Florida Senate - 2008 CS for SB 704

By the Committee on Judiciary; and Senators Bennett and Gaetz

590-05785-08 2008704c1

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. 120.53, F.S.; authorizing agencies to

transmit agency orders electronically to the Division of

Administrative Hearings; 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; 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 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.;

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

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 enabling statute by the same

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statute.

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

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statute being carried out or interpreted by an agency through

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

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120.53, Florida Statutes, is amended to read:

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120.53 Maintenance of orders; indexing; listing;

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organizational information.--

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

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

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subject matter each agency order that must be indexed and made

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available to the public, or by electronically transmitting to the

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

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

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it publishes in its designated reporter a list of each agency

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final order that must be listed and preserves each listed order

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and makes it available for public inspection and copying.

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Section 4. 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 enabling statute

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by the same statute.

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

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

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

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

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section, to read:

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120.54 Rulemaking.--

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(1) GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN

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EMERGENCY RULES.--

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

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

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

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unless the rule is amended to incorporate the changes.

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2. An agency rule that incorporates by specific reference

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another rule of that agency automatically incorporates subsequent

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amendments to the referenced rule unless a contrary intent is

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clearly indicated in the referencing rule. A notice of amendments

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to a rule that has been incorporated by specific reference in

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other rules of that agency must explain the effect of those

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amendments on the referencing rules.

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

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not be incorporated by reference unless:

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a. The material has been submitted in the prescribed

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

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the material can be made available for free public access through

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an electronic hyperlink from the rule making the reference in the

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Florida Administrative Code; or

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b. The agency has determined that posting the material on

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the Internet for purposes of public examination and inspection

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would constitute a violation of federal copyright law, in which

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

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

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material is available for public inspection and examination, must

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

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

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

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required by the State Constitution for laws. The Department of

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State may prescribe by rule requirements for incorporating

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materials by reference pursuant to this paragraph.

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5.2. Notwithstanding any contrary provision in this

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section, when an adopted rule of the Department of Environmental

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Protection or a water management district is incorporated by

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

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

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effective as to the incorporating rule unless the agency

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incorporating by reference notifies the committee and the

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Department of State of its intent to adopt the subsequent

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amendment, publishes notice of such intent in the Florida

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Administrative Weekly, and files with the Department of State a

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copy of the amended rule incorporated by reference. Changes in

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the rule incorporated by reference are effective as to the other

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

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

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the history note of the incorporating rule to show the effective

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date of such change. Any substantially affected person may,

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

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intent in the Florida Administrative Weekly, file an objection to

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rulemaking with the agency. The objection shall specify the

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portions of the rule incorporated by reference to which the

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person objects and the reasons for the objection. The agency

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shall not have the authority under this subparagraph to adopt

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those portions of the rule specified in such objection. The

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

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response in the next available issue of the Florida

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Administrative Weekly.

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6. The Department of State may adopt by rule requirements

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for incorporating materials pursuant to this paragraph.

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

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rule development under subsection (2); however, rulemaking

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

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

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delegated or transferred.

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(3) ADOPTION PROCEDURES.--

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(a) Notices.--

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

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

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

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

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

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

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

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reference to the section or subsection of the Florida Statutes or

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

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

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statement of the estimated regulatory costs, if one has been

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

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statement that any person who wishes to provide the agency with

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information regarding the statement of estimated regulatory

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

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

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

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state the procedure for requesting a public hearing on the

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

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

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

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that is required by subsection (2) appeared.

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2. The notice shall be published in the Florida

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Administrative Weekly not less than 28 days prior to the intended

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action. The proposed rule shall be available for inspection and

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

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

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

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

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

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prescribed by rule to those particular classes of persons to whom

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the intended action is directed.

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

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

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

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

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and circumstances justifying the proposed rule; a copy of any

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statement of estimated regulatory costs that has been prepared

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

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proposed rule relates to federal standards or rules on the same

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subject; and the notice required by subparagraph 1.

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

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relating exclusively to procedure or practice, the agency shall,

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on the request of any affected person received within 21 days

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after the date of publication of the notice of intended agency

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action, give affected persons an opportunity to present evidence

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and argument on all issues under consideration. The agency may

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

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

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

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

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hearings is scheduled, the board or other collegial body shall

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

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delegate this responsibility without the consent of those persons

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requesting the public hearing. Any material pertinent to the

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issues under consideration submitted to the agency within 21 days

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

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

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of the record of the rulemaking proceeding.

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2. Rulemaking proceedings shall be governed solely by the

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provisions of this section unless a person timely asserts that

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the person's substantial interests will be affected in the

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proceeding and affirmatively demonstrates to the agency that the

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proceeding does not provide adequate opportunity to protect those

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interests. If the agency determines that the rulemaking

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

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shall suspend the rulemaking proceeding and convene a separate

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proceeding under the provisions of ss. 120.569 and 120.57.

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Similarly situated persons may be requested to join and

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participate in the separate proceeding. Upon conclusion of the

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separate proceeding, the rulemaking proceeding shall be resumed.

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

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

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

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

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

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any material incorporated by reference in the rule, certified by

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

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

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and circumstances justifying the rule. Agencies not required to

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publish their rules in the Florida Administrative Code shall file

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

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

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and such rules shall be open to the public.

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

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

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until 21 days after the notice of change required by paragraph

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

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after preparation of a statement of estimated regulatory costs

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

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submitted a lower cost regulatory alternative and made available

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

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

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

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

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

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

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

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

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

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days after receipt of all material authorized to be submitted at

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

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

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

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considered. If a petition for an administrative determination

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

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be filed for adoption is extended to 60 days after the

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administrative law judge files the final order with the clerk or

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until 60 days after subsequent judicial review is complete.

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

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that the time limitations prescribed by this paragraph have been

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complied with, that all statutory rulemaking requirements have

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been met, and that there is no administrative determination

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pending on the rule.

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

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whether the agency has responded in writing to all material and

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timely written comments or written inquiries made on behalf of

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

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filed within the prescribed time limits; that does not comply

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with satisfy all statutory rulemaking requirements and rules of

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

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to all material and timely written inquiries or written comments;

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upon which an administrative determination is pending; or which

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does not include a statement of estimated regulatory costs, if

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required.

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

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imposed by this paragraph or has not been adopted in compliance

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with all statutory rulemaking requirements, the agency proposing

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

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the next available issue of the Florida Administrative Weekly.

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

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the Department of State and become effective 20 days after being

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

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

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Department of State shall become effective when adopted by the

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

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

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being considered, the agency may postpone the adoption of the

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

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agency postpones adoption of a rule to accommodate review by the

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

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the committee notifies the agency that it has completed its

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review of the rule.

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For the purposes of this paragraph, the term "administrative

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determination" does not include subsequent judicial review.

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(4) EMERGENCY RULES.--

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

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

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agency may adopt any rule necessitated by the immediate danger.

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

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the circumstances if:

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1. The procedure provides at least the procedural

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protection given by other statutes, the State Constitution, or

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the United States Constitution.

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2. The agency takes only that action necessary to protect

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the public interest under the emergency procedure.

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

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

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

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reasons for concluding that the procedure used is fair under the

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

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than those of educational units or units of government with

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

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

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issue of the Florida Administrative Weekly and provided to the

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committee along with any material incorporated by reference in

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

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and procedural fairness shall be judicially reviewable.

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(7) PETITION TO INITIATE RULEMAKING.--

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

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

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

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information required by this chapter. The petition shall specify

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the proposed rule and action requested. Not later than 30

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

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shall initiate rulemaking proceedings under this chapter,

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otherwise comply with the requested action, or deny the petition

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with a written statement of its reasons for the denial.

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

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

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the rulemaking procedures or requirements set forth in this

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

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

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in the Florida Administrative Weekly that the agency will hold a

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public hearing on the petition within 30 days after publication

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

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

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not been adopted by the rulemaking procedures or requirements of

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

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the public interest is served adequately by the application of

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

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by the rulemaking procedures or requirements set forth in this

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chapter.

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

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or otherwise comply with the requested action, the agency shall

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publish in the Florida Administrative Weekly a statement of its

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reasons for not initiating rulemaking or otherwise complying with

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

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

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the statement with the committee. The committee shall forward a

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copy of the statement to the substantive committee with primary

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oversight jurisdiction of the agency in each house of the

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Legislature. The committee or the committee with primary

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oversight jurisdiction may hold a hearing directed to the

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statement of the agency. The committee holding the hearing may

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recommend to the Legislature the introduction of legislation

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making the rule a statutory standard or limiting or otherwise

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modifying the authority of the agency.

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

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

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read:

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120.54 Rulemaking.--

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(1) GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN

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EMERGENCY RULES.--

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

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

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by the rulemaking procedure provided by this section as soon as

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feasible and practicable.

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1. Rulemaking shall be presumed feasible unless the agency

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proves that:

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

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knowledge and experience reasonably necessary to address a

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statement by rulemaking;

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b. Related matters are not sufficiently resolved to enable

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the agency to address a statement by rulemaking; or

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c. The agency is currently using the rulemaking procedure

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expeditiously and in good faith to adopt rules which address the

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statement.

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2. Rulemaking shall be presumed practicable to the extent

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necessary to provide fair notice to affected persons of relevant

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agency procedures and applicable principles, criteria, or

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standards for agency decisions unless the agency proves that:

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a. Detail or precision in the establishment of principles,

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criteria, or standards for agency decisions is not reasonable

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under the circumstances; or

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b. The particular questions addressed are of such a narrow

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scope that more specific resolution of the matter is impractical

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outside of an adjudication to determine the substantial interests

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of a party based on individual circumstances.

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

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read:

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120.545 Committee review of agency rules.--

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(1) As a legislative check on legislatively created

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authority, the committee shall examine each proposed rule, except

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

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its accompanying material, and each emergency rule, and may

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examine any existing rule, for the purpose of determining

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whether:

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(a) The rule is an invalid exercise of delegated

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legislative authority.

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

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(d) The rule is in proper form.

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

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

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(f) The rule is consistent with expressed legislative

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intent pertaining to the specific provisions of law which the

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rule implements.

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

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expressed objectives of the specific provision of law which the

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rule implements.

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

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it affects the convenience of the general public or persons

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particularly affected by the rule.

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

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comprehensible to the general public.

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

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

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

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

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alternatives that substantially accomplish the statutory

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objectives.

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(k) The rule will require additional appropriations.

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

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emergency justifying the adoption promulgation of such rule, the

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agency is within has exceeded the scope of its statutory

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authority, and the rule was adopted promulgated in compliance

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

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(2) The committee may request from an agency such

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information as is reasonably necessary for examination of a rule

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

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legislative standing committees having with jurisdiction over the

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

525

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

526

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

527

rule has been examined and include with the certification a

528

statement detailing its objections with particularity. The

529

committee shall notify the Speaker of the House of

530

Representatives and the President of the Senate of any objection

531

to an agency rule concurrent with certification of that fact to

532

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

533

statement detailing the committee's objections to the rule.

534

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

535

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

536

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

537

body, the agency shall:

538

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

539

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

540

modifications as are necessary to address Modify the rule to meet

541

the committee's objection;

542

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

543

withdraw the rule in its entirety; or

544

3. Notify the committee in writing that it refuses Refuse

545

to modify or withdraw the rule.

546

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

547

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

548

notice of rule development, Notify the committee that it has

549

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

550

objection and initiate the amendment procedure;

551

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

552

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

553

repeal procedure; or

554

3. Notify the committee in writing that the agency it

555

refuses to amend or repeal the rule.

556

557

and the objection is to the statement of estimated regulatory

558

costs:

559

1. Prepare a corrected statement of estimated regulatory

560

costs, give notice of the availability of the corrected statement

561

in the first available issue of the Florida Administrative

562

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

563

committee; or

564

2. Notify the committee that it refuses to prepare a

565

corrected statement of estimated regulatory costs.

566

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

567

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

568

as are necessary to meet the objection and shall resubmit the

569

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

570

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

571

objection by publishing a notice of change in the first available

572

issue of the Florida Administrative Weekly, but shall not be

573

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

574

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

575

shall notify the committee in writing and shall initiate the

576

amendment procedure by giving notice in the next available issue

577

of the Florida Administrative Weekly. The committee shall give

578

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

579

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

580

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

581

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

582

withdrawal in the next available issue of the Florida

583

Administrative Weekly. The rule shall be withdrawn without a

584

public hearing, effective upon publication of the notice in the

585

Florida Administrative Weekly. If the agency elects to repeal an

586

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

587

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

588

initiate rulemaking procedures for that purpose by giving notice

589

in the next available issue of the Florida Administrative Weekly.

590

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

591

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

592

process within 90 days after giving notice in the Florida

593

Administrative Weekly.

594

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

595

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

596

time prescribed in subsection (3) constitutes shall constitute

597

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

598

committee shall notify the Department of State that the agency,

599

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

600

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

601

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

602

effect in the next available issue of the Florida Administrative

603

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

604

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

605

files of the agency.

606

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

607

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

608

prescribed in subsection (3) constitutes shall constitute a

609

refusal to amend or repeal the rule.

610

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

611

objection to a statement of estimated regulatory costs within the

612

time prescribed in subsection (3) constitutes a refusal to

613

prepare a corrected statement of estimated regulatory costs.

614

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

615

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

616

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

617

notice of the objection, detailing with particularity the

618

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

619

shall publish this notice in the Florida Administrative Weekly.

620

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

621

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

622

committee's objection and to the issue of the Florida

623

Administrative Weekly in which the full text thereof appears

624

shall be recorded in a history note.

625

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

626

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

627

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

628

repeal the rule consistent with the objection within 60 days

629

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

630

to complete such action, the committee may submit to the

631

President of the Senate and the Speaker of the House of

632

Representatives a recommendation that legislation be introduced

633

to address the committee's objection modify or suspend the

634

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

635

portion thereof.

636

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

637

of legislation to address the committee's objection modify or

638

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

639

rule, the committee shall, within 5 days after this

640

determination, certify that fact to the agency whose rule or

641

proposed rule has been examined. The committee may request that

642

the agency temporarily suspend the rule or suspend the adoption

643

of the proposed rule, pending consideration of proposed

644

legislation during the next regular session of the Legislature.

645

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

646

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

647

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

648

collegial body, the agency shall either:

649

a. Temporarily suspend the rule or suspend the adoption of

650

the proposed rule; or

651

b. Notify the committee in writing that the agency it

652

refuses to temporarily suspend the rule or suspend the adoption

653

of the proposed rule.

654

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

655

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

656

give notice of the suspension in the Florida Administrative

657

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

658

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

659

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

660

portion of such rule thereof, prior to expiration of the

661

suspension. A suspended rule or suspended proposed rule, or

662

portion of such rule thereof, continues to be subject to

663

administrative determination and judicial review as provided by

664

law.

665

4. Failure of an agency to respond to committee

666

certification within the time prescribed by subparagraph 2.

667

constitutes a refusal to suspend the rule or to suspend the

668

adoption of the proposed rule.

669

670

to address the committee's objection modify or suspend the

671

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

672

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

673

the House of Representatives for prefiling and introduction in

674

the next regular session of the Legislature. The proposed

675

legislation bill shall be presented to the President of the

676

Senate and the Speaker of the House of Representatives with the

677

committee recommendation.

678

(d) If proposed legislation addressing the committee's

679

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

680

enacted into law, the proposed rule is suspended until specific

681

delegated legislative authority for the proposed rule has been

682

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

683

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

684

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

685

is enacted into law, the suspension shall expire upon publication

686

of notice of modification or amendment in the Florida

687

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

688

law, the suspension shall remain in effect until notification of

689

repeal of the rule is published in the Florida Administrative

690

Weekly.

691

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

692

available issue of the Florida Administrative Weekly the final

693

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

694

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

695

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

696

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

697

of the law in the Florida Administrative Code and publish a

698

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

699

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

700

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

701

to read:

702

120.55 Publication.--

703

(1) The Department of State shall:

704

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

705

publish the "Florida Administrative Code." The Florida

706

Administrative Code shall contain all rules adopted by each

707

agency, citing the grant of specific rulemaking authority and the

708

specific law implemented pursuant to which each rule was adopted,

709

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

710

and complete indexes to all rules contained in the code.

711

Supplementation shall be made as often as practicable, but at

712

least monthly. The department may contract with a publishing firm

713

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

714

Administrative Code; however, the department shall retain

715

responsibility for the code as provided in this section. This

716

publication shall be the official compilation of the

717

administrative rules of this state. The Department of State shall

718

retain the copyright over the Florida Administrative Code.

719

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

720

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

721

thereof, or state university rules relating to internal personnel

722

or business and finance shall not be published in the Florida

723

Administrative Code. Exclusion from publication in the Florida

724

Administrative Code shall not affect the validity or

725

effectiveness of such rules.

726

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

727

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

728

department shall publish the address and telephone number of the

729

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

730

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

731

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

732

rules may be inspected.

733

4. Forms shall not be published in the Florida

734

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

735

dealings with the public, along with any accompanying

736

instructions, shall be filed with the committee before it is

737

used. Any form or instruction which meets the definition of

738

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

739

into the appropriate rule. The reference shall specifically state

740

that the form is being incorporated by reference and shall

741

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

742

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

743

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

744

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

745

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

746

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

747

incorporated.

748

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

749

rules, notices, and other materials submitted for filing and

750

establish the form for their certification.

751

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

752

agency, whether published in the Florida Administrative Code or

753

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

754

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

755

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

756

upon which the rule was approved.

757

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

758

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

759

unencumbered balance in the Records Management Trust Fund for

760

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

761

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

762

excess shall be transferred to the General Revenue Fund.

763

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

764

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

765

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

766

120.55 Publication.--

767

(1) The Department of State shall:

768

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

769

publish electronically, on an Internet website managed by the

770

department, the "Florida Administrative Code." The Florida

771

Administrative Code shall contain all rules adopted by each

772

agency, citing the grant of rulemaking authority and the specific

773

law implemented pursuant to which each rule was adopted, all

774

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

775

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

776

material required or authorized by law or deemed useful by the

777

department. The electronic code shall display each rule chapter

778

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

779

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

780

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

781

publish a printed version of the Florida Administrative Code and

782

may contract with a publishing firm for such printed the

783

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

784

Administrative Code; however, the department shall retain

785

responsibility for the code as provided in this section.

786

Supplementation of the printed code shall be made as often as

787

practicable, but at least monthly. The printed This publication

788

shall be the official compilation of the administrative rules of

789

this state. The Department of State shall retain the copyright

790

over the Florida Administrative Code.

791

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

792

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

793

thereof, or state university rules relating to internal personnel

794

or business and finance shall not be published in the Florida

795

Administrative Code. Exclusion from publication in the Florida

796

Administrative Code shall not affect the validity or

797

effectiveness of such rules.

798

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

799

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

800

department shall publish the address and telephone number of the

801

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

802

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

803

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

804

rules may be inspected.

805

4. Forms shall not be published in the Florida

806

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

807

dealings with the public, along with any accompanying

808

instructions, shall be filed with the committee before it is

809

used. Any form or instruction which meets the definition of

810

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

811

into the appropriate rule. The reference shall specifically state

812

that the form is being incorporated by reference and shall

813

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

814

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

815

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

816

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

817

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

818

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

819

incorporated.

820

5. The department shall allow material incorporated by

821

reference to be filed in electronic form as prescribed by

822

department rule. When a rule is filed for adoption with

823

incorporated material in electronic form, the department's

824

publication of the Florida Administrative Code on its Internet

825

website must contain a hyperlink from the incorporating reference

826

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

827

allow hyperlinks from rules in the Florida Administrative Code to

828

any material other than that filed with and maintained by the

829

department, but may allow hyperlinks to incorporated material

830

maintained by the department from the adopting agency's website

831

or other sites.

832

(2) The Florida Administrative Weekly Internet website must

833

allow users to:

834

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

835

number, word, subject, and agency;

836

(b) Search a database that makes available all notices

837

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

838

839

selected notices to be sent out before or concurrently with

840

weekly publication of the printed and electronic Florida

841

Administrative Weekly. Such notification must include in the text

842

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

843

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

844

department in electronic form and incorporated by reference in

845

proposed rules; and

846

(e) Comment on proposed rules.

847

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

848

section 120.56, Florida Statutes, are amended to read:

849

120.56 Challenges to rules.--

850

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

851

(a) Any substantially affected person may seek an

852

administrative determination of the invalidity of any proposed

853

rule by filing a petition seeking such a determination with the

854

division within 21 days after the date of publication of the

855

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

856

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

857

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

858

preparation of a statement of estimated regulatory costs required

859

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

860

persons who submitted a lower cost regulatory alternative and

861

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

862

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

863

petition shall state with particularity the objections to the

864

proposed rule and the reasons that the proposed rule is an

865

invalid exercise of delegated legislative authority. The

866

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

867

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

868

proposed rule is not an invalid exercise of delegated legislative

869

authority as to the objections raised. Any person who is

870

substantially affected by a change in the proposed rule may seek

871

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

872

substantially affected by the proposed rule as initially noticed,

873

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

874

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

875

limited to challenging the change to the proposed rule.

876

(b) The administrative law judge may declare the proposed

877

rule wholly or partly invalid. Unless the decision of the

878

administrative law judge is reversed on appeal, the proposed rule

879

or provision of a proposed rule declared invalid shall not be

880

adopted. After a petition for administrative determination has

881

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

882

in the rulemaking process, including the holding of a factfinding

883

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

884

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

885

withdraw the proposed rule in its entirety. The agency whose

886

proposed rule has been declared invalid in whole or part shall

887

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

888

Florida Administrative Weekly.

889

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

890

section 120.56, Florida Statutes, is amended to read:

891

120.56 Challenges to rules.--

892

(4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES; SPECIAL

893

PROVISIONS.--

894

(a) Any person substantially affected by an agency

895

statement may seek an administrative determination that the

896

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

897

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

898

shall state with particularity facts sufficient to show that the

899

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

900

has not adopted the statement by the rulemaking procedure

901

provided by s. 120.54.

902

(b) The administrative law judge may extend the hearing

903

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

904

Upon notification to the administrative law judge provided before

905

the final hearing that the agency has published a notice of

906

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

907

operate as a stay of proceedings pending adoption of the

908

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

909

stay for good cause shown. A stay of proceedings pending

910

rulemaking shall remain in effect so long as the agency is

911

proceeding expeditiously and in good faith to adopt the statement

912

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

913

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

914

proving that rulemaking is not feasible or not and practicable

915

under s. 120.54(1)(a).

916

917

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

918

the administrative law judge shall constitute a final order. The

919

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) If When an administrative law judge enters a final

924

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

925

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

926

reliance upon the statement or any substantially similar

927

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

928

be construed to impair the obligation of contracts existing at

929

the time the final order is entered.

930

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

931

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

932

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

933

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

934

presumption is created that the agency is acting expeditiously

935

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

936

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

937

substantially similar statement as a basis for agency action if

938

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

939

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

940

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

941

agency publishes a notice of rule development which addresses the

942

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

943

notice has been transmitted to the Florida Administrative Weekly

944

for publication, then such publication shall constitute good

945

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

946

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

947

publishes proposed rules within this 30-day period or any

948

extension of that period granted by an administrative law judge

949

upon showing of good cause, then the administrative law judge

950

shall place the case in abeyance pending the outcome of

951

rulemaking and any proceedings involving challenges to proposed

952

rules pursuant to subsection (2).

953

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

954

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

955

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

956

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

957

proceeds expeditiously and in good faith to adopt rules that

958

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

959

the statement or a substantially similar statement as a basis for

960

agency action if the statement meets the requirements of s.

961

120.57(1)(e).

962

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

963

statement within 180 days after publishing proposed rules, for

964

purposes of this subsection, a presumption is created that the

965

agency is not acting expeditiously and in good faith to adopt

966

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

967

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

968

tolled until a final order is entered in that proceeding.

969

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

970

statement are determined to be an invalid exercise of delegated

971

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

972

agency must immediately discontinue reliance on the statement and

973

any substantially similar statement until the rules addressing

974

the subject are properly adopted, and the administrative law

975

judge shall enter a final order to that effect.

976

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

977

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

978

proceeding pursuant to this subsection may be consolidated with a

979

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

980

this chapter. Nothing in This paragraph does not shall be

981

construed to prevent a party whose substantial interests have

982

been determined by an agency action from bringing a proceeding

983

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

984

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

985

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

986

read:

987

120.57 Additional procedures for particular cases.--

988

(1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING

989

DISPUTED ISSUES OF MATERIAL FACT.--

990

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

991

Any agency action that determines the substantial interests of a

992

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

993

law judge shall determine whether an agency statement constitutes

994

an unadopted rule. This subparagraph does not preclude

995

application of adopted rules and applicable provisions of law to

996

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

997

administrative law judge.

998

2. Notwithstanding subparagraph 1., if an agency

999

demonstrates that the statute being implemented directs it to

1000

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

1001

rules because the requirement was so recently enacted, and that

1002

the agency has initiated rulemaking and is proceeding

1003

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

1004

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

1005

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

1006

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

1007

must demonstrate that the unadopted rule:

1008

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

1009

the Legislature or, if the agency is operating pursuant to

1010

authority derived from the State Constitution, is within that

1011

authority;

1012

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

1013

provisions of law implemented;

1014

c. Is not vague, establishes adequate standards for agency

1015

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

1016

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

1017

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

1018

capricious if it is adopted without thought or reason or is

1019

irrational;

1020

e. Is not being applied to the substantially affected party

1021

without due notice; and

1022

f. Does not impose excessive regulatory costs on the

1023

regulated person, county, or city.

1024

3. The recommended and final orders in any proceeding shall

1025

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

1026

that the administrative law judge's determination regarding an

1027

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

1028

rejected by the agency unless the agency first determines from a

1029

review of the complete record, and states with particularity in

1030

the order, that such determination is clearly erroneous or does

1031

not comply with essential requirements of law. In any proceeding

1032

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

1033

rejection of the determination regarding the unadopted rule does

1034

not comport with the provisions of this subparagraph, the agency

1035

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

1036

prevailing party the reasonable costs and a reasonable attorney's

1037

fee for the initial proceeding and the proceeding for review.

1038

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

1039

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

1040

read:

1041

120.595 Attorney's fees.--

1042

(2) CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO SECTION

1043

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

1044

declares a proposed rule or portion of a proposed rule invalid

1045

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

1046

against the agency for reasonable costs and reasonable attorney's

1047

fees, unless the agency demonstrates that its actions were

1048

substantially justified or special circumstances exist which

1049

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

1050

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

1051

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

1052

agency prevails in the proceedings, the appellate court or

1053

administrative law judge shall award reasonable costs and

1054

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

1055

or administrative law judge determines that a party participated

1056

in the proceedings for an improper purpose as defined by

1057

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

1058

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

1059

(3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO SECTION

1060

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

1061

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

1062

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

1063

against the agency for reasonable costs and reasonable attorney's

1064

fees, unless the agency demonstrates that its actions were

1065

substantially justified or special circumstances exist which

1066

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

1067

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

1068

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

1069

agency prevails in the proceedings, the appellate court or

1070

administrative law judge shall award reasonable costs and

1071

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

1072

or administrative law judge determines that a party participated

1073

in the proceedings for an improper purpose as defined by

1074

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

1075

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

1076

(4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

1077

120.56(4).--

1078

(a) If the appellate court or administrative law judge

1079

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

1080

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

1081

must immediately discontinue reliance on the statement and any

1082

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

1083

judgment or order shall be entered against the agency for the

1084

administrative law judge shall award reasonable costs and

1085

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

1086

demonstrates that the statement is required by the Federal

1087

Government to implement or retain a delegated or approved program

1088

or to meet a condition to receipt of federal funds.

1089

(b) Upon notification to the administrative law judge

1090

provided before the final hearing that the agency has published a

1091

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

1092

automatically operate as a stay of proceedings pending

1093

rulemaking. The administrative law judge may vacate the stay for

1094

good cause shown. A stay of proceedings under this paragraph

1095

remains in effect so long as the agency is proceeding

1096

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

1097

The administrative law judge shall award reasonable costs and

1098

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

1099

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

1100

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

1101

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

1102

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

1103

a finding that the agency received notice that the statement may

1104

constitute an unadopted rule at least 30 days before a petition

1105

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

1106

publish the required notice of rulemaking pursuant to s.

1107

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

1108

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

1109

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

1110

substantially the same information, or a petition filed pursuant

1111

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

1112

paragraph may not exceed $50,000.

1113

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

1114

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

1115

executive director, or equivalent administrative officer of the

1116

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

1117

award or reimbursement for payment of an award under any

1118

provision of law.

1119

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

1120

appellate court or administrative law judge shall award

1121

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

1122

appellate court or administrative law judge determines that the

1123

party participated in the proceedings for an improper purpose as

1124

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

1125

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

1126

by the material facts necessary to establish the claim or would

1127

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

1128

material facts.

1129

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

1130

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

1131

120.569 Decisions which affect substantial interests.--

1132

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

1133

in which the substantial interests of a party are determined by

1134

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

1135

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

1136

whenever the proceeding involves a disputed issue of material

1137

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

1138

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

1139

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

1140

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

1141

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

1142

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

1143

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

1144

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

1145

Each notice shall inform the recipient of any administrative

1146

hearing or judicial review that is available under this section,

1147

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

1148

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

1149

state the time limits which apply.

1150

(2)

1151

1152

for hearing shall include those items required by the uniform

1153

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

1154

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

1155

shall carefully review the petition to determine if it contains

1156

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

1157

it is not in substantial compliance with these requirements or it

1158

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

1159

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

1160

amended petition curing the defect, unless it conclusively

1161

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

1162

cured. The agency shall promptly give written notice to all

1163

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

1164

particularity its reasons if the petition is not granted, and

1165

shall state the deadline for filing an amended petition if

1166

applicable. This paragraph does not eliminate the availability of

1167

equitable tolling as a defense to the untimely filing of a

1168

petition.

1169

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

1170

Statutes, is amended to read:

1171

120.74 Agency review, revision, and report.--

1172

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

1173

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

1174

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

1175

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

1176

appropriate standing committee of the Legislature, which

1177

certifies that the agency has complied with the requirements of

1178

this section subsection. The report must specify any changes made

1179

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

1180

recommend statutory changes that will promote efficiency, reduce

1181

paperwork, or decrease costs to government and the private

1182

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

1183

in which the agency is involved which should be conducted under

1184

the summary hearing process described in s. 120.574.

1185

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

1186

Statutes, is amended to read:

1187

120.80 Exceptions and special requirements; agencies.--

1188

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

1189

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

1190

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

1191

National Guard, organized militia, and unorganized militia, as

1192

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

1193

as defined by this chapter.

1194

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

1195

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

1196

amended to read:

1197

120.81 Exceptions and special requirements; general

1198

areas.--

1199

(1) EDUCATIONAL UNITS.--

1200

1201

test scoring criteria, or testing procedures relating to student

1202

assessment which are developed or administered by the Department

1203

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

1204

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

1205

law, are not rules.

1206

(3) PRISONERS AND PAROLEES.--

1207

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

1208

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

1209

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

1210

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

1211

action. Prisoners are not eligible to seek an administrative

1212

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

1213

shall not be considered parties for purposes of agency action or

1214

judicial review when the proceedings relate to the rescission or

1215

revocation of parole.

1216

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

1217

409.175, Florida Statutes, is amended to read:

1218

409.175 Licensure of family foster homes, residential

1219

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

1220

exemption.--

1221

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

1222

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

1223

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

1224

foster home or other facility and is not a professional license

1225

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

1226

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

1227

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

1228

entitlement. This privilege must guide the finder of fact or

1229

trier of law at any administrative proceeding or court action

1230

initiated by the department.

1231

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

1232

420.9072, Florida Statutes, is amended to read:

1233

420.9072 State Housing Initiatives Partnership

1234

Program.--The State Housing Initiatives Partnership Program is

1235

created for the purpose of providing funds to counties and

1236

eligible municipalities as an incentive for the creation of local

1237

housing partnerships, to expand production of and preserve

1238

affordable housing, to further the housing element of the local

1239

government comprehensive plan specific to affordable housing, and

1240

to increase housing-related employment.

1241

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

1242

s. 420.6015, the Legislature finds that affordable housing is

1243

most effectively provided by combining available public and

1244

private resources to conserve and improve existing housing and

1245

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

1246

households, and moderate-income households. The Legislature

1247

intends to encourage partnerships in order to secure the benefits

1248

of cooperation by the public and private sectors and to reduce

1249

the cost of housing for the target group by effectively combining

1250

all available resources and cost-saving measures. The Legislature

1251

further intends that local governments achieve this combination

1252

of resources by encouraging active partnerships between

1253

government, lenders, builders and developers, real estate

1254

professionals, advocates for low-income persons, and community

1255

groups to produce affordable housing and provide related

1256

services. Extending the partnership concept to encompass

1257

cooperative efforts among small counties as defined in s.

1258

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

1259

is specifically encouraged. Local governments are also intended

1260

to establish an affordable housing advisory committee to

1261

recommend monetary and nonmonetary incentives for affordable

1262

housing as provided in s. 420.9076.

1263

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

1264

Statutes, is amended to read:

1265

420.9075 Local housing assistance plans; partnerships.--

1266

(7) The moneys deposited in the local housing assistance

1267

trust fund shall be used to administer and implement the local

1268

housing assistance plan. The cost of administering the plan may

1269

not exceed 5 percent of the local housing distribution moneys and

1270

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

1271

eligible municipality may not exceed the 5-percent limitation on

1272

administrative costs, unless its governing body finds, by

1273

resolution, that 5 percent of the local housing distribution plus

1274

5 percent of program income is insufficient to adequately pay the

1275

necessary costs of administering the local housing assistance

1276

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

1277

percent of the local housing distribution plus 5 percent of

1278

program income deposited into the trust fund, except that small

1279

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

1280

municipalities receiving a local housing distribution of up to

1281

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

1282

administrative costs.

1283

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

1284

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

1285

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

1286

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

1287

Records Management Trust Fund to the Department of State for the

1288

purposes of carrying out the provisions of this act.

1289

Section 23. Except as otherwise expressly provided in this

1290

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

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