Florida Senate - 2008 CS for CS for SB 704

By the Committees on Transportation and Economic Development Appropriations; Judiciary; and Senators Bennett and Gaetz

606-07672-08 2008704c2

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; 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 appropriations; requiring a

temporary increase in the space rate charge for

publication in the Florida Administrative Weekly;

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 effective dates.

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

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

Act."

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

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

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

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

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

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

are added to that section, to read:

120.52 Definitions.--As used in this act:

(8) "Invalid exercise of delegated legislative authority"

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

duties delegated by the Legislature. A proposed or existing rule

is an invalid exercise of delegated legislative authority if any

one of the following applies:

(a) The agency has materially failed to follow the

applicable rulemaking procedures or requirements set forth in

this chapter;

(b) The agency has exceeded its grant of rulemaking

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

specific provisions of law implemented, citation to which is

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

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

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standards for agency decisions, or vests unbridled discretion in

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the agency;

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

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

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

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or is irrational; or

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(f) The rule imposes regulatory costs on the regulated

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

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less costly alternatives that substantially accomplish the

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statutory objectives.

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A grant of rulemaking authority is necessary but not sufficient

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

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

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implement or interpret the specific powers and duties granted by

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

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

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enabling legislation and is not arbitrary and capricious or is

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

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agency have the authority to implement statutory provisions

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setting forth general legislative intent or policy. Statutory

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language granting rulemaking authority or generally describing

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the powers and functions of an agency shall be construed to

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extend no further than implementing or interpreting the specific

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powers and duties conferred by the 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

525

legislative standing committees having with jurisdiction over the

526

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

527

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

528

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

529

rule has been examined and include with the certification a

530

statement detailing its objections with particularity. The

531

committee shall notify the Speaker of the House of

532

Representatives and the President of the Senate of any objection

533

to an agency rule concurrent with certification of that fact to

534

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

535

statement detailing the committee's objections to the rule.

536

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

537

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

538

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

539

body, the agency shall:

540

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

541

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

542

modifications as are necessary to address Modify the rule to meet

543

the committee's objection;

544

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

545

withdraw the rule in its entirety; or

546

3. Notify the committee in writing that it refuses Refuse

547

to modify or withdraw the rule.

548

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

549

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

550

notice of rule development, Notify the committee that it has

551

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

552

objection and initiate the amendment procedure;

553

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

554

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

555

repeal procedure; or

556

3. Notify the committee in writing that the agency it

557

refuses to amend or repeal the rule.

558

559

and the objection is to the statement of estimated regulatory

560

costs:

561

1. Prepare a corrected statement of estimated regulatory

562

costs, give notice of the availability of the corrected statement

563

in the first available issue of the Florida Administrative

564

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

565

committee; or

566

2. Notify the committee that it refuses to prepare a

567

corrected statement of estimated regulatory costs.

568

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

569

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

570

as are necessary to meet the objection and shall resubmit the

571

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

572

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

573

objection by publishing a notice of change in the first available

574

issue of the Florida Administrative Weekly, but shall not be

575

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

576

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

577

shall notify the committee in writing and shall initiate the

578

amendment procedure by giving notice in the next available issue

579

of the Florida Administrative Weekly. The committee shall give

580

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

581

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

582

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

583

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

584

withdrawal in the next available issue of the Florida

585

Administrative Weekly. The rule shall be withdrawn without a

586

public hearing, effective upon publication of the notice in the

587

Florida Administrative Weekly. If the agency elects to repeal an

588

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

589

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

590

initiate rulemaking procedures for that purpose by giving notice

591

in the next available issue of the Florida Administrative Weekly.

592

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

593

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

594

process within 90 days after giving notice in the Florida

595

Administrative Weekly.

596

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

597

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

598

time prescribed in subsection (3) constitutes shall constitute

599

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

600

committee shall notify the Department of State that the agency,

601

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

602

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

603

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

604

effect in the next available issue of the Florida Administrative

605

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

606

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

607

files of the agency.

608

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

609

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

610

prescribed in subsection (3) constitutes shall constitute a

611

refusal to amend or repeal the rule.

612

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

613

objection to a statement of estimated regulatory costs within the

614

time prescribed in subsection (3) constitutes a refusal to

615

prepare a corrected statement of estimated regulatory costs.

616

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

617

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

618

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

619

notice of the objection, detailing with particularity the

620

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

621

shall publish this notice in the Florida Administrative Weekly.

622

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

623

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

624

committee's objection and to the issue of the Florida

625

Administrative Weekly in which the full text thereof appears

626

shall be recorded in a history note.

627

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

628

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

629

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

630

repeal the rule consistent with the objection within 60 days

631

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

632

to complete such action, the committee may submit to the

633

President of the Senate and the Speaker of the House of

634

Representatives a recommendation that legislation be introduced

635

to address the committee's objection modify or suspend the

636

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

637

portion thereof.

638

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

639

of legislation to address the committee's objection modify or

640

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

641

rule, the committee shall, within 5 days after this

642

determination, certify that fact to the agency whose rule or

643

proposed rule has been examined. The committee may request that

644

the agency temporarily suspend the rule or suspend the adoption

645

of the proposed rule, pending consideration of proposed

646

legislation during the next regular session of the Legislature.

647

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

648

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

649

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

650

collegial body, the agency shall either:

651

a. Temporarily suspend the rule or suspend the adoption of

652

the proposed rule; or

653

b. Notify the committee in writing that the agency it

654

refuses to temporarily suspend the rule or suspend the adoption

655

of the proposed rule.

656

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

657

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

658

give notice of the suspension in the Florida Administrative

659

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

660

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

661

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

662

portion of such rule thereof, prior to expiration of the

663

suspension. A suspended rule or suspended proposed rule, or

664

portion of such rule thereof, continues to be subject to

665

administrative determination and judicial review as provided by

666

law.

667

4. Failure of an agency to respond to committee

668

certification within the time prescribed by subparagraph 2.

669

constitutes a refusal to suspend the rule or to suspend the

670

adoption of the proposed rule.

671

672

to address the committee's objection modify or suspend the

673

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

674

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

675

the House of Representatives for prefiling and introduction in

676

the next regular session of the Legislature. The proposed

677

legislation bill shall be presented to the President of the

678

Senate and the Speaker of the House of Representatives with the

679

committee recommendation.

680

(d) If proposed legislation addressing the committee's

681

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

682

enacted into law, the proposed rule is suspended until specific

683

delegated legislative authority for the proposed rule has been

684

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

685

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

686

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

687

is enacted into law, the suspension shall expire upon publication

688

of notice of modification or amendment in the Florida

689

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

690

law, the suspension shall remain in effect until notification of

691

repeal of the rule is published in the Florida Administrative

692

Weekly.

693

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

694

available issue of the Florida Administrative Weekly the final

695

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

696

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

697

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

698

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

699

of the law in the Florida Administrative Code and publish a

700

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

701

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

702

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

703

to read:

704

120.55 Publication.--

705

(1) The Department of State shall:

706

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

707

publish the "Florida Administrative Code." The Florida

708

Administrative Code shall contain all rules adopted by each

709

agency, citing the grant of specific rulemaking authority and the

710

specific law implemented pursuant to which each rule was adopted,

711

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

712

and complete indexes to all rules contained in the code.

713

Supplementation shall be made as often as practicable, but at

714

least monthly. The department may contract with a publishing firm

715

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

716

Administrative Code; however, the department shall retain

717

responsibility for the code as provided in this section. This

718

publication shall be the official compilation of the

719

administrative rules of this state. The Department of State shall

720

retain the copyright over the Florida Administrative Code.

721

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

722

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

723

thereof, or state university rules relating to internal personnel

724

or business and finance shall not be published in the Florida

725

Administrative Code. Exclusion from publication in the Florida

726

Administrative Code shall not affect the validity or

727

effectiveness of such rules.

728

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

729

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

730

department shall publish the address and telephone number of the

731

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

732

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

733

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

734

rules may be inspected.

735

4. Forms shall not be published in the Florida

736

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

737

dealings with the public, along with any accompanying

738

instructions, shall be filed with the committee before it is

739

used. Any form or instruction which meets the definition of

740

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

741

into the appropriate rule. The reference shall specifically state

742

that the form is being incorporated by reference and shall

743

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

744

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

745

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

746

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

747

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

748

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

749

incorporated.

750

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

751

rules, notices, and other materials submitted for filing and

752

establish the form for their certification.

753

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

754

agency, whether published in the Florida Administrative Code or

755

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

756

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

757

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

758

upon which the rule was approved.

759

Section 9. Effective July 1, 2010, paragraph (a) of

760

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

761

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

762

120.55 Publication.--

763

(1) The Department of State shall:

764

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

765

publish electronically, on an Internet website managed by the

766

department, the "Florida Administrative Code." The Florida

767

Administrative Code shall contain all rules adopted by each

768

agency, citing the grant of rulemaking authority and the specific

769

law implemented pursuant to which each rule was adopted, all

770

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

771

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

772

material required or authorized by law or deemed useful by the

773

department. The electronic code shall display each rule chapter

774

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

775

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

776

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

777

publish a printed version of the Florida Administrative Code and

778

may contract with a publishing firm for such printed the

779

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

780

Administrative Code; however, the department shall retain

781

responsibility for the code as provided in this section.

782

Supplementation of the printed code shall be made as often as

783

practicable, but at least monthly. The printed This publication

784

shall be the official compilation of the administrative rules of

785

this state. The Department of State shall retain the copyright

786

over the Florida Administrative Code.

787

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

788

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

789

thereof, or state university rules relating to internal personnel

790

or business and finance shall not be published in the Florida

791

Administrative Code. Exclusion from publication in the Florida

792

Administrative Code shall not affect the validity or

793

effectiveness of such rules.

794

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

795

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

796

department shall publish the address and telephone number of the

797

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

798

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

799

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

800

rules may be inspected.

801

4. Forms shall not be published in the Florida

802

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

803

dealings with the public, along with any accompanying

804

instructions, shall be filed with the committee before it is

805

used. Any form or instruction which meets the definition of

806

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

807

into the appropriate rule. The reference shall specifically state

808

that the form is being incorporated by reference and shall

809

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

810

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

811

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

812

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

813

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

814

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

815

incorporated.

816

5. The department shall allow material incorporated by

817

reference to be filed in electronic form as prescribed by

818

department rule. When a rule is filed for adoption with

819

incorporated material in electronic form, the department's

820

publication of the Florida Administrative Code on its Internet

821

website must contain a hyperlink from the incorporating reference

822

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

823

allow hyperlinks from rules in the Florida Administrative Code to

824

any material other than that filed with and maintained by the

825

department, but may allow hyperlinks to incorporated material

826

maintained by the department from the adopting agency's website

827

or other sites.

828

(2) The Florida Administrative Weekly Internet website must

829

allow users to:

830

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

831

number, word, subject, and agency;

832

(b) Search a database that makes available all notices

833

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

834

835

selected notices to be sent out before or concurrently with

836

weekly publication of the printed and electronic Florida

837

Administrative Weekly. Such notification must include in the text

838

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

839

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

840

department in electronic form and incorporated by reference in

841

proposed rules; and

842

(e) Comment on proposed rules.

843

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

844

section 120.56, Florida Statutes, are amended to read:

845

120.56 Challenges to rules.--

846

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

847

(a) Any substantially affected person may seek an

848

administrative determination of the invalidity of any proposed

849

rule by filing a petition seeking such a determination with the

850

division within 21 days after the date of publication of the

851

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

852

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

853

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

854

preparation of a statement of estimated regulatory costs required

855

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

856

persons who submitted a lower cost regulatory alternative and

857

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

858

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

859

petition shall state with particularity the objections to the

860

proposed rule and the reasons that the proposed rule is an

861

invalid exercise of delegated legislative authority. The

862

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

863

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

864

proposed rule is not an invalid exercise of delegated legislative

865

authority as to the objections raised. Any person who is

866

substantially affected by a change in the proposed rule may seek

867

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

868

substantially affected by the proposed rule as initially noticed,

869

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

870

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

871

limited to challenging the change to the proposed rule.

872

(b) The administrative law judge may declare the proposed

873

rule wholly or partly invalid. Unless the decision of the

874

administrative law judge is reversed on appeal, the proposed rule

875

or provision of a proposed rule declared invalid shall not be

876

adopted. After a petition for administrative determination has

877

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

878

in the rulemaking process, including the holding of a factfinding

879

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

880

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

881

withdraw the proposed rule in its entirety. The agency whose

882

proposed rule has been declared invalid in whole or part shall

883

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

884

Florida Administrative Weekly.

885

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

886

section 120.56, Florida Statutes, is amended to read:

887

120.56 Challenges to rules.--

888

(4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES; SPECIAL

889

PROVISIONS.--

890

(a) Any person substantially affected by an agency

891

statement may seek an administrative determination that the

892

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

893

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

894

shall state with particularity facts sufficient to show that the

895

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

896

has not adopted the statement by the rulemaking procedure

897

provided by s. 120.54.

898

(b) The administrative law judge may extend the hearing

899

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

900

Upon notification to the administrative law judge provided before

901

the final hearing that the agency has published a notice of

902

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

903

operate as a stay of proceedings pending adoption of the

904

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

905

stay for good cause shown. A stay of proceedings pending

906

rulemaking shall remain in effect so long as the agency is

907

proceeding expeditiously and in good faith to adopt the statement

908

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

909

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

910

proving that rulemaking is not feasible or not and practicable

911

under s. 120.54(1)(a).

912

913

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

914

the administrative law judge shall constitute a final order. The

915

division shall transmit a copy of the final order to the

916

Department of State and the committee. The Department of State

917

shall publish notice of the final order in the first available

918

issue of the Florida Administrative Weekly.

919

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

920

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

921

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

922

reliance upon the statement or any substantially similar

923

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

924

be construed to impair the obligation of contracts existing at

925

the time the final order is entered.

926

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

927

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

928

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

929

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

930

presumption is created that the agency is acting expeditiously

931

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

932

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

933

substantially similar statement as a basis for agency action if

934

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

935

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

936

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

937

agency publishes a notice of rule development which addresses the

938

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

939

notice has been transmitted to the Florida Administrative Weekly

940

for publication, then such publication shall constitute good

941

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

942

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

943

publishes proposed rules within this 30-day period or any

944

extension of that period granted by an administrative law judge

945

upon showing of good cause, then the administrative law judge

946

shall place the case in abeyance pending the outcome of

947

rulemaking and any proceedings involving challenges to proposed

948

rules pursuant to subsection (2).

949

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

950

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

951

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

952

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

953

proceeds expeditiously and in good faith to adopt rules that

954

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

955

the statement or a substantially similar statement as a basis for

956

agency action if the statement meets the requirements of s.

957

120.57(1)(e).

958

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

959

statement within 180 days after publishing proposed rules, for

960

purposes of this subsection, a presumption is created that the

961

agency is not acting expeditiously and in good faith to adopt

962

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

963

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

964

tolled until a final order is entered in that proceeding.

965

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

966

statement are determined to be an invalid exercise of delegated

967

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

968

agency must immediately discontinue reliance on the statement and

969

any substantially similar statement until the rules addressing

970

the subject are properly adopted, and the administrative law

971

judge shall enter a final order to that effect.

972

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

973

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

974

proceeding pursuant to this subsection may be consolidated with a

975

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

976

this chapter. Nothing in This paragraph does not shall be

977

construed to prevent a party whose substantial interests have

978

been determined by an agency action from bringing a proceeding

979

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

980

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

981

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

982

read:

983

120.57 Additional procedures for particular cases.--

984

(1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING

985

DISPUTED ISSUES OF MATERIAL FACT.--

986

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

987

Any agency action that determines the substantial interests of a

988

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

989

law judge shall determine whether an agency statement constitutes

990

an unadopted rule. This subparagraph does not preclude

991

application of adopted rules and applicable provisions of law to

992

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

993

administrative law judge.

994

2. Notwithstanding subparagraph 1., if an agency

995

demonstrates that the statute being implemented directs it to

996

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

997

rules because the requirement was so recently enacted, and that

998

the agency has initiated rulemaking and is proceeding

999

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

1000

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

1001

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

1002

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

1003

must demonstrate that the unadopted rule:

1004

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

1005

the Legislature or, if the agency is operating pursuant to

1006

authority derived from the State Constitution, is within that

1007

authority;

1008

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

1009

provisions of law implemented;

1010

c. Is not vague, establishes adequate standards for agency

1011

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

1012

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

1013

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

1014

capricious if it is adopted without thought or reason or is

1015

irrational;

1016

e. Is not being applied to the substantially affected party

1017

without due notice; and

1018

f. Does not impose excessive regulatory costs on the

1019

regulated person, county, or city.

1020

3. The recommended and final orders in any proceeding shall

1021

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

1022

that the administrative law judge's determination regarding an

1023

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

1024

rejected by the agency unless the agency first determines from a

1025

review of the complete record, and states with particularity in

1026

the order, that such determination is clearly erroneous or does

1027

not comply with essential requirements of law. In any proceeding

1028

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

1029

rejection of the determination regarding the unadopted rule does

1030

not comport with the provisions of this subparagraph, the agency

1031

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

1032

prevailing party the reasonable costs and a reasonable attorney's

1033

fee for the initial proceeding and the proceeding for review.

1034

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

1035

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

1036

read:

1037

120.595 Attorney's fees.--

1038

(2) CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO SECTION

1039

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

1040

declares a proposed rule or portion of a proposed rule invalid

1041

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

1042

against the agency for reasonable costs and reasonable attorney's

1043

fees, unless the agency demonstrates that its actions were

1044

substantially justified or special circumstances exist which

1045

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

1046

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

1047

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

1048

agency prevails in the proceedings, the appellate court or

1049

administrative law judge shall award reasonable costs and

1050

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

1051

or administrative law judge determines that a party participated

1052

in the proceedings for an improper purpose as defined by

1053

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

1054

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

1055

(3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO SECTION

1056

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

1057

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

1058

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

1059

against the agency for reasonable costs and reasonable attorney's

1060

fees, unless the agency demonstrates that its actions were

1061

substantially justified or special circumstances exist which

1062

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

1063

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

1064

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

1065

agency prevails in the proceedings, the appellate court or

1066

administrative law judge shall award reasonable costs and

1067

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

1068

or administrative law judge determines that a party participated

1069

in the proceedings for an improper purpose as defined by

1070

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

1071

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

1072

(4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

1073

120.56(4).--

1074

(a) If the appellate court or administrative law judge

1075

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

1076

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

1077

must immediately discontinue reliance on the statement and any

1078

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

1079

judgment or order shall be entered against the agency for the

1080

administrative law judge shall award reasonable costs and

1081

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

1082

demonstrates that the statement is required by the Federal

1083

Government to implement or retain a delegated or approved program

1084

or to meet a condition to receipt of federal funds.

1085

(b) Upon notification to the administrative law judge

1086

provided before the final hearing that the agency has published a

1087

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

1088

automatically operate as a stay of proceedings pending

1089

rulemaking. The administrative law judge may vacate the stay for

1090

good cause shown. A stay of proceedings under this paragraph

1091

remains in effect so long as the agency is proceeding

1092

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

1093

The administrative law judge shall award reasonable costs and

1094

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

1095

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

1096

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

1097

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

1098

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

1099

a finding that the agency received notice that the statement may

1100

constitute an unadopted rule at least 30 days before a petition

1101

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

1102

publish the required notice of rulemaking pursuant to s.

1103

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

1104

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

1105

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

1106

substantially the same information, or a petition filed pursuant

1107

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

1108

paragraph may not exceed $50,000.

1109

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

1110

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

1111

executive director, or equivalent administrative officer of the

1112

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

1113

award or reimbursement for payment of an award under any

1114

provision of law.

1115

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

1116

appellate court or administrative law judge shall award

1117

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

1118

appellate court or administrative law judge determines that the

1119

party participated in the proceedings for an improper purpose as

1120

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

1121

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

1122

by the material facts necessary to establish the claim or would

1123

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

1124

material facts.

1125

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

1126

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

1127

120.569 Decisions which affect substantial interests.--

1128

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

1129

in which the substantial interests of a party are determined by

1130

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

1131

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

1132

whenever the proceeding involves a disputed issue of material

1133

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

1134

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

1135

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

1136

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

1137

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

1138

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

1139

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

1140

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

1141

Each notice shall inform the recipient of any administrative

1142

hearing or judicial review that is available under this section,

1143

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

1144

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

1145

state the time limits which apply.

1146

(2)

1147

1148

for hearing shall include those items required by the uniform

1149

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

1150

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

1151

shall carefully review the petition to determine if it contains

1152

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

1153

it is not in substantial compliance with these requirements or it

1154

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

1155

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

1156

amended petition curing the defect, unless it conclusively

1157

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

1158

cured. The agency shall promptly give written notice to all

1159

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

1160

particularity its reasons if the petition is not granted, and

1161

shall state the deadline for filing an amended petition if

1162

applicable. This paragraph does not eliminate the availability of

1163

equitable tolling as a defense to the untimely filing of a

1164

petition.

1165

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

1166

Statutes, is amended to read:

1167

120.74 Agency review, revision, and report.--

1168

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

1169

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

1170

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

1171

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

1172

appropriate standing committee of the Legislature, which

1173

certifies that the agency has complied with the requirements of

1174

this section subsection. The report must specify any changes made

1175

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

1176

recommend statutory changes that will promote efficiency, reduce

1177

paperwork, or decrease costs to government and the private

1178

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

1179

in which the agency is involved which should be conducted under

1180

the summary hearing process described in s. 120.574.

1181

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

1182

Statutes, is amended to read:

1183

120.80 Exceptions and special requirements; agencies.--

1184

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

1185

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

1186

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

1187

National Guard, organized militia, and unorganized militia, as

1188

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

1189

as defined by this chapter.

1190

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

1191

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

1192

amended to read:

1193

120.81 Exceptions and special requirements; general

1194

areas.--

1195

(1) EDUCATIONAL UNITS.--

1196

1197

test scoring criteria, or testing procedures relating to student

1198

assessment which are developed or administered by the Department

1199

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

1200

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

1201

law, are not rules.

1202

(3) PRISONERS AND PAROLEES.--

1203

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

1204

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

1205

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

1206

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

1207

action. Prisoners are not eligible to seek an administrative

1208

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

1209

shall not be considered parties for purposes of agency action or

1210

judicial review when the proceedings relate to the rescission or

1211

revocation of parole.

1212

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

1213

409.175, Florida Statutes, is amended to read:

1214

409.175 Licensure of family foster homes, residential

1215

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

1216

exemption.--

1217

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

1218

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

1219

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

1220

foster home or other facility and is not a professional license

1221

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

1222

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

1223

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

1224

entitlement. This privilege must guide the finder of fact or

1225

trier of law at any administrative proceeding or court action

1226

initiated by the department.

1227

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

1228

420.9072, Florida Statutes, is amended to read:

1229

420.9072 State Housing Initiatives Partnership

1230

Program.--The State Housing Initiatives Partnership Program is

1231

created for the purpose of providing funds to counties and

1232

eligible municipalities as an incentive for the creation of local

1233

housing partnerships, to expand production of and preserve

1234

affordable housing, to further the housing element of the local

1235

government comprehensive plan specific to affordable housing, and

1236

to increase housing-related employment.

1237

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

1238

s. 420.6015, the Legislature finds that affordable housing is

1239

most effectively provided by combining available public and

1240

private resources to conserve and improve existing housing and

1241

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

1242

households, and moderate-income households. The Legislature

1243

intends to encourage partnerships in order to secure the benefits

1244

of cooperation by the public and private sectors and to reduce

1245

the cost of housing for the target group by effectively combining

1246

all available resources and cost-saving measures. The Legislature

1247

further intends that local governments achieve this combination

1248

of resources by encouraging active partnerships between

1249

government, lenders, builders and developers, real estate

1250

professionals, advocates for low-income persons, and community

1251

groups to produce affordable housing and provide related

1252

services. Extending the partnership concept to encompass

1253

cooperative efforts among small counties as defined in s.

1254

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

1255

is specifically encouraged. Local governments are also intended

1256

to establish an affordable housing advisory committee to

1257

recommend monetary and nonmonetary incentives for affordable

1258

housing as provided in s. 420.9076.

1259

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

1260

Statutes, is amended to read:

1261

420.9075 Local housing assistance plans; partnerships.--

1262

(7) The moneys deposited in the local housing assistance

1263

trust fund shall be used to administer and implement the local

1264

housing assistance plan. The cost of administering the plan may

1265

not exceed 5 percent of the local housing distribution moneys and

1266

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

1267

eligible municipality may not exceed the 5-percent limitation on

1268

administrative costs, unless its governing body finds, by

1269

resolution, that 5 percent of the local housing distribution plus

1270

5 percent of program income is insufficient to adequately pay the

1271

necessary costs of administering the local housing assistance

1272

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

1273

percent of the local housing distribution plus 5 percent of

1274

program income deposited into the trust fund, except that small

1275

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

1276

municipalities receiving a local housing distribution of up to

1277

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

1278

administrative costs.

1279

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

1280

sum of $50,000 is appropriated in lump sum from the Records

1281

Management Trust Fund to the Department of State, and for the

1282

2009-2010 fiscal year, the nonrecurring sum of $401,000 is

1283

appropriated in lump sum from the Records Management Trust Fund

1284

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

1285

provisions of this act requiring the implementation of electronic

1286

publications. To cover this nonrecurring cost to implement system

1287

modifications, the Department of State shall temporarily increase

1288

the space rate charge for publication in the Florida

1289

Administrative Weekly. After implementation of the required

1290

system changes, the department shall decrease the fee to the

1291

2007-2008 fiscal year level. Funds appropriated shall be held in

1292

a lump-sum category, contingent on available cash deposited into

1293

the trust fund and derived from the fee increase. Funds collected

1294

from the fee increase and not expended by June 30, 2009, may be

1295

retained in the trust fund to complete the system implementation

1296

as appropriated in the 2009-2010 fiscal year.

1297

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

1298

of State is authorized one additional full-time equivalent

1299

position, salary rate of 16,969, and the recurring sum of $22,399

1300

in salaries and benefits from the Records Management Trust Fund

1301

for the purpose of handling administrative and system

1302

requirements in carrying out the provisions of this act related

1303

to electronic publications.

1304

Section 23. Notwithstanding s. 120.55(8)(b), Florida

1305

Statutes, on July 1, 2009, the unencumbered balance in the

1306

Records Management Trust Fund for fees collected pursuant to

1307

chapter 120, Florida Statutes, may not exceed $300,000 plus any

1308

funds collected, but not expended, from the fee increase

1309

implemented to fund the provisions of this act. By June 30, 2009,

1310

any funds in excess of this amount shall be transferred to the

1311

General Revenue Fund. This section expires August 1, 2009.

1312

Section 24. Except as otherwise expressly provided in this

1313

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

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