accordance with the
449	provisions of s. 120.68. If the court affirms the award of
450	attorney's fees and costs in whole or in part, it may, in its
451	discretion, award additional attorney's fees and costs for the
452	appeal.
453	1. No award of attorney's fees and costs shall be made in
454	any case in which the state agency was a nominal party.
455	2. No award of attorney's fees and costs for an action
456	initiated by a state agency shall exceed $50,000$15,000.
457	Section 11. This act shall take effect upon becoming a
458	law.