Florida Senate - 2007 COMMITTEE AMENDMENT
Bill No. SB 1592
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CHAMBER ACTION
Senate House
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11 The Committee on Judiciary (Gaetz) recommended the following
12 amendment:
13
14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
16
17 and insert:
18 Section 1. This act may be cited as the "Open
19 Government Act."
20 Section 2. Present subsections (18) and (19) of
21 section 120.52, Florida Statutes, are renumbered as
22 subsections (19) and (20), respectively, and a new subsection
23 (18) is added to that section to read:
24 120.52 Definitions.--As used in this act:
25 (18) "Unadopted rule" means an agency statement that
26 meets the definition of "rule" but has not been adopted
27 pursuant to the requirements of s. 120.54.
28 Section 3. Paragraphs (c) and (e) of subsection (3)
29 and subsection (7) of section 120.54, Florida Statutes, are
30 amended to read:
31 120.54 Rulemaking.--
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1 (3) ADOPTION PROCEDURES.--
2 (c) Hearings.--
3 1. If the intended action concerns any rule other than
4 one relating exclusively to procedure or practice, the agency
5 shall, on the request of any affected person received within
6 21 days after the date of publication of the notice of
7 intended agency action, give affected persons an opportunity
8 to present evidence and argument on all issues under
9 consideration. The agency may schedule a public hearing on the
10 rule and, if requested by any affected person, shall schedule
11 a public hearing on the rule. If the agency head is a board or
12 other collegial body, other than one comprised of the Governor
13 and Cabinet, the board or other collegial body shall conduct
14 the requested public hearing itself and may not delegate this
15 responsibility without the consent of the persons requesting
16 the public hearing. Any material pertinent to the issues under
17 consideration submitted to the agency within 21 days after the
18 date of publication of the notice or submitted at a public
19 hearing shall be considered by the agency and made a part of
20 the record of the rulemaking proceeding.
21 2. Rulemaking proceedings shall be governed solely by
22 the provisions of this section unless a person timely asserts
23 that the person's substantial interests will be affected in
24 the proceeding and affirmatively demonstrates to the agency
25 that the proceeding does not provide adequate opportunity to
26 protect those interests. If the agency determines that the
27 rulemaking proceeding is not adequate to protect the person's
28 interests, it shall suspend the rulemaking proceeding and
29 convene a separate proceeding under the provisions of ss.
30 120.569 and 120.57. Similarly situated persons may be
31 requested to join and participate in the separate proceeding.
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1 Upon conclusion of the separate proceeding, the rulemaking
2 proceeding shall be resumed.
3 (e) Filing for final adoption; effective date.--
4 1. If the adopting agency is required to publish its
5 rules in the Florida Administrative Code, it shall file with
6 the Department of State three certified copies of the rule it
7 proposes to adopt, a summary of the rule, a summary of any
8 hearings held on the rule, and a detailed written statement of
9 the facts and circumstances justifying the rule. Agencies not
10 required to publish their rules in the Florida Administrative
11 Code shall file one certified copy of the proposed rule, and
12 the other material required by this subparagraph, in the
13 office of the agency head, and such rules shall be open to the
14 public.
15 2. A rule may not be filed for adoption less than 28
16 days or more than 90 days after the notice required by
17 paragraph (a), until 21 days after the notice of change
18 required by paragraph (d), until 14 days after the final
19 public hearing, until 21 days after preparation of a statement
20 of estimated regulatory costs required under s. 120.541 has
21 been provided to all persons who submitted a lower cost
22 regulatory alternative and made available to the public, or
23 until the administrative law judge has rendered a decision
24 under s. 120.56(2), whichever applies. When a required notice
25 of change is published prior to the expiration of the time to
26 file the rule for adoption, the period during which a rule
27 must be filed for adoption is extended to 45 days after the
28 date of publication. If notice of a public hearing is
29 published prior to the expiration of the time to file the rule
30 for adoption, the period during which a rule must be filed for
31 adoption is extended to 45 days after adjournment of the final
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1 hearing on the rule, 21 days after receipt of all material
2 authorized to be submitted at the hearing, or 21 days after
3 receipt of the transcript, if one is made, whichever is
4 latest. The term "public hearing" includes any public meeting
5 held by any agency at which the rule is considered. If a
6 petition for an administrative determination under s.
7 120.56(2) is filed, the period during which a rule must be
8 filed for adoption is extended to 60 days after the
9 administrative law judge files the final order with the clerk
10 or until 60 days after subsequent judicial review is complete.
11 3. At the time a rule is filed, the agency shall
12 certify that the time limitations prescribed by this paragraph
13 have been complied with, that all statutory rulemaking
14 requirements have been met, and that there is no
15 administrative determination pending on the rule.
16 4. At the time a rule is filed, the committee shall
17 certify whether the agency has responded in writing to all
18 material and timely written comments or written inquiries made
19 on behalf of the committee. The department shall reject any
20 rule not filed within the prescribed time limits; that does
21 not satisfy all statutory rulemaking requirements; upon which
22 an agency has not responded in writing to all material and
23 timely written inquiries or written comments; upon which an
24 administrative determination is pending; or which does not
25 include a statement of estimated regulatory costs, if
26 required.
27 5. If a rule has not been adopted within the time
28 limits imposed by this paragraph or has not been adopted in
29 compliance with all statutory rulemaking requirements, the
30 agency proposing the rule shall withdraw the rule and give
31 notice of its action in the next available issue of the
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1 Florida Administrative Weekly.
2 6. The proposed rule shall be adopted on being filed
3 with the Department of State and become effective 20 days
4 after being filed, on a later date specified in the rule, or
5 on a date required by statute. Rules not required to be filed
6 with the Department of State shall become effective when
7 adopted by the agency head or on a later date specified by
8 rule or statute. If the committee notifies an agency that an
9 objection to a rule is being considered, the agency may
10 postpone the adoption of the rule to accommodate review of the
11 rule by the committee. When an agency postpones adoption of a
12 rule to accommodate review by the committee, the 90-day period
13 for filing the rule is tolled until the committee notifies the
14 agency that it has completed its review of the rule.
15
16 For the purposes of this paragraph, the term "administrative
17 determination" does not include subsequent judicial review.
18 (7) PETITION TO INITIATE RULEMAKING.--
19 (a) Any person regulated by an agency or having
20 substantial interest in an agency rule may petition an agency
21 to adopt, amend, or repeal a rule or to provide the minimum
22 public information required by this chapter. The petition
23 shall specify the proposed rule and action requested. Not
24 later than 30 calendar days following the date of filing a
25 petition, the agency shall initiate rulemaking proceedings
26 under this chapter, otherwise comply with the requested
27 action, or deny the petition with a written statement of its
28 reasons for the denial.
29 (b) If the petition filed under this subsection is
30 directed to an existing rule which the agency has not adopted
31 by the rulemaking procedures or requirements set forth in this
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1 chapter, the agency shall, not later than 30 days following
2 the date of filing a petition, initiate rulemaking, or provide
3 notice in the Florida Administrative Weekly that the agency
4 will hold a public hearing on the petition within 30 days
5 after publication of the notice. The purpose of the public
6 hearing is to consider the comments of the public directed to
7 the agency rule which has not been adopted by the rulemaking
8 procedures or requirements of this chapter, its scope and
9 application, and to consider whether the public interest is
10 served adequately by the application of the rule on a
11 case-by-case basis, as contrasted with its adoption by the
12 rulemaking procedures or requirements set forth in this
13 chapter.
14 (c) Within 30 days following the public hearing
15 provided for by paragraph (b), if the agency does not initiate
16 rulemaking or otherwise comply with the requested action, the
17 agency shall publish in the Florida Administrative Weekly a
18 statement of its reasons for not initiating rulemaking or
19 otherwise complying with the requested action, and of any
20 changes it will make in the scope or application of the
21 unadopted rule. The agency shall file the statement with the
22 committee. The committee shall forward a copy of the
23 statement to the substantive committee with primary oversight
24 jurisdiction of the agency in each house of the Legislature.
25 The committee or the committee with primary oversight
26 jurisdiction may hold a hearing directed to the statement of
27 the agency. The committee holding the hearing may recommend
28 to the Legislature the introduction of legislation making the
29 rule a statutory standard or limiting or otherwise modifying
30 the authority of the agency.
31 Section 4. Section 120.545, Florida Statutes, is
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1 amended to read:
2 120.545 Committee review of agency rules.--
3 (1) As a legislative check on legislatively created
4 authority, the committee shall examine each proposed rule,
5 except for those proposed rules exempted by s. 120.81(1)(e)
6 and (2), and its accompanying material, and each emergency
7 rule, and may examine any existing rule, for the purpose of
8 determining whether:
9 (a) The rule is an invalid exercise of delegated
10 legislative authority.
11 (b) The statutory authority for the rule has been
12 repealed.
13 (c) The rule reiterates or paraphrases statutory
14 material.
15 (d) The rule is in proper form.
16 (e) The notice given prior to its adoption was
17 sufficient to give adequate notice of the purpose and effect
18 of the rule.
19 (f) The rule is consistent with expressed legislative
20 intent pertaining to the specific provisions of law which the
21 rule implements.
22 (g) The rule is necessary to accomplish the apparent
23 or expressed objectives of the specific provision of law which
24 the rule implements.
25 (h) The rule is a reasonable implementation of the law
26 as it affects the convenience of the general public or persons
27 particularly affected by the rule.
28 (i) The rule could be made less complex or more easily
29 comprehensible to the general public.
30 (j) The rule's statement of estimated regulatory costs
31 complies with the requirements of s. 120.541 and the rule does
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1 not impose regulatory costs on the regulated person, county,
2 or city which could be reduced by the adoption of less costly
3 alternatives that substantially accomplish the statutory
4 objectives.
5 (k) The rule will require additional appropriations.
6 (l) If the rule is an emergency rule, there exists an
7 emergency justifying the adoption promulgation of such rule,
8 the agency is within has exceeded the scope of its statutory
9 authority, and the rule was adopted promulgated in compliance
10 with the requirements and limitations of s. 120.54(4).
11 (2) The committee may request from an agency such
12 information as is reasonably necessary for examination of a
13 rule as required by subsection (1) or for examination of an
14 unadopted agency statement. The committee shall consult with
15 legislative standing committees having with jurisdiction over
16 the subject areas. If the committee objects to an emergency
17 rule or a proposed or existing rule, it shall, within 5 days
18 after of the objection, certify that fact to the agency whose
19 rule has been examined and include with the certification a
20 statement detailing its objections with particularity. The
21 committee shall notify the Speaker of the House of
22 Representatives and the President of the Senate of any
23 objection to an agency rule concurrent with certification of
24 that fact to the agency. Such notice shall include a copy of
25 the rule and the statement detailing the committee's
26 objections to the rule.
27 (3) Within 30 days after of receipt of the objection,
28 if the agency is headed by an individual, or within 45 days
29 after of receipt of the objection, if the agency is headed by
30 a collegial body, the agency shall:
31 (a) If the rule is not yet in effect a proposed rule:
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1 1. File notice pursuant to s. 120.54(3)(d) of only
2 such modifications as are necessary to address Modify the rule
3 to meet the committee's objection;
4 2. File notice pursuant to s. 120.54(3)(d) of
5 withdrawal of Withdraw the rule in its entirety; or
6 3. Notify the committee in writing that it refuses
7 Refuse to modify or withdraw the rule.
8 (b) If the rule is in effect an existing rule:
9 1. File notice pursuant to s. 120.54(3)(a), without
10 prior notice of rule development, Notify the committee that it
11 has elected to amend the rule to address meet the committee's
12 objection and initiate the amendment procedure;
13 2. File notice pursuant to s. 120.54(3)(a) Notify the
14 committee that it has elected to repeal the rule and initiate
15 the repeal procedure; or
16 3. Notify the committee in writing that it refuses to
17 amend or repeal the rule.
18 (c) If the rule is either an existing or a proposed
19 rule and the objection is to the statement of estimated
20 regulatory costs:
21 1. Prepare a corrected statement of estimated
22 regulatory costs, give notice of the availability of the
23 corrected statement in the first available issue of the
24 Florida Administrative Weekly, and file a copy of the
25 corrected statement with the committee; or
26 2. Notify the committee that it refuses to prepare a
27 corrected statement of estimated regulatory costs.
28 (d) If the rule is unadopted:
29 1. File notice pursuant to s. 120.54(3)(a) of intent
30 to adopt the rule;
31 2. File notice for publication in the Florida
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1 Administrative Weekly that the agency has abandoned all
2 reliance upon the statement or any substantially similar
3 statement as a basis for agency action; or
4 3. Notify the committee in writing that it refuses to
5 adopt the rule or to abandon all reliance upon the statement
6 or any substantially similar statement as a basis for agency
7 action.
8 (4) If the agency elects to modify a proposed rule to
9 meet the committee's objection, it shall make only such
10 modifications as are necessary to meet the objection and shall
11 resubmit the rule to the committee. The agency shall give
12 notice of its election to modify a proposed rule to meet the
13 committee's objection by publishing a notice of change in the
14 first available issue of the Florida Administrative Weekly,
15 but shall not be required to conduct a public hearing. If the
16 agency elects to amend an existing rule to meet the
17 committee's objection, it shall notify the committee in
18 writing and shall initiate the amendment procedure by giving
19 notice in the next available issue of the Florida
20 Administrative Weekly. The committee shall give priority to
21 rules so modified or amended when setting its agenda.
22 (5) If the agency elects to withdraw a proposed rule
23 as a result of a committee objection, it shall notify the
24 committee, in writing, of its election and shall give notice
25 of the withdrawal in the next available issue of the Florida
26 Administrative Weekly. The rule shall be withdrawn without a
27 public hearing, effective upon publication of the notice in
28 the Florida Administrative Weekly. If the agency elects to
29 repeal an existing rule as a result of a committee objection,
30 it shall notify the committee, in writing, of its election and
31 shall initiate rulemaking procedures for that purpose by
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1 giving notice in the next available issue of the Florida
2 Administrative Weekly.
3 (6) If an agency elects to amend or repeal an existing
4 rule as a result of a committee objection, it shall complete
5 the process within 90 days after giving notice in the Florida
6 Administrative Weekly.
7 (4)(7) Failure of the agency to respond to a committee
8 objection to a proposed rule that is not yet in effect within
9 the time prescribed in subsection (3) constitutes shall
10 constitute withdrawal of the rule in its entirety. In this
11 event, the committee shall notify the Department of State that
12 the agency, by its failure to respond to a committee
13 objection, has elected to withdraw the proposed rule. Upon
14 receipt of the committee's notice, the Department of State
15 shall publish a notice to that effect in the next available
16 issue of the Florida Administrative Weekly. Upon publication
17 of the notice, the proposed rule shall be stricken from the
18 files of the Department of State and the files of the agency.
19 (5)(8) Failure of the agency to respond to a committee
20 objection to a an existing rule that is in effect within the
21 time prescribed in subsection (3) constitutes shall constitute
22 a refusal to amend or repeal the rule.
23 (6) Failure of the agency to respond to a committee
24 objection to a statement of estimated regulatory costs within
25 the time prescribed in subsection (3) constitutes a refusal to
26 prepare a corrected statement of estimated regulatory costs.
27 (7) Failure of the agency to respond to a committee
28 objection to an unadopted rule within the time prescribed in
29 subsection (3) constitutes a refusal to adopt the rule and a
30 refusal to abandon all reliance upon the statement or any
31 substantially similar statement as a basis for agency action.
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1 (8)(9) If the committee objects to a proposed or
2 existing rule and the agency refuses to adopt, abandon,
3 modify, amend, withdraw, or repeal it the rule, the committee
4 shall file with the Department of State a notice of the
5 objection, detailing with particularity its objection to the
6 rule. The Department of State shall publish this notice in
7 the Florida Administrative Weekly. If the rule is published
8 and shall publish, as a history note to the rule in the
9 Florida Administrative Code, a reference to the committee's
10 objection and to the issue of the Weekly in which the full
11 text thereof appears shall be recorded in a history note.
12 (9)(10)(a) If the committee objects to a proposed or
13 existing rule, or portion thereof, and the agency fails to
14 initiate administrative action to adopt, abandon, modify,
15 amend, withdraw, or repeal the rule consistent with the
16 objection within 60 days after the objection, or thereafter
17 fails to proceed in good faith to complete such action, the
18 committee may submit to the President of the Senate and the
19 Speaker of the House of Representatives a recommendation that
20 legislation be introduced to address the committee objection
21 modify or suspend the adoption of the proposed rule, or amend
22 or repeal the rule, or portion thereof.
23 (b)1. If the committee votes to recommend the
24 introduction of legislation to address the committee objection
25 modify or suspend the adoption of a proposed rule, or amend or
26 repeal a rule, the committee shall, within 5 days after this
27 determination, certify that fact to the agency whose rule or
28 proposed rule has been examined. The committee may request
29 that the agency temporarily suspend the rule, or suspend the
30 adoption of the proposed rule, or suspend all reliance upon
31 the statement or any substantially similar statement as a
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1 basis for agency action, pending consideration of proposed
2 legislation during the next regular session of the
3 Legislature.
4 2. Within 30 days after receipt of the certification,
5 if the agency is headed by an individual, or within 45 days
6 after receipt of the certification, if the agency is headed by
7 a collegial body, the agency shall either:
8 a. Temporarily suspend the rule, or suspend the
9 adoption of the proposed rule, or suspend all reliance upon
10 the statement or any substantially similar statement as a
11 basis for agency action; or
12 b. Notify the committee in writing that it refuses to
13 temporarily suspend the rule, or suspend the adoption of the
14 proposed rule, or suspend all reliance upon the statement or
15 any substantially similar statement as a basis for agency
16 action.
17 3. If the agency elects to temporarily suspend the
18 rule, or suspend the adoption of the proposed rule, or suspend
19 all reliance upon the statement or any substantially similar
20 statement as a basis for agency action, it shall give notice
21 of the suspension in the Florida Administrative Weekly. The
22 rule or the rule adoption process shall be suspended upon
23 publication of the notice. An agency may shall not base any
24 agency action on a suspended rule, or suspended proposed rule,
25 or suspended statement or any substantially similar statement,
26 or portion thereof, prior to expiration of the suspension. A
27 suspended rule, or suspended proposed rule, or suspended
28 statement or any substantially similar statement, or portion
29 thereof, continues to be subject to administrative
30 determination and judicial review as provided by law.
31 4. Failure of an agency to respond to committee
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1 certification within the time prescribed by subparagraph 2.
2 constitutes a refusal to suspend the rule, or to suspend the
3 adoption of the proposed rule, or suspend all reliance upon
4 the statement or any substantially similar statement as a
5 basis for agency action.
6 (c) The committee shall prepare bills to address the
7 committee objection modify or suspend the adoption of the
8 proposed rule or amend or repeal the rule, or portion thereof,
9 in accordance with the rules of the Senate and the House of
10 Representatives for prefiling and introduction in the next
11 regular session of the Legislature. The proposed bill shall be
12 presented to the President of the Senate and the Speaker of
13 the House of Representatives with the committee
14 recommendation.
15 (d) If a bill to address the committee objection
16 suspend the adoption of a proposed rule is enacted into law,
17 the proposed rule is suspended until specific delegated
18 legislative authority for the proposed rule has been enacted.
19 If a bill to suspend the adoption of a proposed rule fails to
20 become law, any temporary agency suspension of the rule shall
21 expire. If a bill to modify a proposed rule or amend a rule
22 is enacted into law, the suspension shall expire upon
23 publication of notice of modification or amendment in the
24 Florida Administrative Weekly. If a bill to repeal a rule is
25 enacted into law, the suspension shall remain in effect until
26 notification of repeal of the rule is published in the Florida
27 Administrative Weekly.
28 (e) The Department of State shall publish in the next
29 available issue of the Florida Administrative Weekly the final
30 legislative action taken. If a bill to modify or suspend the
31 adoption of the proposed rule or amend or repeal the rule, or
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1 portion thereof, is enacted into law, the Department of State
2 shall conform the rule or portion of the rule to the
3 provisions of the law in the Florida Administrative Code and
4 publish a reference to the law as a history note to the rule.
5 Section 5. Paragraph (a) of subsection (2) and,
6 effective January 1, 2008, subsection (4) of section 120.56,
7 Florida Statutes, is amended to read:
8 120.56 Challenges to rules.--
9 (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--
10 (a) Any substantially affected person may seek an
11 administrative determination of the invalidity of any proposed
12 rule by filing a petition seeking such a determination with
13 the division within 21 days after the date of publication of
14 the notice required by s. 120.54(3)(a), within 10 days after
15 the final public hearing is held on the proposed rule as
16 provided by s. 120.54(3)(e)2. s. 120.54(3)(c), within 20 days
17 after the preparation of a statement of estimated regulatory
18 costs required pursuant to s. 120.541, if applicable, has been
19 provided to all persons who submitted a lower cost regulatory
20 alternative and made available to the public or within 20 days
21 after the date of publication of the notice required by s.
22 120.54(3)(d). The petition shall state with particularity the
23 objections to the proposed rule and the reasons that the
24 proposed rule is an invalid exercise of delegated legislative
25 authority. The petitioner has the burden of going forward. The
26 agency then has the burden to prove by a preponderance of the
27 evidence that the proposed rule is not an invalid exercise of
28 delegated legislative authority as to the objections raised.
29 Any person who is substantially affected by a change in the
30 proposed rule may seek a determination of the validity of such
31 change. Any person not substantially affected by the proposed
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1 rule as initially noticed, but who is substantially affected
2 by the rule as a result of a change, may challenge any
3 provision of the rule and is not limited to challenging the
4 change to the proposed rule.
5 (4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;
6 SPECIAL PROVISIONS.--
7 (a) Any person substantially affected by an agency
8 statement may seek an administrative determination that the
9 statement violates s. 120.54(1)(a). The petition must shall
10 include the text of the statement or a description of the
11 statement and shall state with particularity facts sufficient
12 to show that the statement constitutes a rule under s. 120.52
13 and that the agency has not adopted the statement by the
14 rulemaking procedure provided by s. 120.54. Upon the filing of
15 a petition for an administrative determination under this
16 subsection, the agency shall immediately discontinue all
17 reliance upon the statement or any substantially similar
18 statement as a basis for agency action until:
19 1. The proceeding is dismissed for any reason other
20 than initiation of rulemaking under s. 120.54;
21 2. The statement is adopted and becomes effective as a
22 rule;
23 3. A final order is issued which contains a
24 determination that the petitioner failed to prove that the
25 statement constitutes a rule under s. 120.52; or
26 4. A final order is issued which contains a
27 determination that rulemaking is not feasible under s.
28 120.54(1)(a)1.a. or b. or not practicable under s.
29 120.54(1)(a)2.
30 (b) If the administrative law judge determines that
31 the agency's inability to rely upon the statement during the
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1 proceeding under this subsection would constitute an immediate
2 danger to the public health, safety, or welfare, the
3 administrative law judge shall grant an agency petition to
4 allow application of the statement until the proceeding is
5 concluded.
6 (c)(b) The administrative law judge may extend the
7 hearing date beyond 30 days after assignment of the case for
8 good cause. If a hearing is held and the petitioner proves the
9 allegations of the petition, the agency shall have the burden
10 of proving that rulemaking is not feasible or not and
11 practicable under s. 120.54(1)(a).
12 (d)(c) The administrative law judge may determine
13 whether all or part of a statement violates s. 120.54(1)(a).
14 The decision of the administrative law judge shall constitute
15 a final order. The division shall transmit a copy of the final
16 order to the Department of State and the committee. The
17 Department of State shall publish notice of the final order in
18 the first available issue of the Florida Administrative
19 Weekly.
20 (d) When an administrative law judge enters a final
21 order that all or part of an agency statement violates s.
22 120.54(1)(a), the agency shall immediately discontinue all
23 reliance upon the statement or any substantially similar
24 statement as a basis for agency action.
25 (e)1. If, prior to a final hearing to determine
26 whether all or part of any agency statement violates s.
27 120.54(1)(a), an agency publishes, pursuant to s.
28 120.54(3)(a), proposed rules that address the statement, then
29 for purposes of this section, a presumption is created that
30 the agency is acting expeditiously and in good faith to adopt
31 rules that address the statement, and the agency shall be
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1 permitted to rely upon the statement or a substantially
2 similar statement as a basis for agency action if the
3 statement meets the requirements of s. 120.57(1)(e).
4 2. If, prior to the final hearing to determine whether
5 all or part of an agency statement violates s. 120.54(1)(a),
6 an agency publishes a notice of rule development which
7 addresses the statement pursuant to s. 120.54(2), or certifies
8 that such a notice has been transmitted to the Florida
9 Administrative Weekly for publication, then such publication
10 shall constitute good cause for the granting of a stay of the
11 proceedings and a continuance of the final hearing for 30
12 days. If the agency publishes proposed rules within this
13 30-day period or any extension of that period granted by an
14 administrative law judge upon showing of good cause, then the
15 administrative law judge shall place the case in abeyance
16 pending the outcome of rulemaking and any proceedings
17 involving challenges to proposed rules pursuant to subsection
18 (2).
19 3. If, following the commencement of the final hearing
20 and prior to entry of a final order that all or part of an
21 agency statement violates s. 120.54(1)(a), an agency
22 publishes, pursuant to s. 120.54(3)(a), proposed rules that
23 address the statement and proceeds expeditiously and in good
24 faith to adopt rules that address the statement, the agency
25 shall be permitted to rely upon the statement or a
26 substantially similar statement as a basis for agency action
27 if the statement meets the requirements of s. 120.57(1)(e).
28 4. If an agency fails to adopt rules that address the
29 statement within 180 days after publishing proposed rules, for
30 purposes of this subsection, a presumption is created that the
31 agency is not acting expeditiously and in good faith to adopt
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1 rules. If the agency's proposed rules are challenged pursuant
2 to subsection (2), the 180-day period for adoption of rules is
3 tolled until a final order is entered in that proceeding.
4 5. If the proposed rules addressing the challenged
5 statement are determined to be an invalid exercise of
6 delegated legislative authority as defined in s.
7 120.52(8)(b)-(f), the agency must immediately discontinue
8 reliance on the statement and any substantially similar
9 statement until the rules addressing the subject are properly
10 adopted.
11 (e)(f) All proceedings to determine a violation of s.
12 120.54(1)(a) shall be brought pursuant to this subsection. A
13 proceeding pursuant to this subsection may be consolidated
14 with a proceeding under subsection (3) or under any other
15 section of this chapter. Nothing in this paragraph shall be
16 construed to prevent a party whose substantial interests have
17 been determined by an agency action from bringing a proceeding
18 pursuant to s. 120.57(1)(e).
19 Section 6. Effective January 1, 2008, paragraph (e) of
20 subsection (1) of section 120.57, Florida Statutes, is amended
21 to read:
22 120.57 Additional procedures for particular cases.--
23 (1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS
24 INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--
25 (e)1. Any Agency action that determines the
26 substantial interests of a party may not be and that is based
27 on an agency statement that violates s. 120.54(1)(a). Neither
28 an agency nor an administrative law judge has authority to
29 enforce agency policy that constitutes an unadopted rule when
30 the agency fails to prove that rulemaking is not feasible or
31 not practicable. This subparagraph does not preclude
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1 application of adopted rules and applicable statutes to the
2 facts unadopted rule is subject to de novo review by an
3 administrative law judge.
4 2. The agency action shall not be presumed valid or
5 invalid. The agency must demonstrate that the unadopted rule:
6 a. Is within the powers, functions, and duties
7 delegated by the Legislature or, if the agency is operating
8 pursuant to authority derived from the State Constitution, is
9 within that authority;
10 b. Does not enlarge, modify, or contravene the
11 specific provisions of law implemented;
12 c. Is not vague, establishes adequate standards for
13 agency decisions, or does not vest unbridled discretion in the
14 agency;
15 d. Is not arbitrary or capricious. A rule is arbitrary
16 if it is not supported by logic or the necessary facts; a rule
17 is capricious if it is adopted without thought or reason or is
18 irrational;
19 e. Is not being applied to the substantially affected
20 party without due notice; and
21 f. Does not impose excessive regulatory costs on the
22 regulated person, county, or city.
23 2.3. The recommended and final orders in any
24 proceeding shall be governed by the provisions of paragraphs
25 (k) and (l), except that the administrative law judge's
26 determination regarding the unadopted rule shall not be
27 rejected by the agency unless the agency first determines from
28 a review of the complete record, and states with particularity
29 in the order, that such determination is clearly erroneous or
30 does not comply with essential requirements of law. In any
31 proceeding for review under s. 120.68, if the court finds that
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1 the agency's rejection of the determination regarding the
2 unadopted rule does not comport with the provisions of this
3 subparagraph, the agency action shall be set aside and the
4 court shall award to the prevailing party the reasonable costs
5 and a reasonable attorney's fee for the initial proceeding and
6 the proceeding for review.
7 Section 7. Effective January 1, 2008, subsections (2),
8 (3), and (4) of section 120.595, Florida Statutes, are amended
9 to read:
10 120.595 Attorney's fees.--
11 (2) CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO
12 SECTION 120.56(2).--If the court or administrative law judge
13 declares a proposed rule or portion of a proposed rule invalid
14 pursuant to s. 120.56(2), a judgment or order shall be
15 rendered against the agency for reasonable costs and
16 reasonable attorney's fees, unless the agency demonstrates
17 that its actions were substantially justified or special
18 circumstances exist which would make the award unjust. An
19 agency's actions are "substantially justified" if there was a
20 reasonable basis in law and fact at the time the actions were
21 taken by the agency. If the agency prevails in the
22 proceedings, the court or administrative law judge shall award
23 reasonable costs and reasonable attorney's fees against a
24 party if the court or administrative law judge determines that
25 a party participated in the proceedings for an improper
26 purpose as defined by paragraph (1)(e). No award of attorney's
27 fees as provided by this subsection shall exceed $50,000
28 $15,000.
29 (3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO
30 SECTION 120.56(3) AND (5).--If the court or administrative law
31 judge declares a rule or portion of a rule invalid pursuant to
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1 s. 120.56(3) or s. 120.56(5), a judgment or order shall be
2 rendered against the agency for reasonable costs and
3 reasonable attorney's fees, unless the agency demonstrates
4 that its actions were substantially justified or special
5 circumstances exist which would make the award unjust. An
6 agency's actions are "substantially justified" if there was a
7 reasonable basis in law and fact at the time the actions were
8 taken by the agency. If the agency prevails in the
9 proceedings, the court or administrative law judge shall award
10 reasonable costs and reasonable attorney's fees against a
11 party if the court or administrative law judge determines that
12 a party participated in the proceedings for an improper
13 purpose as defined by paragraph (1)(e). No award of attorney's
14 fees as provided by this subsection shall exceed $50,000
15 $15,000.
16 (4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
17 120.56(4).--
18 (a) Upon entry of a final order that all or part of an
19 agency statement violates s. 120.54(1)(a), the administrative
20 law judge shall award reasonable costs and reasonable
21 attorney's fees to the petitioner, unless the agency
22 demonstrates that the statement is required by the Federal
23 Government to implement or retain a delegated or approved
24 program or to meet a condition to receipt of federal funds.
25 (b) If the agency initiates rulemaking under s. 120.54
26 during a rule challenge under s. 120.56(4) and the statement
27 is adopted and becomes effective as a rule, the administrative
28 law judge shall award reasonable costs and reasonable
29 attorney's fees accrued to the date the agency initiated
30 rulemaking upon a finding that the agency knew or should have
31 known that the agency statement was an unadopted rule. The
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1 administrative law judge may consider, among other factors,
2 whether or not the petitioner or other person had requested or
3 formally petitioned the agency to adopt the statement as a
4 rule prior to the filing of the s. 120.56(4) challenge.
5 (c)(b) Notwithstanding the provisions of chapter 284,
6 an award shall be paid from the budget entity of the
7 secretary, executive director, or equivalent administrative
8 officer of the agency, and the agency shall not be entitled to
9 payment of an award or reimbursement for payment of an award
10 under any provision of law.
11 (d) If the agency prevails in the proceedings, the
12 court or administrative law judge shall award reasonable costs
13 and reasonable attorney's fees against a party if the court or
14 administrative law judge determines that the party
15 participated in the proceedings for an improper purpose as
16 defined in paragraph (1)(e).
17 Section 8. Paragraph (a) of subsection (1) of section
18 120.55, Florida Statutes, is amended to read:
19 120.55 Publication.--
20 (1) The Department of State shall:
21 (a)1. Through a continuous revision system, compile
22 and publish the "Florida Administrative Code." The Florida
23 Administrative Code shall contain all rules adopted by each
24 agency, citing the specific rulemaking authority pursuant to
25 which each rule was adopted, all history notes as authorized
26 in s. 120.545(8) s. 120.545(9), and complete indexes to all
27 rules contained in the code. Supplementation shall be made as
28 often as practicable, but at least monthly. The department
29 may contract with a publishing firm for the publication, in a
30 timely and useful form, of the Florida Administrative Code;
31 however, the department shall retain responsibility for the
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1 code as provided in this section. This publication shall be
2 the official compilation of the administrative rules of this
3 state. The Department of State shall retain the copyright over
4 the Florida Administrative Code.
5 2. Rules general in form but applicable to only one
6 school district, community college district, or county, or a
7 part thereof, or state university rules relating to internal
8 personnel or business and finance shall not be published in
9 the Florida Administrative Code. Exclusion from publication in
10 the Florida Administrative Code shall not affect the validity
11 or effectiveness of such rules.
12 3. At the beginning of the section of the code dealing
13 with an agency that files copies of its rules with the
14 department, the department shall publish the address and
15 telephone number of the executive offices of each agency, the
16 manner by which the agency indexes its rules, a listing of all
17 rules of that agency excluded from publication in the code,
18 and a statement as to where those rules may be inspected.
19 4. Forms shall not be published in the Florida
20 Administrative Code; but any form which an agency uses in its
21 dealings with the public, along with any accompanying
22 instructions, shall be filed with the committee before it is
23 used. Any form or instruction which meets the definition of
24 "rule" provided in s. 120.52 shall be incorporated by
25 reference into the appropriate rule. The reference shall
26 specifically state that the form is being incorporated by
27 reference and shall include the number, title, and effective
28 date of the form and an explanation of how the form may be
29 obtained.
30 Section 9. Effective December 31, 2007, paragraph (a)
31 of subsection (1) of section 120.55, Florida Statutes, as
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1 amended by section 4 of chapter 2006-82, Laws of Florida, is
2 amended to read:
3 120.55 Publication.--
4 (1) The Department of State shall:
5 (a)1. Through a continuous revision system, compile
6 and publish the "Florida Administrative Code." The Florida
7 Administrative Code shall contain all rules adopted by each
8 agency, citing the specific rulemaking authority pursuant to
9 which each rule was adopted, all history notes as authorized
10 in s. 120.545(8) s. 120.545(9), and complete indexes to all
11 rules contained in the code. Supplementation shall be made as
12 often as practicable, but at least monthly. The department
13 may contract with a publishing firm for the publication, in a
14 timely and useful form, of the Florida Administrative Code;
15 however, the department shall retain responsibility for the
16 code as provided in this section. This publication shall be
17 the official compilation of the administrative rules of this
18 state. The Department of State shall retain the copyright over
19 the Florida Administrative Code.
20 2. Rules general in form but applicable to only one
21 school district, community college district, or county, or a
22 part thereof, or state university rules relating to internal
23 personnel or business and finance shall not be published in
24 the Florida Administrative Code. Exclusion from publication in
25 the Florida Administrative Code shall not affect the validity
26 or effectiveness of such rules.
27 3. At the beginning of the section of the code dealing
28 with an agency that files copies of its rules with the
29 department, the department shall publish the address and
30 telephone number of the executive offices of each agency, the
31 manner by which the agency indexes its rules, a listing of all
25
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1 rules of that agency excluded from publication in the code,
2 and a statement as to where those rules may be inspected.
3 4. Forms shall not be published in the Florida
4 Administrative Code; but any form which an agency uses in its
5 dealings with the public, along with any accompanying
6 instructions, shall be filed with the committee before it is
7 used. Any form or instruction which meets the definition of
8 "rule" provided in s. 120.52 shall be incorporated by
9 reference into the appropriate rule. The reference shall
10 specifically state that the form is being incorporated by
11 reference and shall include the number, title, and effective
12 date of the form and an explanation of how the form may be
13 obtained. Each form created by an agency which is incorporated
14 by reference in a rule notice of which is given under s.
15 120.54(3)(a) after December 31, 2007, must clearly display the
16 number, title, and effective date of the form and the number
17 of the rule in which the form is incorporated.
18 Section 10. Except as otherwise expressly provided in
19 this act, this act shall take effect July 1, 2007.
20
21
22 ================ T I T L E A M E N D M E N T ===============
23 And the title is amended as follows:
24 Delete everything before the enacting clause
25
26 and insert:
27 A bill to be entitled
28 An act relating to administrative procedures;
29 amending s. 120.52, F.S.; defining the term
30 "unadopted rule"; amending s. 120.54, F.S.;
31 prohibiting any agency from delegating
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1 responsibilities to conduct a public hearing;
2 revising dates for filing rules for adoption;
3 revising provisions with respect to petitions
4 to initiate rulemaking; amending s. 120.545,
5 F.S.; revising duties of the Administrative
6 Procedures Committee and agencies with respect
7 to review of agency rules; providing for a
8 legislative committee to request agency
9 information for examination of an unadopted
10 rule; prescribing responses that may be made by
11 an agency to a committee objection to a rule or
12 statement of estimated regulatory costs;
13 prescribing presumptions resulting from an
14 agency's refusal to respond to committee
15 objections; amending s. 120.56, F.S.; revising
16 notice requirements with respect to challenges
17 of proposed rules; requiring an agency to
18 discontinue reliance on a statement when an
19 administrative determination is sought with
20 respect to the statement; allowing continued
21 reliance on a statement when an administrative
22 law judge determines that the inability to rely
23 on it would constitute an immediate danger;
24 deleting certain provisions relating to actions
25 before a final hearing is held; amending s.
26 120.57, F.S.; prescribing procedures with
27 respect to challenges to unadopted rules;
28 amending s. 120.595, F.S.; increasing maximum
29 attorney's fees; revising guidelines for award
30 of attorney's fees in challenges to agency
31 action; providing for attorney's fees and costs
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1 in certain circumstances; amending s. 120.55,
2 F.S.; conforming a cross-reference; providing
3 effective dates.
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