Florida Senate - 2008 (Reformatted) SB 704

By Senators Bennett and Gaetz

21-02370C-08 2008704__

A bill to be entitled

An act relating to administrative procedures; providing a

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

"invalid exercise of delegated legislative authority" to

remove a limitation on the construction of statutory

language granting rulemaking authority; defining the terms

"law implemented," "rulemaking authority," and "unadopted

rule"; amending s. 120.536, F.S.; revising guidelines for

the construction of statutory language granting rulemaking

authority; amending s. 120.54, F.S.; prescribing limits

and guidelines with respect to the incorporation of

material by reference; prescribing requirements for

material being incorporated by reference; prohibiting an

agency head from delegating or transferring certain

specified rulemaking responsibilities; revising the

information required in notices of proposed actions;

providing additional procedures for rule-adoption

hearings; revising requirements for filing rules;

requiring that material incorporated by reference be

published by the agency when adopting emergency rules;

revising provisions with respect to petitions to initiate

rulemaking; amending s. 120.545, F.S.; revising duties and

procedures of the Administrative Procedures Committee and

agencies with respect to review of agency rules;

authorizing the committee to request from an agency

information to examine unadopted agency statements;

providing procedures for an agency following an objection

to an unadopted rule of an agency; deleting procedures for

agency election to modify, withdraw, amend, or repeal a

proposed rule; providing for the effect of the failure of

an agency to respond to a committee objection to a

statement of estimated regulatory costs or to a committee

objection to an unadopted rule within the time prescribed;

deleting a requirement that the Department of State

publish final legislative action; amending s. 120.55,

F.S.; requiring the department to prescribe by rule the

content requirements for rules, notices, and other

materials; revising for a specified period the limit for

the unencumbered balance in the Records Management Trust

Fund at the beginning of the fiscal year for fees

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

of excess funds; requiring electronic publication of the

Florida Administrative Code; prescribing requirements with

respect to the content of such electronic publication;

providing for filing information incorporated by reference

in electronic form; providing requirements for the Florida

Administrative Weekly Internet website; amending s.

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

a cross-reference; revising procedures for administrative

determinations of the invalidity of rules; requiring an

agency to discontinue reliance on a statement under

certain circumstances; providing an exception; deleting

certain provisions relating to actions before a final

hearing is held; amending s. 120.57, F.S.; revising

procedures applicable to hearings involving disputed

issues of material fact; prohibiting enforcement of

unadopted agency rules under certain circumstances;

amending s. 120.595, F.S.; increasing the limitation on

attorney's fees in challenges to proposed agency rules or

existing agency rules; providing for an award of

reasonable costs and attorney's fees accrued by a

petitioner under certain circumstances; providing for an

award of fees and costs if the agency prevails and a party

participated for an improper purpose; amending s. 120.569,

F.S.; requiring that certain administrative proceedings be

terminated and subsequently reinstated under different

provisions of law if a disputed issue of material fact

arises during the proceeding; conforming a cross-

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

requirement for agency heads; amending ss. 120.80, 120.81,

409.175, 420.9072, and 420.9075, F.S.; conforming cross-

references; providing an appropriation; providing

effective dates.

Be It Enacted by the Legislature of the State of Florida:

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.;

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

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standards for agency decisions, or vests unbridled discretion in

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the agency;

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

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

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

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or is irrational; or

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(f) The rule imposes regulatory costs on the regulated

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

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less costly alternatives that substantially accomplish the

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statutory objectives.

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A grant of rulemaking authority is necessary but not sufficient

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

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

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implement or interpret the specific powers and duties granted by

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

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

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enabling legislation and is not arbitrary and capricious or is

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

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agency have the authority to implement statutory provisions

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setting forth general legislative intent or policy. Statutory

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language granting rulemaking authority or generally describing

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the powers and functions of an agency shall be construed to

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extend no further than implementing or interpreting the specific

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powers and duties conferred by the same statute.

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(9) "Law implemented" means the statutory language being

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carried out or interpreted by an agency through rulemaking.

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(17) "Rulemaking authority" means statutory language that

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explicitly authorizes or requires an agency to adopt, develop,

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establish, or otherwise create any statement coming within the

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definition of the term "rule."

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

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

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pursuant to the requirements of s. 120.54.

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Section 3. Subsection (1) of section 120.536, Florida

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Statutes, is amended to read:

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120.536 Rulemaking authority; repeal; challenge.--

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

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

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

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that implement or interpret the specific powers and duties

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granted by the enabling statute. No agency shall have authority

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

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purpose of the enabling legislation and is not arbitrary and

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

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nor shall an agency have the authority to implement statutory

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provisions setting forth general legislative intent or policy.

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Statutory language granting rulemaking authority or generally

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describing the powers and functions of an agency shall be

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construed to extend no further than implementing or interpreting

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the specific powers and duties conferred by the same statute.

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Section 4. 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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subsection (7) of section 120.54, Florida Statutes, are amended,

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and paragraph (k) is added to subsection (1) of that section, 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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(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. Material

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incorporated by reference in a rule may not incorporate

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additional material by reference unless the rule specifically

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identifies the additional material.

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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) Rulemaking responsibilities of an agency head under

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subparagraph (3)(a)1., subparagraph (3)(e)1., or subparagraph

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(3)(e)6. may not be 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), the board or other collegial body

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shall conduct the requested public hearing 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 existing rule which the agency has not adopted by the

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rulemaking procedures or requirements set forth in this chapter,

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the agency shall, not later than 30 days following the date of

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filing a petition, initiate rulemaking, or provide notice in the

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Florida Administrative Weekly that the agency will hold a public

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hearing on the petition within 30 days after publication of the

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

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comments of the public directed to the agency rule which has not

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been adopted by the rulemaking procedures or requirements of this

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

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public interest is served adequately by the application of the

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

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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 5. 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) or for examination of an unadopted

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agency statement. The committee shall consult with legislative

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standing committees having with jurisdiction over the subject

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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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(d) If the rule is unadopted:

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1. File notice pursuant to s. 120.54(3)(a) of intent to

524

adopt the rule;

525

2. File notice for publication in the Florida

526

Administrative Weekly that the agency has abandoned all reliance

527

upon the statement or any substantially similar statement as a

528

basis for agency action; or

529

3. Notify the committee in writing that the agency refuses

530

to adopt the rule or to abandon all reliance upon the statement

531

or any substantially similar statement as a basis for agency

532

action.

533

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

534

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

535

as are necessary to meet the objection and shall resubmit the

536

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

537

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

538

objection by publishing a notice of change in the first available

539

issue of the Florida Administrative Weekly, but shall not be

540

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

541

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

542

shall notify the committee in writing and shall initiate the

543

amendment procedure by giving notice in the next available issue

544

of the Florida Administrative Weekly. The committee shall give

545

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

546

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

547

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

548

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

549

withdrawal in the next available issue of the Florida

550

Administrative Weekly. The rule shall be withdrawn without a

551

public hearing, effective upon publication of the notice in the

552

Florida Administrative Weekly. If the agency elects to repeal an

553

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

554

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

555

initiate rulemaking procedures for that purpose by giving notice

556

in the next available issue of the Florida Administrative Weekly.

557

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

558

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

559

process within 90 days after giving notice in the Florida

560

Administrative Weekly.

561

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

562

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

563

time prescribed in subsection (3) constitutes shall constitute

564

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

565

committee shall notify the Department of State that the agency,

566

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

567

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

568

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

569

effect in the next available issue of the Florida Administrative

570

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

571

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

572

files of the agency.

573

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

574

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

575

prescribed in subsection (3) constitutes shall constitute a

576

refusal to amend or repeal the rule.

577

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

578

objection to a statement of estimated regulatory costs within the

579

time prescribed in subsection (3) constitutes a refusal to

580

prepare a corrected statement of estimated regulatory costs.

581

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

582

objection to an unadopted rule within the time prescribed in

583

subsection (3) constitutes a refusal to adopt the rule and a

584

refusal to abandon all reliance upon the statement or any

585

substantially similar statement as a basis for agency action.

586

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

587

rule and the agency refuses to adopt, abandon, modify, amend,

588

withdraw, or repeal the rule, the committee shall file with the

589

Department of State a notice of the objection, detailing with

590

particularity the committee's its objection to the rule. The

591

Department of State shall publish this notice in the Florida

592

Administrative Weekly. If the rule is published and shall

593

publish, as a history note to the rule in the Florida

594

Administrative Code, a reference to the committee's objection and

595

to the issue of the Florida Administrative Weekly in which the

596

full text thereof appears shall be recorded in a history note.

597

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

598

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

599

to initiate administrative action to adopt, abandon, modify,

600

amend, withdraw, or repeal the rule consistent with the objection

601

within 60 days after the objection, or thereafter fails to

602

proceed in good faith to complete such action, the committee may

603

submit to the President of the Senate and the Speaker of the

604

House of Representatives a recommendation that legislation be

605

introduced to address the committee's objection modify or suspend

606

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

607

or portion thereof.

608

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

609

of legislation to address the committee's objection modify or

610

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

611

rule, the committee shall, within 5 days after this

612

determination, certify that fact to the agency whose rule or

613

proposed rule has been examined. The committee may request that

614

the agency temporarily suspend the rule or suspend the adoption

615

of the proposed rule, or suspend all reliance upon the statement

616

or any substantially similar statement as a basis for agency

617

action, pending consideration of proposed legislation during the

618

next regular session of the Legislature.

619

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

620

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

621

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

622

collegial body, the agency shall either:

623

a. Temporarily suspend the rule, or suspend the adoption of

624

the proposed rule, or suspend all reliance upon the statement or

625

any substantially similar statement as a basis for agency action;

626

627

b. Notify the committee in writing that the agency it

628

refuses to temporarily suspend the rule, or suspend the adoption

629

of the proposed rule, or suspend all reliance upon the statement

630

or any substantially similar statement as a basis for agency

631

action.

632

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

633

suspend the adoption of the proposed rule, or suspend all

634

reliance upon the statement or any substantially similar

635

statement as a basis for agency action, the agency it shall give

636

notice of the suspension in the Florida Administrative Weekly.

637

The rule or the rule adoption process shall be suspended upon

638

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

639

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

640

suspended statement or any substantially similar statement, or

641

portion of such rule or statement thereof, prior to expiration of

642

the suspension. A suspended rule, or suspended proposed rule, or

643

suspended statement or any substantially similar statement, or

644

portion of such rule or statement thereof, continues to be

645

subject to administrative determination and judicial review as

646

provided by law.

647

4. Failure of an agency to respond to committee

648

certification within the time prescribed by subparagraph 2.

649

constitutes a refusal to suspend the rule, or to suspend the

650

adoption of the proposed rule, or suspend all reliance upon the

651

statement or any substantially similar statement as a basis for

652

agency action.

653

654

to address the committee's objection modify or suspend the

655

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

656

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

657

the House of Representatives for prefiling and introduction in

658

the next regular session of the Legislature. The proposed

659

legislation bill shall be presented to the President of the

660

Senate and the Speaker of the House of Representatives with the

661

committee recommendation.

662

(d) If proposed legislation addressing the committee's

663

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

664

enacted into law, the proposed rule is suspended until specific

665

delegated legislative authority for the proposed rule has been

666

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

667

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

668

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

669

is enacted into law, the suspension shall expire upon publication

670

of notice of modification or amendment in the Florida

671

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

672

law, the suspension shall remain in effect until notification of

673

repeal of the rule is published in the Florida Administrative

674

Weekly.

675

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

676

available issue of the Florida Administrative Weekly the final

677

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

678

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

679

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

680

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

681

of the law in the Florida Administrative Code and publish a

682

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

683

Section 6. Paragraphs (a) and (d) of subsection (1) and

684

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

685

to read:

686

120.55 Publication.--

687

(1) The Department of State shall:

688

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

689

publish the "Florida Administrative Code." The Florida

690

Administrative Code shall contain all rules adopted by each

691

agency, citing the grant of specific rulemaking authority and the

692

specific law implemented pursuant to which each rule was adopted,

693

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

694

and complete indexes to all rules contained in the code.

695

Supplementation shall be made as often as practicable, but at

696

least monthly. The department may contract with a publishing firm

697

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

698

Administrative Code; however, the department shall retain

699

responsibility for the code as provided in this section. This

700

publication shall be the official compilation of the

701

administrative rules of this state. The Department of State shall

702

retain the copyright over the Florida Administrative Code.

703

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

704

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

705

thereof, or state university rules relating to internal personnel

706

or business and finance shall not be published in the Florida

707

Administrative Code. Exclusion from publication in the Florida

708

Administrative Code shall not affect the validity or

709

effectiveness of such rules.

710

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

711

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

712

department shall publish the address and telephone number of the

713

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

714

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

715

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

716

rules may be inspected.

717

4. Forms shall not be published in the Florida

718

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

719

dealings with the public, along with any accompanying

720

instructions, shall be filed with the committee before it is

721

used. Any form or instruction which meets the definition of

722

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

723

into the appropriate rule. The reference shall specifically state

724

that the form is being incorporated by reference and shall

725

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

726

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

727

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

728

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

729

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

730

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

731

incorporated.

732

(d) Prescribe by rule the style, and form, and content

733

requirements required for rules, notices, and other materials

734

submitted for filing and establish the form for their

735

certification.

736

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

737

agency, whether published in the Florida Administrative Code or

738

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

739

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

740

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

741

upon which the rule was approved.

742

Section 7. For the 2008-2009 fiscal year only and

743

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

744

unencumbered balance in the Records Management Trust Fund for

745

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

746

exceed $400,000 at the beginning of the fiscal year, and any

747

excess shall be transferred to the General Revenue Fund.

748

Section 8. Effective December 31, 2008, subsection (2) of

749

section 120.55, Florida Statutes, is amended to read:

750

120.55 Publication.--

751

(2) The Florida Administrative Weekly Internet website must

752

allow users to:

753

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

754

number, word, subject, and agency;

755

(b) Search a database that makes available all notices

756

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

757

758

selected notices to be sent out before or concurrently with

759

weekly publication of the printed and electronic Florida

760

Administrative Weekly. Such notification must include in the text

761

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

762

(d) View agency forms and other materials that have been

763

submitted to the department in electronic form and that are being

764

incorporated by reference in proposed rules; and

765

(e) Comment on proposed rules.

766

Section 9. Effective December 31, 2009, paragraph (a) of

767

subsection (1) of section 120.55, Florida Statutes, as amended by

768

this act, is amended to read:

769

120.55 Publication.--

770

(1) The Department of State shall:

771

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

772

publish electronically the "Florida Administrative Code." on an

773

Internet website managed by the department. The Florida

774

Administrative Code shall contain all rules adopted by each

775

agency, citing the grant of rulemaking authority and the specific

776

law implemented pursuant to which each rule was adopted, all

777

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

778

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

779

other material required or authorized by law or deemed useful by

780

the department. The electronic code shall display each rule

781

chapter currently in effect in browse mode and allow full text

782

search of the code and each rule chapter. Supplementation shall

783

be made as often as practicable, but at least monthly. The

784

department shall publish a printed version of the Florida

785

Administrative Code and may contract with a publishing firm for

786

such printed the publication, in a timely and useful form, of the

787

Florida Administrative Code; however, the department shall retain

788

responsibility for the code as provided in this section.

789

Supplementation of the printed code shall be made as often as

790

practicable, but at least monthly. The printed This publication

791

shall be the official compilation of the administrative rules of

792

this state. The Department of State shall retain the copyright

793

over the Florida Administrative Code.

794

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

795

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

796

thereof, or state university rules relating to internal personnel

797

or business and finance shall not be published in the Florida

798

Administrative Code. Exclusion from publication in the Florida

799

Administrative Code shall not affect the validity or

800

effectiveness of such rules.

801

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

802

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

803

department shall publish the address and telephone number of the

804

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

805

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

806

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

807

rules may be inspected.

808

4. Forms shall not be published in the Florida

809

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

810

dealings with the public, along with any accompanying

811

instructions, shall be filed with the committee before it is

812

used. Any form or instruction which meets the definition of

813

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

814

into the appropriate rule. The reference shall specifically state

815

that the form is being incorporated by reference and shall

816

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

817

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

818

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

819

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

820

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

821

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

822

incorporated.

823

5. The department shall allow material incorporated by

824

reference to be filed in electronic form as prescribed by

825

department rule. When a rule is filed for adoption with

826

incorporated material in electronic form, the department's

827

publication of the Florida Administrative Code on its Internet

828

website must contain a hyperlink from the incorporating reference

829

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

830

allow hyperlinks from rules in the Florida Administrative Code to

831

any material other than that filed with and maintained by the

832

department, but it may allow additional hyperlinks to

833

incorporated material maintained by the department from the

834

adopting agency's website or other sites.

835

Section 10. Paragraphs (a) and (b) of subsection (2) of

836

section 120.56, Florida Statutes, are amended to read:

837

120.56 Challenges to rules.--

838

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

839

(a) Any substantially affected person may seek an

840

administrative determination of the invalidity of any proposed

841

rule by filing a petition seeking such a determination with the

842

division within 21 days after the date of publication of the

843

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

844

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

845

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

846

preparation of a statement of estimated regulatory costs required

847

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

848

persons who submitted a lower cost regulatory alternative and

849

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

850

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

851

petition shall state with particularity the objections to the

852

proposed rule and the reasons that the proposed rule is an

853

invalid exercise of delegated legislative authority. The

854

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

855

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

856

proposed rule is not an invalid exercise of delegated legislative

857

authority as to the objections raised. Any person who is

858

substantially affected by a change in the proposed rule may seek

859

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

860

substantially affected by the proposed rule as initially noticed,

861

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

862

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

863

limited to challenging the change to the proposed rule.

864

(b) The administrative law judge may declare the proposed

865

rule wholly or partly invalid. Unless the decision of the

866

administrative law judge is reversed on appeal, the proposed rule

867

or provision of a proposed rule declared invalid shall not be

868

adopted. After a petition for administrative determination has

869

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

870

in the rulemaking process, including the holding of a factfinding

871

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

872

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

873

withdraw the proposed rule in its entirety. The agency whose

874

proposed rule has been declared invalid in whole or part shall

875

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

876

Florida Administrative Weekly.

877

Section 11. Effective January 1, 2009, subsection (4) of

878

section 120.56, Florida Statutes, is amended to read:

879

120.56 Challenges to rules.--

880

(4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES; SPECIAL

881

PROVISIONS.--

882

(a) Any person substantially affected by an agency

883

statement may seek an administrative determination that the

884

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

885

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

886

shall state with particularity facts sufficient to show that the

887

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

888

has not adopted the statement by the rulemaking procedure

889

provided by s. 120.54. Upon the filing of a petition for an

890

administrative determination under this paragraph, the agency

891

shall immediately discontinue all reliance upon the statement or

892

any substantially similar statement as a basis for agency action

893

until:

894

1. The proceeding is dismissed for any reason other than

895

initiation of rulemaking under s. 120.54;

896

2. The statement is adopted and becomes effective as a

897

rule;

898

3. A final order is issued which contains a determination

899

that the petitioner failed to prove that the statement

900

constitutes a rule under s. 120.52; or

901

4. A final order is issued which contains a determination

902

that rulemaking is not feasible under s. 120.54(1)(a)1.a. or s.

903

120.54(1)(a)1.b. or not practicable under s. 120.54(1)(a)2.

904

(b) If the administrative law judge determines that the

905

agency's inability to rely upon the statement during the

906

proceeding under paragraph (a) would constitute an immediate

907

danger to the public health, safety, or welfare, the

908

administrative law judge shall grant an agency petition to allow

909

application of the statement until the proceeding is concluded.

910

(c)(b) The administrative law judge may extend the hearing

911

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

912

If a hearing is held and the petitioner proves the allegations of

913

the petition, the agency shall have the burden of proving that

914

rulemaking is not feasible or not and practicable under s.

915

120.54(1)(a).

916

(d)(c) The administrative law judge may determine whether

917

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

918

of the administrative law judge shall constitute a final order.

919

The division shall transmit a copy of the final order to the

920

Department of State and the committee. The Department of State

921

shall publish notice of the final order in the first available

922

issue of the Florida Administrative Weekly.

923

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

924

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

925

the agency shall immediately discontinue all reliance upon the

926

statement or any substantially similar statement as a basis for

927

agency action.

928

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

929

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

930

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

931

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

932

presumption is created that the agency is acting expeditiously

933

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

934

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

935

substantially similar statement as a basis for agency action if

936

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

937

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

938

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

939

agency publishes a notice of rule development which addresses the

940

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

941

notice has been transmitted to the Florida Administrative Weekly

942

for publication, then such publication shall constitute good

943

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

944

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

945

publishes proposed rules within this 30-day period or any

946

extension of that period granted by an administrative law judge

947

upon showing of good cause, then the administrative law judge

948

shall place the case in abeyance pending the outcome of

949

rulemaking and any proceedings involving challenges to proposed

950

rules pursuant to subsection (2).

951

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

952

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

953

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

954

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

955

proceeds expeditiously and in good faith to adopt rules that

956

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

957

the statement or a substantially similar statement as a basis for

958

agency action if the statement meets the requirements of s.

959

120.57(1)(e).

960

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

961

statement within 180 days after publishing proposed rules, for

962

purposes of this subsection, a presumption is created that the

963

agency is not acting expeditiously and in good faith to adopt

964

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

965

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

966

tolled until a final order is entered in that proceeding.

967

5. If the proposed rules addressing the challenged

968

statement are determined to be an invalid exercise of delegated

969

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

970

agency must immediately discontinue reliance on the statement and

971

any substantially similar statement until the rules addressing

972

the subject are properly adopted.

973

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

974

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

975

proceeding pursuant to this subsection may be consolidated with a

976

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

977

this chapter. Nothing in This paragraph does not shall be

978

construed to prevent a party whose substantial interests have

979

been determined by an agency action from bringing a proceeding

980

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

981

Section 12. Effective January 1, 2009, paragraph (e) of

982

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

983

read:

984

120.57 Additional procedures for particular cases.--

985

(1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING

986

DISPUTED ISSUES OF MATERIAL FACT.--

987

(e)1. Any Agency action that determines the substantial

988

interests of a party may not be and that is based on an agency

989

statement that violates s. 120.54(1)(a). An agency or an

990

administrative law judge may not enforce any agency policy that

991

constitutes an unadopted rule if the agency fails to prove that

992

rulemaking is not feasible or practicable. This subparagraph does

993

not preclude application of adopted rules and applicable

994

provisions of law to the facts unadopted rule is subject to de

995

novo review by an administrative law judge.

996

2. The agency action shall not be presumed valid or

997

invalid. The agency must demonstrate that the unadopted rule:

998

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

999

the Legislature or, if the agency is operating pursuant to

1000

authority derived from the State Constitution, is within that

1001

authority;

1002

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

1003

provisions of law implemented;

1004

c. Is not vague, establishes adequate standards for agency

1005

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

1006

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

1007

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

1008

capricious if it is adopted without thought or reason or is

1009

irrational;

1010

e. Is not being applied to the substantially affected party

1011

without due notice; and

1012

f. Does not impose excessive regulatory costs on the

1013

regulated person, county, or city.

1014

2.3. The recommended and final orders in any proceeding

1015

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

1016

except that the administrative law judge's determination

1017

regarding the unadopted rule shall not be rejected by the agency

1018

unless the agency first determines from a review of the complete

1019

record, and states with particularity in the order, that such

1020

determination is clearly erroneous or does not comply with

1021

essential requirements of law. In any proceeding for review under

1022

s. 120.68, if the court finds that the agency's rejection of the

1023

determination regarding the unadopted rule does not comport with

1024

the provisions of this subparagraph, the agency action shall be

1025

set aside and the court shall award to the prevailing party the

1026

reasonable costs and a reasonable attorney's fee for the initial

1027

proceeding and the proceeding for review.

1028

Section 13. Effective January 1, 2009, subsections (2),

1029

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

1030

read:

1031

120.595 Attorney's fees.--

1032

(2) CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO SECTION

1033

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

1034

proposed rule or portion of a proposed rule invalid pursuant to

1035

s. 120.56(2), a judgment or order shall be rendered against the

1036

agency for reasonable costs and reasonable attorney's fees,

1037

unless the agency demonstrates that its actions were

1038

substantially justified or special circumstances exist which

1039

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

1040

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

1041

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

1042

agency prevails in the proceedings, the court or administrative

1043

law judge shall award reasonable costs and reasonable attorney's

1044

fees against a party if the court or administrative law judge

1045

determines that a party participated in the proceedings for an

1046

improper purpose as defined by paragraph (1)(e). No award of

1047

attorney's fees as provided by this subsection shall exceed

1048

$50,000 $15,000.

1049

(3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO SECTION

1050

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

1051

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

1052

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

1053

against the agency for reasonable costs and reasonable attorney's

1054

fees, unless the agency demonstrates that its actions were

1055

substantially justified or special circumstances exist which

1056

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

1057

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

1058

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

1059

agency prevails in the proceedings, the court or administrative

1060

law judge shall award reasonable costs and reasonable attorney's

1061

fees against a party if the court or administrative law judge

1062

determines that a party participated in the proceedings for an

1063

improper purpose as defined by paragraph (1)(e). No award of

1064

attorney's fees as provided by this subsection shall exceed

1065

$50,000 $15,000.

1066

(4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

1067

120.56(4).--

1068

(a) Upon entry of a final order that all or part of an

1069

agency statement violates s. 120.54(1)(a), the administrative law

1070

judge shall award reasonable costs and reasonable attorney's fees

1071

to the petitioner, unless the agency demonstrates that the

1072

statement is required by the Federal Government to implement or

1073

retain a delegated or approved program or to meet a condition to

1074

receipt of federal funds.

1075

(b) If, prior to the final hearing, the agency initiates

1076

rulemaking under s. 120.54 and requests a stay of the proceedings

1077

pending rulemaking, the administrative law judge shall award

1078

reasonable costs and reasonable attorney's fees accrued by the

1079

petitioner prior to the date the agency filed its request for a

1080

stay pending rulemaking, provided the agency adopts the statement

1081

as a rule. A request for a stay shall be granted when the

1082

petitioner and the agency agree to the stay. If the petitioner

1083

objects to the stay, the stay may be denied if the petitioner

1084

establishes that good cause exists to deny the stay. A stay

1085

granted under this paragraph remains in effect until either the

1086

statement has been adopted as a rule and has become effective or

1087

the proposed rule has been withdrawn. A request for attorney's

1088

fees and costs under this paragraph shall be granted only upon a

1089

finding that the agency knew or should have known at the time the

1090

petition was filed that the agency statement was an unadopted

1091

rule. An award of attorney's fees as provided by this paragraph

1092

may not exceed $50,000.

1093

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

1094

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

1095

executive director, or equivalent administrative officer of the

1096

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

1097

award or reimbursement for payment of an award under any

1098

provision of law.

1099

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

1100

administrative law judge shall award reasonable costs and

1101

attorney's fees against a party if the court or administrative

1102

law judge determines that the party participated in the

1103

proceedings for an improper purpose as defined in paragraph

1104

(1)(e).

1105

Section 14. Subsection (1) and paragraph (c) of subsection

1106

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

1107

120.569 Decisions which affect substantial interests.--

1108

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

1109

in which the substantial interests of a party are determined by

1110

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

1111

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

1112

whenever the proceeding involves a disputed issue of material

1113

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

1114

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

1115

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

1116

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

1117

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

1118

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

1119

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

1120

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

1121

Each notice shall inform the recipient of any administrative

1122

hearing or judicial review that is available under this section,

1123

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

1124

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

1125

state the time limits which apply.

1126

(2)

1127

1128

for hearing shall include those items required by the uniform

1129

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

1130

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

1131

shall carefully review the petition to determine if it contains

1132

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

1133

it is not in substantial compliance with these requirements or it

1134

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

1135

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

1136

amended petition curing the defect, unless it conclusively

1137

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

1138

cured. The agency shall promptly give written notice to all

1139

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

1140

particularity its reasons if the petition is not granted, and

1141

shall state the deadline for filing an amended petition if

1142

applicable. This paragraph does not eliminate the availability of

1143

equitable tolling as a defense to the untimely filing of a

1144

petition.

1145

Section 15. Subsection (2) of section 120.74, Florida

1146

Statutes, is amended to read:

1147

120.74 Agency review, revision, and report.--

1148

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

1149

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

1150

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

1151

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

1152

appropriate standing committee of the Legislature, which

1153

certifies that the agency has complied with the requirements of

1154

this section subsection. The report must specify any changes made

1155

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

1156

recommend statutory changes that will promote efficiency, reduce

1157

paperwork, or decrease costs to government and the private

1158

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

1159

in which the agency is involved which should be conducted under

1160

the summary hearing process described in s. 120.574.

1161

Section 16. Subsection (11) of section 120.80, Florida

1162

Statutes, is amended to read:

1163

120.80 Exceptions and special requirements; agencies.--

1164

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

1165

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

1166

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

1167

National Guard, organized militia, and unorganized militia, as

1168

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

1169

as defined by this chapter.

1170

Section 17. Paragraph (c) of subsection (1) and paragraph

1171

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

1172

amended to read:

1173

120.81 Exceptions and special requirements; general

1174

areas.--

1175

(1) EDUCATIONAL UNITS.--

1176

1177

test scoring criteria, or testing procedures relating to student

1178

assessment which are developed or administered by the Department

1179

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

1180

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

1181

law, are not rules.

1182

(3) PRISONERS AND PAROLEES.--

1183

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

1184

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

1185

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

1186

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

1187

action. Prisoners are not eligible to seek an administrative

1188

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

1189

shall not be considered parties for purposes of agency action or

1190

judicial review when the proceedings relate to the rescission or

1191

revocation of parole.

1192

Section 18. Paragraph (f) of subsection (2) of section

1193

409.175, Florida Statutes, is amended to read:

1194

409.175 Licensure of family foster homes, residential

1195

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

1196

exemption.--

1197

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

1198

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

1199

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

1200

foster home or other facility and is not a professional license

1201

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

1202

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

1203

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

1204

entitlement. This privilege must guide the finder of fact or

1205

trier of law at any administrative proceeding or court action

1206

initiated by the department.

1207

Section 19. Paragraph (a) of subsection (1) of section

1208

420.9072, Florida Statutes, is amended to read:

1209

420.9072 State Housing Initiatives Partnership

1210

Program.--The State Housing Initiatives Partnership Program is

1211

created for the purpose of providing funds to counties and

1212

eligible municipalities as an incentive for the creation of local

1213

housing partnerships, to expand production of and preserve

1214

affordable housing, to further the housing element of the local

1215

government comprehensive plan specific to affordable housing, and

1216

to increase housing-related employment.

1217

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

1218

s. 420.6015, the Legislature finds that affordable housing is

1219

most effectively provided by combining available public and

1220

private resources to conserve and improve existing housing and

1221

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

1222

households, and moderate-income households. The Legislature

1223

intends to encourage partnerships in order to secure the benefits

1224

of cooperation by the public and private sectors and to reduce

1225

the cost of housing for the target group by effectively combining

1226

all available resources and cost-saving measures. The Legislature

1227

further intends that local governments achieve this combination

1228

of resources by encouraging active partnerships between

1229

government, lenders, builders and developers, real estate

1230

professionals, advocates for low-income persons, and community

1231

groups to produce affordable housing and provide related

1232

services. Extending the partnership concept to encompass

1233

cooperative efforts among small counties as defined in s.

1234

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

1235

is specifically encouraged. Local governments are also intended

1236

to establish an affordable housing advisory committee to

1237

recommend monetary and nonmonetary incentives for affordable

1238

housing as provided in s. 420.9076.

1239

Section 20. Subsection (7) of section 420.9075, Florida

1240

Statutes, is amended to read:

1241

420.9075 Local housing assistance plans; partnerships.--

1242

(7) The moneys deposited in the local housing assistance

1243

trust fund shall be used to administer and implement the local

1244

housing assistance plan. The cost of administering the plan may

1245

not exceed 5 percent of the local housing distribution moneys and

1246

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

1247

eligible municipality may not exceed the 5-percent limitation on

1248

administrative costs, unless its governing body finds, by

1249

resolution, that 5 percent of the local housing distribution plus

1250

5 percent of program income is insufficient to adequately pay the

1251

necessary costs of administering the local housing assistance

1252

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

1253

percent of the local housing distribution plus 5 percent of

1254

program income deposited into the trust fund, except that small

1255

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

1256

municipalities receiving a local housing distribution of up to

1257

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

1258

administrative costs.

1259

Section 21. For the 2008-2009 fiscal year, the nonrecurring

1260

sum of $345,000 is appropriated from the Records Management Trust

1261

Fund to the Department of State for the purposes of carrying out

1262

the provisions of this act.

1263

Section 22. Except as otherwise expressly provided in this

1264

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

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