Florida Senate - 2008 COMMITTEE AMENDMENT

Bill No. SB 704

122210

CHAMBER ACTION

Senate

Comm: RCS

3/25/2008

House

The Committee on Judiciary (Gaetz) recommended the following

amendment:

Senate Amendment (with title amendment)

Delete everything after the enacting clause

and insert:

Section 1. This act may be cited as the "Open Government

Act."

Section 2. Subsection (8) of section 120.52, Florida

Statutes, is amended, present subsections (9) through (15) of

that section are renumbered as subsections (10) through (16),

respectively, present subsections (16), (17), (18), and (19) of

that section are redesignated as subsections (18), (19), (21),

and (22), respectively, and new subsections (9), (17), and (20)

are added to that section, to read:

120.52 Definitions.--As used in this act:

(8) "Invalid exercise of delegated legislative authority"

means action that which goes beyond the powers, functions, and

duties delegated by the Legislature. A proposed or existing rule

is an invalid exercise of delegated legislative authority if any

one of the following applies:

(a) The agency has materially failed to follow the

applicable rulemaking procedures or requirements set forth in

this chapter;

(b) The agency has exceeded its grant of rulemaking

authority, citation to which is required by s. 120.54(3)(a)1.;

specific provisions of law implemented, citation to which is

required by s. 120.54(3)(a)1.;

(d) The rule is vague, fails to establish adequate

standards for agency decisions, or vests unbridled discretion in

the agency;

(e) The rule is arbitrary or capricious. A rule is

arbitrary if it is not supported by logic or the necessary facts;

a rule is capricious if it is adopted without thought or reason

or is irrational; or

(f) The rule imposes regulatory costs on the regulated

person, county, or city which could be reduced by the adoption of

less costly alternatives that substantially accomplish the

statutory objectives.

A grant of rulemaking authority is necessary but not sufficient

to allow an agency to adopt a rule; a specific law to be

implemented is also required. An agency may adopt only rules that

implement or interpret the specific powers and duties granted by

the enabling statute. No agency shall have authority to adopt a

rule only because it is reasonably related to the purpose of the

enabling legislation and is not arbitrary and capricious or is

within the agency's class of powers and duties, nor shall an

agency have the authority to implement statutory provisions

setting forth general legislative intent or policy. Statutory

language granting rulemaking authority or generally describing

the powers and functions of an agency shall be construed to

extend no further than implementing or interpreting the specific

powers and duties conferred by the enabling statute by the same

statute.

(9) "Law implemented" means the language of the enabling

statute being carried out or interpreted by an agency through

rulemaking.

(17) "Rulemaking authority" means statutory language that

explicitly authorizes or requires an agency to adopt, develop,

establish, or otherwise create any statement coming within the

definition of the term "rule."

(20) "Unadopted rule" means an agency statement that meets

the definition of the term "rule," but that has not been adopted

pursuant to the requirements of s. 120.54.

Section 3. Paragraph (a) of subsection (2) of section

120.53, Florida Statutes, is amended to read:

120.53 Maintenance of orders; indexing; listing;

organizational information.--

(2)(a) An agency may comply with subparagraphs (1)(a)1. and

2. by designating an official reporter to publish and index by

subject matter each agency order that must be indexed and made

available to the public, or by electronically transmitting to the

division a copy of such orders for posting on the division's

website. An agency is in compliance with subparagraph (1)(a)3. if

it publishes in its designated reporter a list of each agency

final order that must be listed and preserves each listed order

and makes it available for public inspection and copying.

Section 4. Subsection (1) of section 120.536, Florida

Statutes, is amended to read:

120.536 Rulemaking authority; repeal; challenge.--

(1) A grant of rulemaking authority is necessary but not

sufficient to allow an agency to adopt a rule; a specific law to

be implemented is also required. An agency may adopt only rules

that implement or interpret the specific powers and duties

granted by the enabling statute. No agency shall have authority

to adopt a rule only because it is reasonably related to the

purpose of the enabling legislation and is not arbitrary and

capricious or is within the agency's class of powers and duties,

nor shall an agency have the authority to implement statutory

provisions setting forth general legislative intent or policy.

Statutory language granting rulemaking authority or generally

describing the powers and functions of an agency shall be

construed to extend no further than implementing or interpreting

the specific powers and duties conferred by the enabling statute

by the same statute.

Section 5. Paragraph (i) of subsection (1), paragraphs (a),

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(c), and (e) of subsection (3), paragraph (a) of subsection (4),

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and subsection (7) of section 120.54, Florida Statutes, are

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amended, and paragraph (k) is added to subsection (1) of that

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section, to read:

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120.54 Rulemaking.--

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(1) GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN

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EMERGENCY RULES.--

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(i)1. A rule may incorporate material by reference but only

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as the material exists on the date the rule is adopted. For

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purposes of the rule, changes in the material are not effective

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unless the rule is amended to incorporate the changes.

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2. An agency rule that incorporates by specific reference

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another rule of that agency automatically incorporates subsequent

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amendments to the referenced rule unless a contrary intent is

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clearly indicated in the referencing rule. A notice of amendments

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to a rule that has been incorporated by specific reference in

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other rules of that agency must explain the effect of those

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amendments on the referencing rules.

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3. In rules adopted after December 31, 2010, material may

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not be incorporated by reference unless:

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a. The material has been submitted in the prescribed

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electronic format to the Department of State and the full text of

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the material can be made available for free public access through

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an electronic hyperlink from the rule making the reference in the

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Florida Administrative Code; or

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b. The agency has determined that posting the material on

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the Internet for purposes of public examination and inspection

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would constitute a violation of federal copyright law, in which

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case a statement to that effect, along with the address of

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locations at the Department of State and the agency at which the

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material is available for public inspection and examination, must

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be included in the notice required by subparagraph (3)(a)1.

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4. A rule may not be amended by reference only. Amendments

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must set out the amended rule in full in the same manner as

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required by the State Constitution for laws. The Department of

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State may prescribe by rule requirements for incorporating

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materials by reference pursuant to this paragraph.

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5.2. Notwithstanding any contrary provision in this

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section, when an adopted rule of the Department of Environmental

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Protection or a water management district is incorporated by

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reference in the other agency's rule to implement a provision of

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part IV of chapter 373, subsequent amendments to the rule are not

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effective as to the incorporating rule unless the agency

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incorporating by reference notifies the committee and the

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Department of State of its intent to adopt the subsequent

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amendment, publishes notice of such intent in the Florida

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Administrative Weekly, and files with the Department of State a

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copy of the amended rule incorporated by reference. Changes in

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the rule incorporated by reference are effective as to the other

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agency 20 days after the date of the published notice and filing

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with the Department of State. The Department of State shall amend

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the history note of the incorporating rule to show the effective

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date of such change. Any substantially affected person may,

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within 14 days after the date of publication of the notice of

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intent in the Florida Administrative Weekly, file an objection to

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rulemaking with the agency. The objection shall specify the

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portions of the rule incorporated by reference to which the

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person objects and the reasons for the objection. The agency

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shall not have the authority under this subparagraph to adopt

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those portions of the rule specified in such objection. The

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agency shall publish notice of the objection and of its action in

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response in the next available issue of the Florida

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Administrative Weekly.

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6. The Department of State may adopt by rule requirements

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for incorporating materials pursuant to this paragraph.

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(k) An agency head may delegate the authority to initiate

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rule development under subsection (2); however, rulemaking

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responsibilities of an agency head under subparagraph (3)(a)1.,

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subparagraph (3)(e)1., or subparagraph (3)(e)6. may not be

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delegated or transferred.

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(3) ADOPTION PROCEDURES.--

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(a) Notices.--

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1. Prior to the adoption, amendment, or repeal of any rule

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other than an emergency rule, an agency, upon approval of the

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agency head, shall give notice of its intended action, setting

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forth a short, plain explanation of the purpose and effect of the

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proposed action; the full text of the proposed rule or amendment

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and a summary thereof; a reference to the grant of specific

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rulemaking authority pursuant to which the rule is adopted; and a

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reference to the section or subsection of the Florida Statutes or

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the Laws of Florida being implemented or, interpreted, or made

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specific. The notice must shall include a summary of the agency's

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statement of the estimated regulatory costs, if one has been

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prepared, based on the factors set forth in s. 120.541(2), and a

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statement that any person who wishes to provide the agency with

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information regarding the statement of estimated regulatory

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costs, or to provide a proposal for a lower cost regulatory

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alternative as provided by s. 120.541(1), must do so in writing

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within 21 days after publication of the notice. The notice must

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state the procedure for requesting a public hearing on the

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proposed rule. Except when the intended action is the repeal of a

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rule, the notice must shall include a reference both to the date

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on which and to the place where the notice of rule development

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that is required by subsection (2) appeared.

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2. The notice shall be published in the Florida

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Administrative Weekly not less than 28 days prior to the intended

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action. The proposed rule shall be available for inspection and

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copying by the public at the time of the publication of notice.

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3. The notice shall be mailed to all persons named in the

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proposed rule and to all persons who, at least 14 days prior to

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such mailing, have made requests of the agency for advance notice

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of its proceedings. The agency shall also give such notice as is

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prescribed by rule to those particular classes of persons to whom

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the intended action is directed.

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4. The adopting agency shall file with the committee, at

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least 21 days prior to the proposed adoption date, a copy of each

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rule it proposes to adopt; a copy of any material incorporated by

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reference in the rule; a detailed written statement of the facts

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and circumstances justifying the proposed rule; a copy of any

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statement of estimated regulatory costs that has been prepared

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pursuant to s. 120.541; a statement of the extent to which the

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proposed rule relates to federal standards or rules on the same

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subject; and the notice required by subparagraph 1.

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1. If the intended action concerns any rule other than one

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relating exclusively to procedure or practice, the agency shall,

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on the request of any affected person received within 21 days

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after the date of publication of the notice of intended agency

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action, give affected persons an opportunity to present evidence

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and argument on all issues under consideration. The agency may

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schedule a public hearing on the rule and, if requested by any

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affected person, shall schedule a public hearing on the rule. If

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the agency head is a board or other collegial body created under

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s. 20.165(4) or s. 20.43(3)(g), and one or more requested public

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hearings is scheduled, the board or other collegial body shall

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conduct at least one of the public hearings itself and may not

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delegate this responsibility without the consent of those persons

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requesting the public hearing. Any material pertinent to the

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issues under consideration submitted to the agency within 21 days

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after the date of publication of the notice or submitted at a

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public hearing shall be considered by the agency and made a part

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of the record of the rulemaking proceeding.

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2. Rulemaking proceedings shall be governed solely by the

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provisions of this section unless a person timely asserts that

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the person's substantial interests will be affected in the

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proceeding and affirmatively demonstrates to the agency that the

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proceeding does not provide adequate opportunity to protect those

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interests. If the agency determines that the rulemaking

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proceeding is not adequate to protect the person's interests, it

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shall suspend the rulemaking proceeding and convene a separate

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proceeding under the provisions of ss. 120.569 and 120.57.

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Similarly situated persons may be requested to join and

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participate in the separate proceeding. Upon conclusion of the

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separate proceeding, the rulemaking proceeding shall be resumed.

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(e) Filing for final adoption; effective date.--

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1. If the adopting agency is required to publish its rules

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in the Florida Administrative Code, the agency, upon approval of

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the agency head, it shall file with the Department of State three

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certified copies of the rule it proposes to adopt; one copy of

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any material incorporated by reference in the rule, certified by

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the agency;, a summary of the rule;, a summary of any hearings

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held on the rule;, and a detailed written statement of the facts

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and circumstances justifying the rule. Agencies not required to

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publish their rules in the Florida Administrative Code shall file

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one certified copy of the proposed rule, and the other material

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required by this subparagraph, in the office of the agency head,

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and such rules shall be open to the public.

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2. A rule may not be filed for adoption less than 28 days

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or more than 90 days after the notice required by paragraph (a),

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until 21 days after the notice of change required by paragraph

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(d), until 14 days after the final public hearing, until 21 days

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after preparation of a statement of estimated regulatory costs

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required under s. 120.541 has been provided to all persons who

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submitted a lower cost regulatory alternative and made available

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to the public, or until the administrative law judge has rendered

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a decision under s. 120.56(2), whichever applies. When a required

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notice of change is published prior to the expiration of the time

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to file the rule for adoption, the period during which a rule

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must be filed for adoption is extended to 45 days after the date

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of publication. If notice of a public hearing is published prior

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to the expiration of the time to file the rule for adoption, the

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period during which a rule must be filed for adoption is extended

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to 45 days after adjournment of the final hearing on the rule, 21

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days after receipt of all material authorized to be submitted at

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the hearing, or 21 days after receipt of the transcript, if one

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is made, whichever is latest. The term "public hearing" includes

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any public meeting held by any agency at which the rule is

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considered. If a petition for an administrative determination

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under s. 120.56(2) is filed, the period during which a rule must

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be filed for adoption is extended to 60 days after the

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administrative law judge files the final order with the clerk or

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until 60 days after subsequent judicial review is complete.

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3. At the time a rule is filed, the agency shall certify

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that the time limitations prescribed by this paragraph have been

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complied with, that all statutory rulemaking requirements have

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been met, and that there is no administrative determination

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pending on the rule.

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4. At the time a rule is filed, the committee shall certify

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whether the agency has responded in writing to all material and

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timely written comments or written inquiries made on behalf of

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the committee. The department shall reject any rule that is not

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filed within the prescribed time limits; that does not comply

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with satisfy all statutory rulemaking requirements and rules of

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the department; upon which an agency has not responded in writing

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to all material and timely written inquiries or written comments;

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upon which an administrative determination is pending; or which

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does not include a statement of estimated regulatory costs, if

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required.

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5. If a rule has not been adopted within the time limits

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imposed by this paragraph or has not been adopted in compliance

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with all statutory rulemaking requirements, the agency proposing

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the rule shall withdraw the rule and give notice of its action in

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the next available issue of the Florida Administrative Weekly.

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6. The proposed rule shall be adopted on being filed with

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the Department of State and become effective 20 days after being

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filed, on a later date specified in the rule, or on a date

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required by statute. Rules not required to be filed with the

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Department of State shall become effective when adopted by the

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agency head or on a later date specified by rule or statute. If

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the committee notifies an agency that an objection to a rule is

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being considered, the agency may postpone the adoption of the

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rule to accommodate review of the rule by the committee. When an

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agency postpones adoption of a rule to accommodate review by the

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committee, the 90-day period for filing the rule is tolled until

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the committee notifies the agency that it has completed its

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review of the rule.

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For the purposes of this paragraph, the term "administrative

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determination" does not include subsequent judicial review.

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(4) EMERGENCY RULES.--

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(a) If an agency finds that an immediate danger to the

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public health, safety, or welfare requires emergency action, the

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agency may adopt any rule necessitated by the immediate danger.

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The agency may adopt a rule by any procedure which is fair under

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the circumstances if:

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1. The procedure provides at least the procedural

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protection given by other statutes, the State Constitution, or

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the United States Constitution.

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2. The agency takes only that action necessary to protect

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the public interest under the emergency procedure.

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3. The agency publishes in writing at the time of, or prior

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to, its action the specific facts and reasons for finding an

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immediate danger to the public health, safety, or welfare and its

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reasons for concluding that the procedure used is fair under the

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circumstances. In any event, notice of emergency rules, other

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than those of educational units or units of government with

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jurisdiction in only one or a part of one county, including the

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full text of the rules, shall be published in the first available

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issue of the Florida Administrative Weekly and provided to the

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committee along with any material incorporated by reference in

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the rules. The agency's findings of immediate danger, necessity,

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and procedural fairness shall be judicially reviewable.

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(7) PETITION TO INITIATE RULEMAKING.--

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(a) Any person regulated by an agency or having substantial

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interest in an agency rule may petition an agency to adopt,

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amend, or repeal a rule or to provide the minimum public

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information required by this chapter. The petition shall specify

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the proposed rule and action requested. Not later than 30

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calendar days following the date of filing a petition, the agency

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shall initiate rulemaking proceedings under this chapter,

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otherwise comply with the requested action, or deny the petition

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with a written statement of its reasons for the denial.

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(b) If the petition filed under this subsection is directed

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to an unadopted existing rule which the agency has not adopted by

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the rulemaking procedures or requirements set forth in this

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chapter, the agency shall, not later than 30 days following the

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date of filing a petition, initiate rulemaking, or provide notice

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in the Florida Administrative Weekly that the agency will hold a

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public hearing on the petition within 30 days after publication

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of the notice. The purpose of the public hearing is to consider

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the comments of the public directed to the agency rule which has

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not been adopted by the rulemaking procedures or requirements of

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this chapter, its scope and application, and to consider whether

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the public interest is served adequately by the application of

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the rule on a case-by-case basis, as contrasted with its adoption

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by the rulemaking procedures or requirements set forth in this

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chapter.

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for by paragraph (b), if the agency does not initiate rulemaking

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or otherwise comply with the requested action, the agency shall

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publish in the Florida Administrative Weekly a statement of its

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reasons for not initiating rulemaking or otherwise complying with

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the requested action, and of any changes it will make in the

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scope or application of the unadopted rule. The agency shall file

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the statement with the committee. The committee shall forward a

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copy of the statement to the substantive committee with primary

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oversight jurisdiction of the agency in each house of the

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Legislature. The committee or the committee with primary

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oversight jurisdiction may hold a hearing directed to the

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statement of the agency. The committee holding the hearing may

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recommend to the Legislature the introduction of legislation

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making the rule a statutory standard or limiting or otherwise

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modifying the authority of the agency.

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Section 6. Effective January 1, 2009, paragraph (a) of

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subsection (1) of section 120.54, Florida Statutes, is amended to

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read:

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120.54 Rulemaking.--

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(1) GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN

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EMERGENCY RULES.--

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(a) Rulemaking is not a matter of agency discretion. Each

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agency statement defined as a rule by s. 120.52 shall be adopted

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by the rulemaking procedure provided by this section as soon as

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feasible and practicable.

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1. Rulemaking shall be presumed feasible unless the agency

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proves that:

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a. The agency has not had sufficient time to acquire the

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knowledge and experience reasonably necessary to address a

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statement by rulemaking;

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b. Related matters are not sufficiently resolved to enable

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the agency to address a statement by rulemaking; or

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c. The agency is currently using the rulemaking procedure

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expeditiously and in good faith to adopt rules which address the

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statement.

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2. Rulemaking shall be presumed practicable to the extent

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necessary to provide fair notice to affected persons of relevant

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agency procedures and applicable principles, criteria, or

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standards for agency decisions unless the agency proves that:

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a. Detail or precision in the establishment of principles,

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criteria, or standards for agency decisions is not reasonable

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under the circumstances; or

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b. The particular questions addressed are of such a narrow

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scope that more specific resolution of the matter is impractical

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outside of an adjudication to determine the substantial interests

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of a party based on individual circumstances.

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Section 7. Section 120.545, Florida Statutes, is amended to

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read:

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120.545 Committee review of agency rules.--

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(1) As a legislative check on legislatively created

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authority, the committee shall examine each proposed rule, except

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for those proposed rules exempted by s. 120.81(1)(e) and (2), and

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its accompanying material, and each emergency rule, and may

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examine any existing rule, for the purpose of determining

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whether:

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(a) The rule is an invalid exercise of delegated

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legislative authority.

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(b) The statutory authority for the rule has been repealed.

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(d) The rule is in proper form.

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(e) The notice given prior to its adoption was sufficient

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to give adequate notice of the purpose and effect of the rule.

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(f) The rule is consistent with expressed legislative

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intent pertaining to the specific provisions of law which the

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rule implements.

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(g) The rule is necessary to accomplish the apparent or

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expressed objectives of the specific provision of law which the

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rule implements.

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(h) The rule is a reasonable implementation of the law as

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it affects the convenience of the general public or persons

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particularly affected by the rule.

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(i) The rule could be made less complex or more easily

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comprehensible to the general public.

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(j) The rule's statement of estimated regulatory costs

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complies with the requirements of s. 120.541 and whether the rule

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does not impose regulatory costs on the regulated person, county,

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or city which could be reduced by the adoption of less costly

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alternatives that substantially accomplish the statutory

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objectives.

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(k) The rule will require additional appropriations.

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(l) If the rule is an emergency rule, there exists an

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emergency justifying the adoption promulgation of such rule, the

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agency is within has exceeded the scope of its statutory

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authority, and the rule was adopted promulgated in compliance

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with the requirements and limitations of s. 120.54(4).

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(2) The committee may request from an agency such

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information as is reasonably necessary for examination of a rule

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as required by subsection (1). The committee shall consult with

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legislative standing committees having with jurisdiction over the

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subject areas. If the committee objects to an emergency rule or a

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proposed or existing rule, the committee it shall, within 5 days

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after of the objection, certify that fact to the agency whose

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rule has been examined and include with the certification a

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statement detailing its objections with particularity. The

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committee shall notify the Speaker of the House of

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Representatives and the President of the Senate of any objection

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to an agency rule concurrent with certification of that fact to

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the agency. Such notice shall include a copy of the rule and the

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statement detailing the committee's objections to the rule.

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(3) Within 30 days after of receipt of the objection, if

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the agency is headed by an individual, or within 45 days after of

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receipt of the objection, if the agency is headed by a collegial

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body, the agency shall:

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(a) If the rule is not yet in effect a proposed rule:

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1. File notice pursuant to s. 120.54(3)(d) of only such

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modifications as are necessary to address Modify the rule to meet

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the committee's objection;

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2. File notice pursuant to s. 120.54(3)(d) of withdrawal of

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withdraw the rule in its entirety; or

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3. Notify the committee in writing that it refuses Refuse

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to modify or withdraw the rule.

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(b) If the rule is in effect an existing rule:

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1. File notice pursuant to s. 120.54(3)(a), without prior

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notice of rule development, Notify the committee that it has

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elected to amend the rule to address meet the committee's

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objection and initiate the amendment procedure;

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2. File notice pursuant to s. 120.54(3)(a) Notify the

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committee that it has elected to repeal the rule and initiate the

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repeal procedure; or

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3. Notify the committee in writing that the agency it

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refuses to amend or repeal the rule.

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and the objection is to the statement of estimated regulatory

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costs:

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1. Prepare a corrected statement of estimated regulatory

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costs, give notice of the availability of the corrected statement

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in the first available issue of the Florida Administrative

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Weekly, and file a copy of the corrected statement with the

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committee; or

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2. Notify the committee that it refuses to prepare a

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corrected statement of estimated regulatory costs.

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(4) If the agency elects to modify a proposed rule to meet

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the committee's objection, it shall make only such modifications

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as are necessary to meet the objection and shall resubmit the

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rule to the committee. The agency shall give notice of its

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election to modify a proposed rule to meet the committee's

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objection by publishing a notice of change in the first available

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issue of the Florida Administrative Weekly, but shall not be

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required to conduct a public hearing. If the agency elects to

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amend an existing rule to meet the committee's objection, it

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shall notify the committee in writing and shall initiate the

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amendment procedure by giving notice in the next available issue

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of the Florida Administrative Weekly. The committee shall give

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priority to rules so modified or amended when setting its agenda.

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(5) If the agency elects to withdraw a proposed rule as a

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result of a committee objection, it shall notify the committee,

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in writing, of its election and shall give notice of the

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withdrawal in the next available issue of the Florida

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Administrative Weekly. The rule shall be withdrawn without a

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public hearing, effective upon publication of the notice in the

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Florida Administrative Weekly. If the agency elects to repeal an

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existing rule as a result of a committee objection, it shall

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notify the committee, in writing, of its election and shall

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initiate rulemaking procedures for that purpose by giving notice

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in the next available issue of the Florida Administrative Weekly.

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(6) If an agency elects to amend or repeal an existing rule

524

as a result of a committee objection, it shall complete the

525

process within 90 days after giving notice in the Florida

526

Administrative Weekly.

527

(4)(7) Failure of the agency to respond to a committee

528

objection to a proposed rule that is not yet in effect within the

529

time prescribed in subsection (3) constitutes shall constitute

530

withdrawal of the rule in its entirety. In this event, the

531

committee shall notify the Department of State that the agency,

532

by its failure to respond to a committee objection, has elected

533

to withdraw the proposed rule. Upon receipt of the committee's

534

notice, the Department of State shall publish a notice to that

535

effect in the next available issue of the Florida Administrative

536

Weekly. Upon publication of the notice, the proposed rule shall

537

be stricken from the files of the Department of State and the

538

files of the agency.

539

(5)(8) Failure of the agency to respond to a committee

540

objection to a an existing rule that is in effect within the time

541

prescribed in subsection (3) constitutes shall constitute a

542

refusal to amend or repeal the rule.

543

(6) Failure of the agency to respond to a committee

544

objection to a statement of estimated regulatory costs within the

545

time prescribed in subsection (3) constitutes a refusal to

546

prepare a corrected statement of estimated regulatory costs.

547

(7)(9) If the committee objects to a proposed or existing

548

rule and the agency refuses to modify, amend, withdraw, or repeal

549

the rule, the committee shall file with the Department of State a

550

notice of the objection, detailing with particularity the

551

committee's its objection to the rule. The Department of State

552

shall publish this notice in the Florida Administrative Weekly.

553

If the rule is published and shall publish, as a history note to

554

the rule in the Florida Administrative Code, a reference to the

555

committee's objection and to the issue of the Florida

556

Administrative Weekly in which the full text thereof appears

557

shall be recorded in a history note.

558

(8)(10)(a) If the committee objects to a proposed or

559

existing rule, or portion of a rule thereof, and the agency fails

560

to initiate administrative action to modify, amend, withdraw, or

561

repeal the rule consistent with the objection within 60 days

562

after the objection, or thereafter fails to proceed in good faith

563

to complete such action, the committee may submit to the

564

President of the Senate and the Speaker of the House of

565

Representatives a recommendation that legislation be introduced

566

to address the committee's objection modify or suspend the

567

adoption of the proposed rule, or amend or repeal the rule, or

568

portion thereof.

569

(b)1. If the committee votes to recommend the introduction

570

of legislation to address the committee's objection modify or

571

suspend the adoption of a proposed rule, or amend or repeal a

572

rule, the committee shall, within 5 days after this

573

determination, certify that fact to the agency whose rule or

574

proposed rule has been examined. The committee may request that

575

the agency temporarily suspend the rule or suspend the adoption

576

of the proposed rule, pending consideration of proposed

577

legislation during the next regular session of the Legislature.

578

2. Within 30 days after receipt of the certification, if

579

the agency is headed by an individual, or within 45 days after

580

receipt of the certification, if the agency is headed by a

581

collegial body, the agency shall either:

582

a. Temporarily suspend the rule or suspend the adoption of

583

the proposed rule; or

584

b. Notify the committee in writing that the agency it

585

refuses to temporarily suspend the rule or suspend the adoption

586

of the proposed rule.

587

3. If the agency elects to temporarily suspend the rule or

588

suspend the adoption of the proposed rule, the agency it shall

589

give notice of the suspension in the Florida Administrative

590

Weekly. The rule or the rule adoption process shall be suspended

591

upon publication of the notice. An agency may shall not base any

592

agency action on a suspended rule or suspended proposed rule, or

593

portion of such rule thereof, prior to expiration of the

594

suspension. A suspended rule or suspended proposed rule, or

595

portion of such rule thereof, continues to be subject to

596

administrative determination and judicial review as provided by

597

law.

598

4. Failure of an agency to respond to committee

599

certification within the time prescribed by subparagraph 2.

600

constitutes a refusal to suspend the rule or to suspend the

601

adoption of the proposed rule.

602

603

to address the committee's objection modify or suspend the

604

adoption of the proposed rule or amend or repeal the rule, or

605

portion thereof, in accordance with the rules of the Senate and

606

the House of Representatives for prefiling and introduction in

607

the next regular session of the Legislature. The proposed

608

legislation bill shall be presented to the President of the

609

Senate and the Speaker of the House of Representatives with the

610

committee recommendation.

611

(d) If proposed legislation addressing the committee's

612

objection a bill to suspend the adoption of a proposed rule is

613

enacted into law, the proposed rule is suspended until specific

614

delegated legislative authority for the proposed rule has been

615

enacted. If a bill to suspend the adoption of a proposed rule

616

fails to become law, any temporary agency suspension of the rule

617

shall expire. If a bill to modify a proposed rule or amend a rule

618

is enacted into law, the suspension shall expire upon publication

619

of notice of modification or amendment in the Florida

620

Administrative Weekly. If a bill to repeal a rule is enacted into

621

law, the suspension shall remain in effect until notification of

622

repeal of the rule is published in the Florida Administrative

623

Weekly.

624

(e) The Department of State shall publish in the next

625

available issue of the Florida Administrative Weekly the final

626

legislative action taken. If a bill to modify or suspend the

627

adoption of the proposed rule or amend or repeal the rule, or

628

portion thereof, is enacted into law, the Department of State

629

shall conform the rule or portion of the rule to the provisions

630

of the law in the Florida Administrative Code and publish a

631

reference to the law as a history note to the rule.

632

Section 8. Paragraphs (a) and (d) of subsection (1) and

633

subsection (5) of section 120.55, Florida Statutes, are amended

634

to read:

635

120.55 Publication.--

636

(1) The Department of State shall:

637

(a)1. Through a continuous revision system, compile and

638

publish the "Florida Administrative Code." The Florida

639

Administrative Code shall contain all rules adopted by each

640

agency, citing the grant of specific rulemaking authority and the

641

specific law implemented pursuant to which each rule was adopted,

642

all history notes as authorized in s. 120.545(8) s. 120.545(9),

643

and complete indexes to all rules contained in the code.

644

Supplementation shall be made as often as practicable, but at

645

least monthly. The department may contract with a publishing firm

646

for the publication, in a timely and useful form, of the Florida

647

Administrative Code; however, the department shall retain

648

responsibility for the code as provided in this section. This

649

publication shall be the official compilation of the

650

administrative rules of this state. The Department of State shall

651

retain the copyright over the Florida Administrative Code.

652

2. Rules general in form but applicable to only one school

653

district, community college district, or county, or a part

654

thereof, or state university rules relating to internal personnel

655

or business and finance shall not be published in the Florida

656

Administrative Code. Exclusion from publication in the Florida

657

Administrative Code shall not affect the validity or

658

effectiveness of such rules.

659

3. At the beginning of the section of the code dealing with

660

an agency that files copies of its rules with the department, the

661

department shall publish the address and telephone number of the

662

executive offices of each agency, the manner by which the agency

663

indexes its rules, a listing of all rules of that agency excluded

664

from publication in the code, and a statement as to where those

665

rules may be inspected.

666

4. Forms shall not be published in the Florida

667

Administrative Code; but any form which an agency uses in its

668

dealings with the public, along with any accompanying

669

instructions, shall be filed with the committee before it is

670

used. Any form or instruction which meets the definition of

671

"rule" provided in s. 120.52 shall be incorporated by reference

672

into the appropriate rule. The reference shall specifically state

673

that the form is being incorporated by reference and shall

674

include the number, title, and effective date of the form and an

675

explanation of how the form may be obtained. Each form created by

676

an agency which is incorporated by reference in a rule notice of

677

which is given under s. 120.54(3)(a) after December 31, 2007,

678

must clearly display the number, title, and effective date of the

679

form and the number of the rule in which the form is

680

incorporated.

681

(d) Prescribe by rule the style and form required for

682

rules, notices, and other materials submitted for filing and

683

establish the form for their certification.

684

(5) Any publication of a proposed rule promulgated by an

685

agency, whether published in the Florida Administrative Code or

686

elsewhere, shall include, along with the rule, the name of the

687

person or persons originating such rule, the name of the agency

688

head supervisor or person who approved the rule, and the date

689

upon which the rule was approved.

690

Section 9. For the 2009-2010 fiscal year only and

691

notwithstanding s. 120.55(8)(b), Florida Statutes, the

692

unencumbered balance in the Records Management Trust Fund for

693

fees collected pursuant to chapter 120, Florida Statutes, may not

694

exceed $500,000 at the beginning of the fiscal year, and any

695

excess shall be transferred to the General Revenue Fund.

696

Section 10. Effective July 1, 2010, paragraph (a) of

697

subsection (1) and subsection (2) of section 120.55, Florida

698

Statutes, as amended by this act, are amended to read:

699

120.55 Publication.--

700

(1) The Department of State shall:

701

(a)1. Through a continuous revision system, compile and

702

publish electronically, on an Internet website managed by the

703

department, the "Florida Administrative Code." The Florida

704

Administrative Code shall contain all rules adopted by each

705

agency, citing the grant of rulemaking authority and the specific

706

law implemented pursuant to which each rule was adopted, all

707

history notes as authorized in s. 120.545(8), and complete

708

indexes to all rules contained in the code, and any other

709

material required or authorized by law or deemed useful by the

710

department. The electronic code shall display each rule chapter

711

currently in effect in browse mode and allow full text search of

712

the code and each rule chapter. Supplementation shall be made as

713

often as practicable, but at least monthly. The department shall

714

publish a printed version of the Florida Administrative Code and

715

may contract with a publishing firm for such printed the

716

publication, in a timely and useful form, of the Florida

717

Administrative Code; however, the department shall retain

718

responsibility for the code as provided in this section.

719

Supplementation of the printed code shall be made as often as

720

practicable, but at least monthly. The printed This publication

721

shall be the official compilation of the administrative rules of

722

this state. The Department of State shall retain the copyright

723

over the Florida Administrative Code.

724

2. Rules general in form but applicable to only one school

725

district, community college district, or county, or a part

726

thereof, or state university rules relating to internal personnel

727

or business and finance shall not be published in the Florida

728

Administrative Code. Exclusion from publication in the Florida

729

Administrative Code shall not affect the validity or

730

effectiveness of such rules.

731

3. At the beginning of the section of the code dealing with

732

an agency that files copies of its rules with the department, the

733

department shall publish the address and telephone number of the

734

executive offices of each agency, the manner by which the agency

735

indexes its rules, a listing of all rules of that agency excluded

736

from publication in the code, and a statement as to where those

737

rules may be inspected.

738

4. Forms shall not be published in the Florida

739

Administrative Code; but any form which an agency uses in its

740

dealings with the public, along with any accompanying

741

instructions, shall be filed with the committee before it is

742

used. Any form or instruction which meets the definition of

743

"rule" provided in s. 120.52 shall be incorporated by reference

744

into the appropriate rule. The reference shall specifically state

745

that the form is being incorporated by reference and shall

746

include the number, title, and effective date of the form and an

747

explanation of how the form may be obtained. Each form created by

748

an agency which is incorporated by reference in a rule notice of

749

which is given under s. 120.54(3)(a) after December 31, 2007,

750

must clearly display the number, title, and effective date of the

751

form and the number of the rule in which the form is

752

incorporated.

753

5. The department shall allow material incorporated by

754

reference to be filed in electronic form as prescribed by

755

department rule. When a rule is filed for adoption with

756

incorporated material in electronic form, the department's

757

publication of the Florida Administrative Code on its Internet

758

website must contain a hyperlink from the incorporating reference

759

in the rule directly to that material. The department may not

760

allow hyperlinks from rules in the Florida Administrative Code to

761

any material other than that filed with and maintained by the

762

department, but may allow hyperlinks to incorporated material

763

maintained by the department from the adopting agency's website

764

or other sites.

765

(2) The Florida Administrative Weekly Internet website must

766

allow users to:

767

(a) Search for notices by type, publication date, rule

768

number, word, subject, and agency;

769

(b) Search a database that makes available all notices

770

published on the website for a period of at least 5 years;

771

772

selected notices to be sent out before or concurrently with

773

weekly publication of the printed and electronic Florida

774

Administrative Weekly. Such notification must include in the text

775

of the e-mail a summary of the content of each notice;

776

(d) View agency forms and other materials submitted to the

777

department in electronic form and incorporated by reference in

778

proposed rules; and

779

(e) Comment on proposed rules.

780

Section 11. Paragraphs (a) and (b) of subsection (2) of

781

section 120.56, Florida Statutes, are amended to read:

782

120.56 Challenges to rules.--

783

(2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--

784

(a) Any substantially affected person may seek an

785

administrative determination of the invalidity of any proposed

786

rule by filing a petition seeking such a determination with the

787

division within 21 days after the date of publication of the

788

notice required by s. 120.54(3)(a), within 10 days after the

789

final public hearing is held on the proposed rule as provided by

790

s. 120.54(3)(e)2. s. 120.54(3)(c), within 20 days after the

791

preparation of a statement of estimated regulatory costs required

792

pursuant to s. 120.541, if applicable, has been provided to all

793

persons who submitted a lower cost regulatory alternative and

794

made available to the public, or within 20 days after the date of

795

publication of the notice required by s. 120.54(3)(d). The

796

petition shall state with particularity the objections to the

797

proposed rule and the reasons that the proposed rule is an

798

invalid exercise of delegated legislative authority. The

799

petitioner has the burden of going forward. The agency then has

800

the burden to prove by a preponderance of the evidence that the

801

proposed rule is not an invalid exercise of delegated legislative

802

authority as to the objections raised. Any person who is

803

substantially affected by a change in the proposed rule may seek

804

a determination of the validity of such change. Any person not

805

substantially affected by the proposed rule as initially noticed,

806

but who is substantially affected by the rule as a result of a

807

change, may challenge any provision of the rule and is not

808

limited to challenging the change to the proposed rule.

809

(b) The administrative law judge may declare the proposed

810

rule wholly or partly invalid. Unless the decision of the

811

administrative law judge is reversed on appeal, the proposed rule

812

or provision of a proposed rule declared invalid shall not be

813

adopted. After a petition for administrative determination has

814

been filed However, the agency may proceed with all other steps

815

in the rulemaking process, including the holding of a factfinding

816

hearing. In the event part of a proposed rule is declared

817

invalid, the adopting agency may, in its sole discretion,

818

withdraw the proposed rule in its entirety. The agency whose

819

proposed rule has been declared invalid in whole or part shall

820

give notice of the decision in the first available issue of the

821

Florida Administrative Weekly.

822

Section 12. Effective January 1, 2009, subsection (4) of

823

section 120.56, Florida Statutes, is amended to read:

824

120.56 Challenges to rules.--

825

(4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES; SPECIAL

826

PROVISIONS.--

827

(a) Any person substantially affected by an agency

828

statement may seek an administrative determination that the

829

statement violates s. 120.54(1)(a). The petition shall include

830

the text of the statement or a description of the statement and

831

shall state with particularity facts sufficient to show that the

832

statement constitutes a rule under s. 120.52 and that the agency

833

has not adopted the statement by the rulemaking procedure

834

provided by s. 120.54.

835

(b) The administrative law judge may extend the hearing

836

date beyond 30 days after assignment of the case for good cause.

837

Upon notification to the administrative law judge provided before

838

the final hearing that the agency has published a notice of

839

rulemaking under s. 120.54(3), such notice shall automatically

840

operate as a stay of proceedings pending adoption of the

841

statement as a rule. The administrative law judge may vacate the

842

stay for good cause shown. A stay of proceedings pending

843

rulemaking shall remain in effect so long as the agency is

844

proceeding expeditiously and in good faith to adopt the statement

845

as a rule. If a hearing is held and the petitioner proves the

846

allegations of the petition, the agency shall have the burden of

847

proving that rulemaking is not feasible or not and practicable

848

under s. 120.54(1)(a).

849

850

or part of a statement violates s. 120.54(1)(a). The decision of

851

the administrative law judge shall constitute a final order. The

852

division shall transmit a copy of the final order to the

853

Department of State and the committee. The Department of State

854

shall publish notice of the final order in the first available

855

issue of the Florida Administrative Weekly.

856

(d) If When an administrative law judge enters a final

857

order that all or part of an agency statement violates s.

858

120.54(1)(a), the agency shall immediately discontinue all

859

reliance upon the statement or any substantially similar

860

statement as a basis for agency action. This paragraph shall not

861

be construed to impair the obligation of contracts existing at

862

the time the final order is entered.

863

(e)1. If, prior to a final hearing to determine whether all

864

or part of any agency statement violates s. 120.54(1)(a), an

865

agency publishes, pursuant to s. 120.54(3)(a), proposed rules

866

that address the statement, then for purposes of this section, a

867

presumption is created that the agency is acting expeditiously

868

and in good faith to adopt rules that address the statement, and

869

the agency shall be permitted to rely upon the statement or a

870

substantially similar statement as a basis for agency action if

871

the statement meets the requirements of s. 120.57(1)(e).

872

2. If, prior to the final hearing to determine whether all

873

or part of an agency statement violates s. 120.54(1)(a), an

874

agency publishes a notice of rule development which addresses the

875

statement pursuant to s. 120.54(2), or certifies that such a

876

notice has been transmitted to the Florida Administrative Weekly

877

for publication, then such publication shall constitute good

878

cause for the granting of a stay of the proceedings and a

879

continuance of the final hearing for 30 days. If the agency

880

publishes proposed rules within this 30-day period or any

881

extension of that period granted by an administrative law judge

882

upon showing of good cause, then the administrative law judge

883

shall place the case in abeyance pending the outcome of

884

rulemaking and any proceedings involving challenges to proposed

885

rules pursuant to subsection (2).

886

3. If, following the commencement of the final hearing and

887

prior to entry of a final order that all or part of an agency

888

statement violates s. 120.54(1)(a), an agency publishes, pursuant

889

to s. 120.54(3)(a), proposed rules that address the statement and

890

proceeds expeditiously and in good faith to adopt rules that

891

address the statement, the agency shall be permitted to rely upon

892

the statement or a substantially similar statement as a basis for

893

agency action if the statement meets the requirements of s.

894

120.57(1)(e).

895

4. If an agency fails to adopt rules that address the

896

statement within 180 days after publishing proposed rules, for

897

purposes of this subsection, a presumption is created that the

898

agency is not acting expeditiously and in good faith to adopt

899

rules. If the agency's proposed rules are challenged pursuant to

900

subsection (2), the 180-day period for adoption of rules is

901

tolled until a final order is entered in that proceeding.

902

(e)5. If the proposed rules addressing the challenged

903

statement are determined to be an invalid exercise of delegated

904

legislative authority as defined in s. 120.52(8)(b)-(f), the

905

agency must immediately discontinue reliance on the statement and

906

any substantially similar statement until the rules addressing

907

the subject are properly adopted, and the administrative law

908

judge shall enter a final order to that effect.

909

(f) All proceedings to determine a violation of s.

910

120.54(1)(a) shall be brought pursuant to this subsection. A

911

proceeding pursuant to this subsection may be consolidated with a

912

proceeding under subsection (3) or under any other section of

913

this chapter. Nothing in This paragraph does not shall be

914

construed to prevent a party whose substantial interests have

915

been determined by an agency action from bringing a proceeding

916

pursuant to s. 120.57(1)(e).

917

Section 13. Effective January 1, 2009, paragraph (e) of

918

subsection (1) of section 120.57, Florida Statutes, is amended to

919

read:

920

120.57 Additional procedures for particular cases.--

921

(1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING

922

DISPUTED ISSUES OF MATERIAL FACT.--

923

(e)1. An agency or an administrative law judge may not base

924

Any agency action that determines the substantial interests of a

925

party and that is based on an unadopted rule. The administrative

926

law judge shall determine whether an agency statement constitutes

927

an unadopted rule. This subparagraph does not preclude

928

application of adopted rules and applicable provisions of law to

929

the facts unadopted rule is subject to de novo review by an

930

administrative law judge.

931

2. Notwithstanding subparagraph 1., if an agency

932

demonstrates that the statute being implemented directs it to

933

adopt rules, that the agency has not had time to adopt those

934

rules because the requirement was so recently enacted, and that

935

the agency has initiated rulemaking and is proceeding

936

expeditiously and in good faith to adopt the required rules, then

937

the agency's action may be based upon those unadopted rules,

938

subject to de novo review by the administrative law judge. The

939

agency action shall not be presumed valid or invalid. The agency

940

must demonstrate that the unadopted rule:

941

a. Is within the powers, functions, and duties delegated by

942

the Legislature or, if the agency is operating pursuant to

943

authority derived from the State Constitution, is within that

944

authority;

945

b. Does not enlarge, modify, or contravene the specific

946

provisions of law implemented;

947

c. Is not vague, establishes adequate standards for agency

948

decisions, or does not vest unbridled discretion in the agency;

949

d. Is not arbitrary or capricious. A rule is arbitrary if

950

it is not supported by logic or the necessary facts; a rule is

951

capricious if it is adopted without thought or reason or is

952

irrational;

953

e. Is not being applied to the substantially affected party

954

without due notice; and

955

f. Does not impose excessive regulatory costs on the

956

regulated person, county, or city.

957

3. The recommended and final orders in any proceeding shall

958

be governed by the provisions of paragraphs (k) and (l), except

959

that the administrative law judge's determination regarding an

960

the unadopted rule under subparagraph 1. or 2. shall not be

961

rejected by the agency unless the agency first determines from a

962

review of the complete record, and states with particularity in

963

the order, that such determination is clearly erroneous or does

964

not comply with essential requirements of law. In any proceeding

965

for review under s. 120.68, if the court finds that the agency's

966

rejection of the determination regarding the unadopted rule does

967

not comport with the provisions of this subparagraph, the agency

968

action shall be set aside and the court shall award to the

969

prevailing party the reasonable costs and a reasonable attorney's

970

fee for the initial proceeding and the proceeding for review.

971

Section 14. Effective January 1, 2009, subsections (2),

972

(3), and (4) of section 120.595, Florida Statutes, are amended to

973

read:

974

120.595 Attorney's fees.--

975

(2) CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO SECTION

976

120.56(2).--If the appellate court or administrative law judge

977

declares a proposed rule or portion of a proposed rule invalid

978

pursuant to s. 120.56(2), a judgment or order shall be rendered

979

against the agency for reasonable costs and reasonable attorney's

980

fees, unless the agency demonstrates that its actions were

981

substantially justified or special circumstances exist which

982

would make the award unjust. An agency's actions are

983

"substantially justified" if there was a reasonable basis in law

984

and fact at the time the actions were taken by the agency. If the

985

agency prevails in the proceedings, the appellate court or

986

administrative law judge shall award reasonable costs and

987

reasonable attorney's fees against a party if the appellate court

988

or administrative law judge determines that a party participated

989

in the proceedings for an improper purpose as defined by

990

paragraph (1)(e). No award of attorney's fees as provided by this

991

subsection shall exceed $50,000 $15,000.

992

(3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO SECTION

993

120.56(3) AND (5).--If the appellate court or administrative law

994

judge declares a rule or portion of a rule invalid pursuant to s.

995

120.56(3) or s. 120.56(5), a judgment or order shall be rendered

996

against the agency for reasonable costs and reasonable attorney's

997

fees, unless the agency demonstrates that its actions were

998

substantially justified or special circumstances exist which

999

would make the award unjust. An agency's actions are

1000

"substantially justified" if there was a reasonable basis in law

1001

and fact at the time the actions were taken by the agency. If the

1002

agency prevails in the proceedings, the appellate court or

1003

administrative law judge shall award reasonable costs and

1004

reasonable attorney's fees against a party if the appellate court

1005

or administrative law judge determines that a party participated

1006

in the proceedings for an improper purpose as defined by

1007

paragraph (1)(e). No award of attorney's fees as provided by this

1008

subsection shall exceed $50,000 $15,000.

1009

(4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

1010

120.56(4).--

1011

(a) If the appellate court or administrative law judge

1012

determines Upon entry of a final order that all or part of an

1013

agency statement violates s. 120.54(1)(a), or that the agency

1014

must immediately discontinue reliance on the statement and any

1015

substantially similar statement pursuant to s. 120.56(4)(e), a

1016

judgment or order shall be entered against the agency for the

1017

administrative law judge shall award reasonable costs and

1018

reasonable attorney's fees to the petitioner, unless the agency

1019

demonstrates that the statement is required by the Federal

1020

Government to implement or retain a delegated or approved program

1021

or to meet a condition to receipt of federal funds.

1022

(b) Upon notification to the administrative law judge

1023

provided before the final hearing that the agency has published a

1024

notice of rulemaking under s. 120.54(3)(a), such notice shall

1025

automatically operate as a stay of proceedings pending

1026

rulemaking. The administrative law judge may vacate the stay for

1027

good cause shown. A stay of proceedings under this paragraph

1028

remains in effect so long as the agency is proceeding

1029

expeditiously and in good faith to adopt the statement as a rule.

1030

The administrative law judge shall award reasonable costs and

1031

reasonable attorney's fees accrued by the petitioner prior to the

1032

date the notice was published, unless the agency proves to the

1033

administrative law judge that it did not know and should not have

1034

known that the statement was an unadopted rule. Attorneys' fees

1035

and costs under paragraphs (a) and (b) shall be awarded only upon

1036

a finding that the agency received notice that the statement may

1037

constitute an unadopted rule at least 30 days before a petition

1038

under s. 120.56(4) was filed and that the agency failed to

1039

publish the required notice of rulemaking pursuant to s.

1040

120.54(3) that addresses the statement within that 30-day period.

1041

Notice to the agency may be satisfied by its receipt of a copy of

1042

the s. 120.56(4) petition, a notice or other paper containing

1043

substantially the same information, or a petition filed pursuant

1044

to s. 120.54(7). An award of attorney's fees as provided by this

1045

paragraph may not exceed $50,000.

1046

(c)(b) Notwithstanding the provisions of chapter 284, an

1047

award shall be paid from the budget entity of the secretary,

1048

executive director, or equivalent administrative officer of the

1049

agency, and the agency shall not be entitled to payment of an

1050

award or reimbursement for payment of an award under any

1051

provision of law.

1052

(d) If the agency prevails in the proceedings, the

1053

appellate court or administrative law judge shall award

1054

reasonable costs and attorney's fees against a party if the

1055

appellate court or administrative law judge determines that the

1056

party participated in the proceedings for an improper purpose as

1057

defined in paragraph (1)(e) or that the party or the party's

1058

attorney knew or should have known that a claim was not supported

1059

by the material facts necessary to establish the claim or would

1060

not be supported by the application of then-existing law to those

1061

material facts.

1062

Section 15. Subsection (1) and paragraph (c) of subsection

1063

(2) of section 120.569, Florida Statutes, are amended to read:

1064

120.569 Decisions which affect substantial interests.--

1065

(1) The provisions of this section apply in all proceedings

1066

in which the substantial interests of a party are determined by

1067

an agency, unless the parties are proceeding under s. 120.573 or

1068

s. 120.574. Unless waived by all parties, s. 120.57(1) applies

1069

whenever the proceeding involves a disputed issue of material

1070

fact. Unless otherwise agreed, s. 120.57(2) applies in all other

1071

cases. If a disputed issue of material fact arises during a

1072

proceeding under s. 120.57(2), then, unless waived by all

1073

parties, the proceeding under s. 120.57(2) shall be terminated

1074

and a proceeding under s. 120.57(1) shall be conducted. Parties

1075

shall be notified of any order, including a final order. Unless

1076

waived, a copy of the order shall be delivered or mailed to each

1077

party or the party's attorney of record at the address of record.

1078

Each notice shall inform the recipient of any administrative

1079

hearing or judicial review that is available under this section,

1080

s. 120.57, or s. 120.68; shall indicate the procedure which must

1081

be followed to obtain the hearing or judicial review; and shall

1082

state the time limits which apply.

1083

(2)

1084

1085

for hearing shall include those items required by the uniform

1086

rules adopted pursuant to s. 120.54(5)(b) s. 120.54(5)(b)4. Upon

1087

the receipt of a petition or request for hearing, the agency

1088

shall carefully review the petition to determine if it contains

1089

all of the required information. A petition shall be dismissed if

1090

it is not in substantial compliance with these requirements or it

1091

has been untimely filed. Dismissal of a petition shall, at least

1092

once, be without prejudice to petitioner's filing a timely

1093

amended petition curing the defect, unless it conclusively

1094

appears from the face of the petition that the defect cannot be

1095

cured. The agency shall promptly give written notice to all

1096

parties of the action taken on the petition, shall state with

1097

particularity its reasons if the petition is not granted, and

1098

shall state the deadline for filing an amended petition if

1099

applicable. This paragraph does not eliminate the availability of

1100

equitable tolling as a defense to the untimely filing of a

1101

petition.

1102

Section 16. Subsection (2) of section 120.74, Florida

1103

Statutes, is amended to read:

1104

120.74 Agency review, revision, and report.--

1105

(2) Beginning October 1, 1997, and by October 1 of every

1106

other year thereafter, the head of each agency shall file a

1107

report with the President of the Senate, the Speaker of the House

1108

of Representatives, and the committee, with a copy to each

1109

appropriate standing committee of the Legislature, which

1110

certifies that the agency has complied with the requirements of

1111

this section subsection. The report must specify any changes made

1112

to its rules as a result of the review and, when appropriate,

1113

recommend statutory changes that will promote efficiency, reduce

1114

paperwork, or decrease costs to government and the private

1115

sector. The report must identify the types of cases or disputes

1116

in which the agency is involved which should be conducted under

1117

the summary hearing process described in s. 120.574.

1118

Section 17. Subsection (11) of section 120.80, Florida

1119

Statutes, is amended to read:

1120

120.80 Exceptions and special requirements; agencies.--

1121

(11) NATIONAL GUARD.--Notwithstanding s. 120.52(16) s.

1122

120.52(15), the enlistment, organization, administration,

1123

equipment, maintenance, training, and discipline of the militia,

1124

National Guard, organized militia, and unorganized militia, as

1125

provided by s. 2, Art. X of the State Constitution, are not rules

1126

as defined by this chapter.

1127

Section 18. Paragraph (c) of subsection (1) and paragraph

1128

(a) of subsection (3) of section 120.81, Florida Statutes, are

1129

amended to read:

1130

120.81 Exceptions and special requirements; general

1131

areas.--

1132

(1) EDUCATIONAL UNITS.--

1133

1134

test scoring criteria, or testing procedures relating to student

1135

assessment which are developed or administered by the Department

1136

of Education pursuant to s. 1003.43, s. 1003.438, s. 1008.22, or

1137

s. 1008.25, or any other statewide educational tests required by

1138

law, are not rules.

1139

(3) PRISONERS AND PAROLEES.--

1140

(a) Notwithstanding s. 120.52(13) s. 120.52(12), prisoners,

1141

as defined by s. 944.02, shall not be considered parties in any

1142

proceedings other than those under s. 120.54(3)(c) or (7), and

1143

may not seek judicial review under s. 120.68 of any other agency

1144

action. Prisoners are not eligible to seek an administrative

1145

determination of an agency statement under s. 120.56(4). Parolees

1146

shall not be considered parties for purposes of agency action or

1147

judicial review when the proceedings relate to the rescission or

1148

revocation of parole.

1149

Section 19. Paragraph (f) of subsection (2) of section

1150

409.175, Florida Statutes, is amended to read:

1151

409.175 Licensure of family foster homes, residential

1152

child-caring agencies, and child-placing agencies; public records

1153

exemption.--

1154

(2) As used in this section, the term:

1155

(f) "License" means "license" as defined in s. 120.52(10)

1156

s. 120.52(9). A license under this section is issued to a family

1157

foster home or other facility and is not a professional license

1158

of any individual. Receipt of a license under this section shall

1159

not create a property right in the recipient. A license under

1160

this act is a public trust and a privilege, and is not an

1161

entitlement. This privilege must guide the finder of fact or

1162

trier of law at any administrative proceeding or court action

1163

initiated by the department.

1164

Section 20. Paragraph (a) of subsection (1) of section

1165

420.9072, Florida Statutes, is amended to read:

1166

420.9072 State Housing Initiatives Partnership

1167

Program.--The State Housing Initiatives Partnership Program is

1168

created for the purpose of providing funds to counties and

1169

eligible municipalities as an incentive for the creation of local

1170

housing partnerships, to expand production of and preserve

1171

affordable housing, to further the housing element of the local

1172

government comprehensive plan specific to affordable housing, and

1173

to increase housing-related employment.

1174

(1)(a) In addition to the legislative findings set forth in

1175

s. 420.6015, the Legislature finds that affordable housing is

1176

most effectively provided by combining available public and

1177

private resources to conserve and improve existing housing and

1178

provide new housing for very-low-income households, low-income

1179

households, and moderate-income households. The Legislature

1180

intends to encourage partnerships in order to secure the benefits

1181

of cooperation by the public and private sectors and to reduce

1182

the cost of housing for the target group by effectively combining

1183

all available resources and cost-saving measures. The Legislature

1184

further intends that local governments achieve this combination

1185

of resources by encouraging active partnerships between

1186

government, lenders, builders and developers, real estate

1187

professionals, advocates for low-income persons, and community

1188

groups to produce affordable housing and provide related

1189

services. Extending the partnership concept to encompass

1190

cooperative efforts among small counties as defined in s.

1191

120.52(19) s. 120.52(17), and among counties and municipalities

1192

is specifically encouraged. Local governments are also intended

1193

to establish an affordable housing advisory committee to

1194

recommend monetary and nonmonetary incentives for affordable

1195

housing as provided in s. 420.9076.

1196

Section 21. Subsection (7) of section 420.9075, Florida

1197

Statutes, is amended to read:

1198

420.9075 Local housing assistance plans; partnerships.--

1199

(7) The moneys deposited in the local housing assistance

1200

trust fund shall be used to administer and implement the local

1201

housing assistance plan. The cost of administering the plan may

1202

not exceed 5 percent of the local housing distribution moneys and

1203

program income deposited into the trust fund. A county or an

1204

eligible municipality may not exceed the 5-percent limitation on

1205

administrative costs, unless its governing body finds, by

1206

resolution, that 5 percent of the local housing distribution plus

1207

5 percent of program income is insufficient to adequately pay the

1208

necessary costs of administering the local housing assistance

1209

plan. The cost of administering the program may not exceed 10

1210

percent of the local housing distribution plus 5 percent of

1211

program income deposited into the trust fund, except that small

1212

counties, as defined in s. 120.52(19) s. 120.52(17), and eligible

1213

municipalities receiving a local housing distribution of up to

1214

$350,000 may use up to 10 percent of program income for

1215

administrative costs.

1216

Section 22. For the 2008-2009 fiscal year, the nonrecurring

1217

sum of $50,000 is appropriated from the Records Management Trust

1218

Fund to the Department of State, and for the 2009-2010 fiscal

1219

year, the nonrecurring sum of $401,000 is appropriated from the

1220

Records Management Trust Fund to the Department of State for the

1221

purposes of carrying out the provisions of this act.

1222

Section 23. Except as otherwise expressly provided in this

1223

act, this act shall take effect July 1, 2008.

1224

1225

================ T I T L E A M E N D M E N T ================

1226

And the title is amended as follows:

1227

Delete everything before the enacting clause

1228

and insert:

1229

A bill to be entitled

1230

An act relating to administrative procedures; providing

1231

a short title; amending s. 120.52, F.S.; redefining the

1232

term "invalid exercise of delegated legislative

1233

authority" to remove a limitation on the construction

1234

of statutory language granting rulemaking authority;

1235

defining the terms "law implemented," "rulemaking

1236

authority," and "unadopted rule"; amending s. 120.53,

1237

F.S.; authorizing agencies to transmit agency orders

1238

electronically to the Division of Administrative

1239

Hearings; amending s. 120.536, F.S.; revising

1240

guidelines for the construction of statutory language

1241

granting rulemaking authority; amending s. 120.54,

1242

F.S.; prescribing limits and guidelines with respect to

1243

the incorporation of material by reference; prescribing

1244

requirements for material being incorporated by

1245

reference; prohibiting an agency head from delegating

1246

or transferring certain specified rulemaking

1247

responsibilities; revising the information required in

1248

notices of proposed actions; providing additional

1249

procedures for rule-adoption hearings; revising

1250

requirements for filing rules; requiring that material

1251

incorporated by reference be published by the agency

1252

when adopting emergency rules; revising provisions with

1253

respect to petitions to initiate rulemaking; amending

1254

s. 120.545, F.S.; revising duties and procedures of the

1255

Administrative Procedures Committee and agencies with

1256

respect to review of agency rules; deleting procedures

1257

for agency election to modify, withdraw, amend, or

1258

repeal a proposed rule; providing for the effect of the

1259

failure of an agency to respond to a committee

1260

objection to a statement of estimated regulatory costs

1261

within the time prescribed; deleting a requirement that

1262

the Department of State publish final legislative

1263

action; amending s. 120.55, F.S.; requiring the

1264

department to prescribe by rule the content

1265

requirements for rules, notices, and other materials;

1266

revising for a specified period the limit for the

1267

unencumbered balance in the Records Management Trust

1268

Fund at the beginning of the fiscal year for fees

1269

collected under ch. 120, F.S.; providing for the

1270

transfer of excess funds; requiring electronic

1271

publication of the Florida Administrative Code;

1272

prescribing requirements with respect to the content of

1273

such electronic publication; providing for filing

1274

information incorporated by reference in electronic

1275

form; providing requirements for the Florida

1276

Administrative Weekly Internet website; amending s.

1277

120.56, F.S., relating to challenges to rules;

1278

conforming a cross-reference; revising procedures for

1279

administrative determinations of the invalidity of

1280

rules; requiring an agency to discontinue reliance on a

1281

statement under certain circumstances; providing an

1282

exception; deleting certain provisions relating to

1283

actions before a final hearing is held; amending s.

1284

120.57, F.S.; revising procedures applicable to

1285

hearings involving disputed issues of material fact;

1286

prohibiting enforcement of unadopted agency rules under

1287

certain circumstances; amending s. 120.595, F.S.;

1288

increasing the limitation on attorney's fees in

1289

challenges to proposed agency rules or existing agency

1290

rules; providing for an award of reasonable costs and

1291

attorney's fees accrued by a petitioner under certain

1292

circumstances; providing for an award of fees and costs

1293

if the agency prevails and a party participated for an

1294

improper purpose; amending s. 120.569, F.S.; requiring

1295

that certain administrative proceedings be terminated

1296

and subsequently reinstated under different provisions

1297

of law if a disputed issue of material fact arises

1298

during the proceeding; conforming a cross-reference;

1299

amending s. 120.74, F.S.; revising reporting

1300

requirement for agency heads; amending ss. 120.80,

1301

120.81, 409.175, 420.9072, and 420.9075, F.S.;

1302

conforming cross-references; providing an

1303

appropriation; providing effective dates.

3/24/2008 5:48:00 PM 4-05615-08

CODING: Words stricken are deletions; words underlined are additions.