HB 7127

1
A bill to be entitled
2An act relating to administrative procedures; providing a
3short title; amending s. 120.52, F.S.; redefining the term
4"invalid exercise of delegated legislative authority" to
5remove a limitation on the construction of statutory
6language granting rulemaking authority; defining the terms
7"law implemented," "rulemaking authority," and "unadopted
8rule"; amending s. 120.53, F.S.; authorizing agencies to
9transmit agency orders electronically to the Division of
10Administrative Hearings; amending s. 120.536, F.S.;
11revising guidelines for the construction of statutory
12language granting rulemaking authority; amending s.
13120.54, F.S.; prescribing limits and guidelines with
14respect to the incorporation of material by reference;
15prescribing requirements for material being incorporated
16by reference; prohibiting an agency head from delegating
17or transferring certain specified rulemaking
18responsibilities; revising the information required in
19notices of proposed actions; providing additional
20procedures for rule-adoption hearings; revising
21requirements for filing rules; requiring that material
22incorporated by reference be published by the agency when
23adopting emergency rules; revising provisions with respect
24to petitions to initiate rulemaking; amending s. 120.545,
25F.S.; revising duties and procedures of the Administrative
26Procedures Committee and agencies with respect to review
27of agency rules; deleting procedures for agency election
28to modify, withdraw, amend, or repeal a proposed rule;
29providing for the effect of the failure of an agency to
30respond to a committee objection to a statement of
31estimated regulatory costs within the time prescribed;
32deleting a requirement that the Department of State
33publish final legislative action; amending s. 120.55,
34F.S.; requiring the department to prescribe by rule the
35content requirements for rules, notices, and other
36materials; conforming a cross-reference; requiring
37electronic publication of the Florida Administrative Code;
38prescribing requirements with respect to the content of
39such electronic publication; providing for filing
40information incorporated by reference in electronic form;
41providing requirements for the Florida Administrative
42Weekly Internet website; amending s. 120.56, F.S.,
43relating to challenges to rules; conforming a cross-
44reference; revising procedures for administrative
45determinations of the invalidity of rules; requiring an
46agency to discontinue reliance on a statement under
47certain circumstances; providing an exception; deleting
48certain provisions relating to actions before a final
49hearing is held; amending s. 120.57, F.S.; revising
50procedures applicable to hearings involving disputed
51issues of material fact; prohibiting enforcement of
52unadopted agency rules under certain circumstances;
53amending s. 120.595, F.S.; increasing the limitation on
54attorney's fees in challenges to proposed agency rules or
55existing agency rules; providing for an award of
56reasonable costs and attorney's fees accrued by a
57petitioner under certain circumstances; providing for an
58award of fees and costs if the agency prevails and a party
59participated for an improper purpose; amending s. 120.569,
60F.S.; requiring that certain administrative proceedings be
61terminated and subsequently reinstated under different
62provisions of law if a disputed issue of material fact
63arises during the proceeding; conforming a cross-
64reference; amending s. 120.74, F.S.; revising a reporting
65requirement for agency heads; amending ss. 120.80, 120.81,
66409.175, 420.9072, and 420.9075, F.S.; conforming cross-
67references; providing appropriations; providing for a
68temporary increase in the space rate charge for
69publication in the Florida Administrative Weekly;
70providing for a temporary revision of provisions imposing
71a cap on the unencumbered balance in the Records
72Management Trust Fund; providing effective dates.
73
74Be It Enacted by the Legislature of the State of Florida:
75
76     Section 1.  This act may be cited as the "Open Government
77Act."
78     Section 2.  Subsection (8) of section 120.52, Florida
79Statutes, is amended, present subsections (9) through (15) of
80that section are renumbered as subsections (10) through (16),
81respectively, present subsections (16), (17), (18), and (19) of
82that section are redesignated as subsections (18), (19), (21),
83and (22), respectively, and new subsections (9), (17), and (20)
84are added to that section, to read:
85     120.52  Definitions.--As used in this act:
86     (8)  "Invalid exercise of delegated legislative authority"
87means action that which goes beyond the powers, functions, and
88duties delegated by the Legislature. A proposed or existing rule
89is an invalid exercise of delegated legislative authority if any
90one of the following applies:
91     (a)  The agency has materially failed to follow the
92applicable rulemaking procedures or requirements set forth in
93this chapter;
94     (b)  The agency has exceeded its grant of rulemaking
95authority, citation to which is required by s. 120.54(3)(a)1.;
96     (c)  The rule enlarges, modifies, or contravenes the
97specific provisions of law implemented, citation to which is
98required by s. 120.54(3)(a)1.;
99     (d)  The rule is vague, fails to establish adequate
100standards for agency decisions, or vests unbridled discretion in
101the agency;
102     (e)  The rule is arbitrary or capricious. A rule is
103arbitrary if it is not supported by logic or the necessary
104facts; a rule is capricious if it is adopted without thought or
105reason or is irrational; or
106     (f)  The rule imposes regulatory costs on the regulated
107person, county, or city which could be reduced by the adoption
108of less costly alternatives that substantially accomplish the
109statutory objectives.
110
111A grant of rulemaking authority is necessary but not sufficient
112to allow an agency to adopt a rule; a specific law to be
113implemented is also required. An agency may adopt only rules
114that implement or interpret the specific powers and duties
115granted by the enabling statute. No agency shall have authority
116to adopt a rule only because it is reasonably related to the
117purpose of the enabling legislation and is not arbitrary and
118capricious or is within the agency's class of powers and duties,
119nor shall an agency have the authority to implement statutory
120provisions setting forth general legislative intent or policy.
121Statutory language granting rulemaking authority or generally
122describing the powers and functions of an agency shall be
123construed to extend no further than implementing or interpreting
124the specific powers and duties conferred by the enabling statute
125by the same statute.
126     (9)  "Law implemented" means the language of the enabling
127statute being carried out or interpreted by an agency through
128rulemaking.
129     (17)  "Rulemaking authority" means statutory language that
130explicitly authorizes or requires an agency to adopt, develop,
131establish, or otherwise create any statement coming within the
132definition of the term "rule."
133     (20)  "Unadopted rule" means an agency statement that meets
134the definition of the term "rule," but that has not been adopted
135pursuant to the requirements of s. 120.54.
136     Section 3.  Paragraph (a) of subsection (2) of section
137120.53, Florida Statutes, is amended to read:
138     120.53  Maintenance of orders; indexing; listing;
139organizational information.--
140     (2)(a)  An agency may comply with subparagraphs (1)(a)1.
141and 2. by designating an official reporter to publish and index
142by subject matter each agency order that must be indexed and
143made available to the public or by electronically transmitting
144to the division a copy of such orders for posting on the
145division's website. An agency is in compliance with subparagraph
146(1)(a)3. if it publishes in its designated reporter a list of
147each agency final order that must be listed and preserves each
148listed order and makes it available for public inspection and
149copying.
150     Section 4.  Subsection (1) of section 120.536, Florida
151Statutes, is amended to read:
152     120.536  Rulemaking authority; repeal; challenge.--
153     (1)  A grant of rulemaking authority is necessary but not
154sufficient to allow an agency to adopt a rule; a specific law to
155be implemented is also required. An agency may adopt only rules
156that implement or interpret the specific powers and duties
157granted by the enabling statute. No agency shall have authority
158to adopt a rule only because it is reasonably related to the
159purpose of the enabling legislation and is not arbitrary and
160capricious or is within the agency's class of powers and duties,
161nor shall an agency have the authority to implement statutory
162provisions setting forth general legislative intent or policy.
163Statutory language granting rulemaking authority or generally
164describing the powers and functions of an agency shall be
165construed to extend no further than implementing or interpreting
166the specific powers and duties conferred by the enabling statute
167by the same statute.
168     Section 5.  Paragraph (i) of subsection (1), paragraphs
169(a), (c), and (e) of subsection (3), paragraph (a) of subsection
170(4), and subsection (7) of section 120.54, Florida Statutes, are
171amended, and paragraph (k) is added to subsection (1) of that
172section, to read:
173     120.54  Rulemaking.--
174     (1)  GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN
175EMERGENCY RULES.--
176     (i)1.  A rule may incorporate material by reference but
177only as the material exists on the date the rule is adopted. For
178purposes of the rule, changes in the material are not effective
179unless the rule is amended to incorporate the changes.
180     2.  An agency rule that incorporates by specific reference
181another rule of that agency automatically incorporates
182subsequent amendments to the referenced rule unless a contrary
183intent is clearly indicated in the referencing rule. A notice of
184amendments to a rule that has been incorporated by specific
185reference in other rules of that agency must explain the effect
186of those amendments on the referencing rules.
187     3.  In rules adopted after December 31, 2010, material may
188not be incorporated by reference unless:
189     a.  The material has been submitted in the prescribed
190electronic format to the Department of State and the full text
191of the material can be made available for free public access
192through an electronic hyperlink from the rule making the
193reference in the Florida Administrative Code; or
194     b.  The agency has determined that posting the material on
195the Internet for purposes of public examination and inspection
196would constitute a violation of federal copyright law, in which
197case a statement to that effect, along with the address of
198locations at the Department of State and the agency at which the
199material is available for public inspection and examination,
200must be included in the notice required by subparagraph (3)(a)1.
201     4.  A rule may not be amended by reference only. Amendments
202must set out the amended rule in full in the same manner as
203required by the State Constitution for laws. The Department of
204State may prescribe by rule requirements for incorporating
205materials by reference pursuant to this paragraph.
206     5.2.  Notwithstanding any contrary provision in this
207section, when an adopted rule of the Department of Environmental
208Protection or a water management district is incorporated by
209reference in the other agency's rule to implement a provision of
210part IV of chapter 373, subsequent amendments to the rule are
211not effective as to the incorporating rule unless the agency
212incorporating by reference notifies the committee and the
213Department of State of its intent to adopt the subsequent
214amendment, publishes notice of such intent in the Florida
215Administrative Weekly, and files with the Department of State a
216copy of the amended rule incorporated by reference. Changes in
217the rule incorporated by reference are effective as to the other
218agency 20 days after the date of the published notice and filing
219with the Department of State. The Department of State shall
220amend the history note of the incorporating rule to show the
221effective date of such change. Any substantially affected person
222may, within 14 days after the date of publication of the notice
223of intent in the Florida Administrative Weekly, file an
224objection to rulemaking with the agency. The objection shall
225specify the portions of the rule incorporated by reference to
226which the person objects and the reasons for the objection. The
227agency shall not have the authority under this subparagraph to
228adopt those portions of the rule specified in such objection.
229The agency shall publish notice of the objection and of its
230action in response in the next available issue of the Florida
231Administrative Weekly.
232     6.  The Department of State may adopt by rule requirements
233for incorporating materials pursuant to this paragraph.
234     (k)  An agency head may delegate the authority to initiate
235rule development under subsection (2); however, rulemaking
236responsibilities of an agency head under subparagraph (3)(a)1.,
237subparagraph (3)(e)1., or subparagraph (3)(e)6. may not be
238delegated or transferred.
239     (3)  ADOPTION PROCEDURES.--
240     (a)  Notices.--
241     1.  Prior to the adoption, amendment, or repeal of any rule
242other than an emergency rule, an agency, upon approval of the
243agency head, shall give notice of its intended action, setting
244forth a short, plain explanation of the purpose and effect of
245the proposed action; the full text of the proposed rule or
246amendment and a summary thereof; a reference to the grant of
247specific rulemaking authority pursuant to which the rule is
248adopted; and a reference to the section or subsection of the
249Florida Statutes or the Laws of Florida being implemented or,
250interpreted, or made specific. The notice must shall include a
251summary of the agency's statement of the estimated regulatory
252costs, if one has been prepared, based on the factors set forth
253in s. 120.541(2), and a statement that any person who wishes to
254provide the agency with information regarding the statement of
255estimated regulatory costs, or to provide a proposal for a lower
256cost regulatory alternative as provided by s. 120.541(1), must
257do so in writing within 21 days after publication of the notice.
258The notice must state the procedure for requesting a public
259hearing on the proposed rule. Except when the intended action is
260the repeal of a rule, the notice must shall include a reference
261both to the date on which and to the place where the notice of
262rule development that is required by subsection (2) appeared.
263     2.  The notice shall be published in the Florida
264Administrative Weekly not less than 28 days prior to the
265intended action. The proposed rule shall be available for
266inspection and copying by the public at the time of the
267publication of notice.
268     3.  The notice shall be mailed to all persons named in the
269proposed rule and to all persons who, at least 14 days prior to
270such mailing, have made requests of the agency for advance
271notice of its proceedings. The agency shall also give such
272notice as is prescribed by rule to those particular classes of
273persons to whom the intended action is directed.
274     4.  The adopting agency shall file with the committee, at
275least 21 days prior to the proposed adoption date, a copy of
276each rule it proposes to adopt; a copy of any material
277incorporated by reference in the rule; a detailed written
278statement of the facts and circumstances justifying the proposed
279rule; a copy of any statement of estimated regulatory costs that
280has been prepared pursuant to s. 120.541; a statement of the
281extent to which the proposed rule relates to federal standards
282or rules on the same subject; and the notice required by
283subparagraph 1.
284     (c)  Hearings.--
285     1.  If the intended action concerns any rule other than one
286relating exclusively to procedure or practice, the agency shall,
287on the request of any affected person received within 21 days
288after the date of publication of the notice of intended agency
289action, give affected persons an opportunity to present evidence
290and argument on all issues under consideration. The agency may
291schedule a public hearing on the rule and, if requested by any
292affected person, shall schedule a public hearing on the rule. If
293the agency head is a board or other collegial body created under
294s. 20.165(4) or s. 20.43(3)(g), and one or more requested public
295hearings are scheduled, the board or other collegial body shall
296conduct at least one of the public hearings itself and may not
297delegate this responsibility without the consent of those
298persons requesting the public hearing. Any material pertinent to
299the issues under consideration submitted to the agency within 21
300days after the date of publication of the notice or submitted at
301a public hearing shall be considered by the agency and made a
302part of the record of the rulemaking proceeding.
303     2.  Rulemaking proceedings shall be governed solely by the
304provisions of this section unless a person timely asserts that
305the person's substantial interests will be affected in the
306proceeding and affirmatively demonstrates to the agency that the
307proceeding does not provide adequate opportunity to protect
308those interests. If the agency determines that the rulemaking
309proceeding is not adequate to protect the person's interests, it
310shall suspend the rulemaking proceeding and convene a separate
311proceeding under the provisions of ss. 120.569 and 120.57.
312Similarly situated persons may be requested to join and
313participate in the separate proceeding. Upon conclusion of the
314separate proceeding, the rulemaking proceeding shall be resumed.
315     (e)  Filing for final adoption; effective date.--
316     1.  If the adopting agency is required to publish its rules
317in the Florida Administrative Code, the agency, upon approval of
318the agency head, it shall file with the Department of State
319three certified copies of the rule it proposes to adopt; one
320copy of any material incorporated by reference in the rule,
321certified by the agency;, a summary of the rule;, a summary of
322any hearings held on the rule;, and a detailed written statement
323of the facts and circumstances justifying the rule. Agencies not
324required to publish their rules in the Florida Administrative
325Code shall file one certified copy of the proposed rule, and the
326other material required by this subparagraph, in the office of
327the agency head, and such rules shall be open to the public.
328     2.  A rule may not be filed for adoption less than 28 days
329or more than 90 days after the notice required by paragraph (a),
330until 21 days after the notice of change required by paragraph
331(d), until 14 days after the final public hearing, until 21 days
332after preparation of a statement of estimated regulatory costs
333required under s. 120.541 has been provided to all persons who
334submitted a lower cost regulatory alternative and made available
335to the public, or until the administrative law judge has
336rendered a decision under s. 120.56(2), whichever applies. When
337a required notice of change is published prior to the expiration
338of the time to file the rule for adoption, the period during
339which a rule must be filed for adoption is extended to 45 days
340after the date of publication. If notice of a public hearing is
341published prior to the expiration of the time to file the rule
342for adoption, the period during which a rule must be filed for
343adoption is extended to 45 days after adjournment of the final
344hearing on the rule, 21 days after receipt of all material
345authorized to be submitted at the hearing, or 21 days after
346receipt of the transcript, if one is made, whichever is latest.
347The term "public hearing" includes any public meeting held by
348any agency at which the rule is considered. If a petition for an
349administrative determination under s. 120.56(2) is filed, the
350period during which a rule must be filed for adoption is
351extended to 60 days after the administrative law judge files the
352final order with the clerk or until 60 days after subsequent
353judicial review is complete.
354     3.  At the time a rule is filed, the agency shall certify
355that the time limitations prescribed by this paragraph have been
356complied with, that all statutory rulemaking requirements have
357been met, and that there is no administrative determination
358pending on the rule.
359     4.  At the time a rule is filed, the committee shall
360certify whether the agency has responded in writing to all
361material and timely written comments or written inquiries made
362on behalf of the committee. The department shall reject any rule
363that is not filed within the prescribed time limits; that does
364not comply with satisfy all statutory rulemaking requirements
365and rules of the department; upon which an agency has not
366responded in writing to all material and timely written
367inquiries or written comments; upon which an administrative
368determination is pending; or which does not include a statement
369of estimated regulatory costs, if required.
370     5.  If a rule has not been adopted within the time limits
371imposed by this paragraph or has not been adopted in compliance
372with all statutory rulemaking requirements, the agency proposing
373the rule shall withdraw the rule and give notice of its action
374in the next available issue of the Florida Administrative
375Weekly.
376     6.  The proposed rule shall be adopted on being filed with
377the Department of State and become effective 20 days after being
378filed, on a later date specified in the rule, or on a date
379required by statute. Rules not required to be filed with the
380Department of State shall become effective when adopted by the
381agency head or on a later date specified by rule or statute. If
382the committee notifies an agency that an objection to a rule is
383being considered, the agency may postpone the adoption of the
384rule to accommodate review of the rule by the committee. When an
385agency postpones adoption of a rule to accommodate review by the
386committee, the 90-day period for filing the rule is tolled until
387the committee notifies the agency that it has completed its
388review of the rule.
389
390For the purposes of this paragraph, the term "administrative
391determination" does not include subsequent judicial review.
392     (4)  EMERGENCY RULES.--
393     (a)  If an agency finds that an immediate danger to the
394public health, safety, or welfare requires emergency action, the
395agency may adopt any rule necessitated by the immediate danger.
396The agency may adopt a rule by any procedure which is fair under
397the circumstances if:
398     1.  The procedure provides at least the procedural
399protection given by other statutes, the State Constitution, or
400the United States Constitution.
401     2.  The agency takes only that action necessary to protect
402the public interest under the emergency procedure.
403     3.  The agency publishes in writing at the time of, or
404prior to, its action the specific facts and reasons for finding
405an immediate danger to the public health, safety, or welfare and
406its reasons for concluding that the procedure used is fair under
407the circumstances. In any event, notice of emergency rules,
408other than those of educational units or units of government
409with jurisdiction in only one or a part of one county, including
410the full text of the rules, shall be published in the first
411available issue of the Florida Administrative Weekly and
412provided to the committee along with any material incorporated
413by reference in the rules. The agency's findings of immediate
414danger, necessity, and procedural fairness shall be judicially
415reviewable.
416     (7)  PETITION TO INITIATE RULEMAKING.--
417     (a)  Any person regulated by an agency or having
418substantial interest in an agency rule may petition an agency to
419adopt, amend, or repeal a rule or to provide the minimum public
420information required by this chapter. The petition shall specify
421the proposed rule and action requested. Not later than 30
422calendar days following the date of filing a petition, the
423agency shall initiate rulemaking proceedings under this chapter,
424otherwise comply with the requested action, or deny the petition
425with a written statement of its reasons for the denial.
426     (b)  If the petition filed under this subsection is
427directed to an unadopted existing rule, which the agency has not
428adopted by the rulemaking procedures or requirements set forth
429in this chapter, the agency shall, not later than 30 days
430following the date of filing a petition, initiate rulemaking, or
431provide notice in the Florida Administrative Weekly that the
432agency will hold a public hearing on the petition within 30 days
433after publication of the notice. The purpose of the public
434hearing is to consider the comments of the public directed to
435the agency rule which has not been adopted by the rulemaking
436procedures or requirements of this chapter, its scope and
437application, and to consider whether the public interest is
438served adequately by the application of the rule on a case-by-
439case basis, as contrasted with its adoption by the rulemaking
440procedures or requirements set forth in this chapter.
441     (c)  Within 30 days following the public hearing provided
442for by paragraph (b), if the agency does not initiate rulemaking
443or otherwise comply with the requested action, the agency shall
444publish in the Florida Administrative Weekly a statement of its
445reasons for not initiating rulemaking or otherwise complying
446with the requested action, and of any changes it will make in
447the scope or application of the unadopted rule. The agency shall
448file the statement with the committee. The committee shall
449forward a copy of the statement to the substantive committee
450with primary oversight jurisdiction of the agency in each house
451of the Legislature. The committee or the committee with primary
452oversight jurisdiction may hold a hearing directed to the
453statement of the agency. The committee holding the hearing may
454recommend to the Legislature the introduction of legislation
455making the rule a statutory standard or limiting or otherwise
456modifying the authority of the agency.
457     Section 6.  Effective January 1, 2009, paragraph (a) of
458subsection (1) of section 120.54, Florida Statutes, is amended
459to read:
460     120.54  Rulemaking.--
461     (1)  GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN
462EMERGENCY RULES.--
463     (a)  Rulemaking is not a matter of agency discretion. Each
464agency statement defined as a rule by s. 120.52 shall be adopted
465by the rulemaking procedure provided by this section as soon as
466feasible and practicable.
467     1.  Rulemaking shall be presumed feasible unless the agency
468proves that:
469     a.  The agency has not had sufficient time to acquire the
470knowledge and experience reasonably necessary to address a
471statement by rulemaking; or
472     b.  Related matters are not sufficiently resolved to enable
473the agency to address a statement by rulemaking; or
474     c.  The agency is currently using the rulemaking procedure
475expeditiously and in good faith to adopt rules which address the
476statement.
477     2.  Rulemaking shall be presumed practicable to the extent
478necessary to provide fair notice to affected persons of relevant
479agency procedures and applicable principles, criteria, or
480standards for agency decisions unless the agency proves that:
481     a.  Detail or precision in the establishment of principles,
482criteria, or standards for agency decisions is not reasonable
483under the circumstances; or
484     b.  The particular questions addressed are of such a narrow
485scope that more specific resolution of the matter is impractical
486outside of an adjudication to determine the substantial
487interests of a party based on individual circumstances.
488     Section 7.  Section 120.545, Florida Statutes, is amended
489to read:
490     120.545  Committee review of agency rules.--
491     (1)  As a legislative check on legislatively created
492authority, the committee shall examine each proposed rule,
493except for those proposed rules exempted by s. 120.81(1)(e) and
494(2), and its accompanying material, and each emergency rule, and
495may examine any existing rule, for the purpose of determining
496whether:
497     (a)  The rule is an invalid exercise of delegated
498legislative authority.
499     (b)  The statutory authority for the rule has been
500repealed.
501     (c)  The rule reiterates or paraphrases statutory material.
502     (d)  The rule is in proper form.
503     (e)  The notice given prior to its adoption was sufficient
504to give adequate notice of the purpose and effect of the rule.
505     (f)  The rule is consistent with expressed legislative
506intent pertaining to the specific provisions of law which the
507rule implements.
508     (g)  The rule is necessary to accomplish the apparent or
509expressed objectives of the specific provision of law which the
510rule implements.
511     (h)  The rule is a reasonable implementation of the law as
512it affects the convenience of the general public or persons
513particularly affected by the rule.
514     (i)  The rule could be made less complex or more easily
515comprehensible to the general public.
516     (j)  The rule's statement of estimated regulatory costs
517complies with the requirements of s. 120.541 and whether the
518rule does not impose regulatory costs on the regulated person,
519county, or city which could be reduced by the adoption of less
520costly alternatives that substantially accomplish the statutory
521objectives.
522     (k)  The rule will require additional appropriations.
523     (l)  If the rule is an emergency rule, there exists an
524emergency justifying the adoption promulgation of such rule, the
525agency is within has exceeded the scope of its statutory
526authority, and the rule was adopted promulgated in compliance
527with the requirements and limitations of s. 120.54(4).
528     (2)  The committee may request from an agency such
529information as is reasonably necessary for examination of a rule
530as required by subsection (1). The committee shall consult with
531legislative standing committees having with jurisdiction over
532the subject areas. If the committee objects to an emergency rule
533or a proposed or existing rule, the committee it shall, within 5
534days after of the objection, certify that fact to the agency
535whose rule has been examined and include with the certification
536a statement detailing its objections with particularity. The
537committee shall notify the Speaker of the House of
538Representatives and the President of the Senate of any objection
539to an agency rule concurrent with certification of that fact to
540the agency. Such notice shall include a copy of the rule and the
541statement detailing the committee's objections to the rule.
542     (3)  Within 30 days after of receipt of the objection, if
543the agency is headed by an individual, or within 45 days after
544of receipt of the objection, if the agency is headed by a
545collegial body, the agency shall:
546     (a)  If the rule is not yet in effect a proposed rule:
547     1.  File notice pursuant to s. 120.54(3)(d) of only such
548modifications as are necessary to address Modify the rule to
549meet the committee's objection;
550     2.  File notice pursuant to s. 120.54(3)(d) of withdrawal
551of withdraw the rule in its entirety; or
552     3.  Notify the committee in writing that the agency refuses
553Refuse to modify or withdraw the rule.
554     (b)  If the rule is in effect an existing rule:
555     1.  File notice pursuant to s. 120.54(3)(a), without prior
556notice of rule development, Notify the committee that it has
557elected to amend the rule to address meet the committee's
558objection and initiate the amendment procedure;
559     2.  File notice pursuant to s. 120.54(3)(a) Notify the
560committee that it has elected to repeal the rule and initiate
561the repeal procedure; or
562     3.  Notify the committee in writing that the agency it
563refuses to amend or repeal the rule.
564     (c)  If the rule is either an existing or a proposed rule
565and the objection is to the statement of estimated regulatory
566costs:
567     1.  Prepare a corrected statement of estimated regulatory
568costs, give notice of the availability of the corrected
569statement in the first available issue of the Florida
570Administrative Weekly, and file a copy of the corrected
571statement with the committee; or
572     2.  Notify the committee that it refuses to prepare a
573corrected statement of estimated regulatory costs.
574     (4)  If the agency elects to modify a proposed rule to meet
575the committee's objection, it shall make only such modifications
576as are necessary to meet the objection and shall resubmit the
577rule to the committee. The agency shall give notice of its
578election to modify a proposed rule to meet the committee's
579objection by publishing a notice of change in the first
580available issue of the Florida Administrative Weekly, but shall
581not be required to conduct a public hearing. If the agency
582elects to amend an existing rule to meet the committee's
583objection, it shall notify the committee in writing and shall
584initiate the amendment procedure by giving notice in the next
585available issue of the Florida Administrative Weekly. The
586committee shall give priority to rules so modified or amended
587when setting its agenda.
588     (5)  If the agency elects to withdraw a proposed rule as a
589result of a committee objection, it shall notify the committee,
590in writing, of its election and shall give notice of the
591withdrawal in the next available issue of the Florida
592Administrative Weekly. The rule shall be withdrawn without a
593public hearing, effective upon publication of the notice in the
594Florida Administrative Weekly. If the agency elects to repeal an
595existing rule as a result of a committee objection, it shall
596notify the committee, in writing, of its election and shall
597initiate rulemaking procedures for that purpose by giving notice
598in the next available issue of the Florida Administrative
599Weekly.
600     (6)  If an agency elects to amend or repeal an existing
601rule as a result of a committee objection, it shall complete the
602process within 90 days after giving notice in the Florida
603Administrative Weekly.
604     (4)(7)  Failure of the agency to respond to a committee
605objection to a proposed rule that is not yet in effect within
606the time prescribed in subsection (3) constitutes shall
607constitute withdrawal of the rule in its entirety. In this
608event, the committee shall notify the Department of State that
609the agency, by its failure to respond to a committee objection,
610has elected to withdraw the proposed rule. Upon receipt of the
611committee's notice, the Department of State shall publish a
612notice to that effect in the next available issue of the Florida
613Administrative Weekly. Upon publication of the notice, the
614proposed rule shall be stricken from the files of the Department
615of State and the files of the agency.
616     (5)(8)  Failure of the agency to respond to a committee
617objection to a an existing rule that is in effect within the
618time prescribed in subsection (3) constitutes shall constitute a
619refusal to amend or repeal the rule.
620     (6)  Failure of the agency to respond to a committee
621objection to a statement of estimated regulatory costs within
622the time prescribed in subsection (3) constitutes a refusal to
623prepare a corrected statement of estimated regulatory costs.
624     (7)(9)  If the committee objects to a proposed or existing
625rule and the agency refuses to modify, amend, withdraw, or
626repeal the rule, the committee shall file with the Department of
627State a notice of the objection, detailing with particularity
628the committee's its objection to the rule. The Department of
629State shall publish this notice in the Florida Administrative
630Weekly. If the rule is published and shall publish, as a history
631note to the rule in the Florida Administrative Code, a reference
632to the committee's objection and to the issue of the Florida
633Administrative Weekly in which the full text thereof appears
634shall be recorded in a history note.
635     (8)(10)(a)  If the committee objects to a proposed or
636existing rule, or portion of a rule thereof, and the agency
637fails to initiate administrative action to modify, amend,
638withdraw, or repeal the rule consistent with the objection
639within 60 days after the objection, or thereafter fails to
640proceed in good faith to complete such action, the committee may
641submit to the President of the Senate and the Speaker of the
642House of Representatives a recommendation that legislation be
643introduced to address the committee's objection modify or
644suspend the adoption of the proposed rule, or amend or repeal
645the rule, or portion thereof.
646     (b)1.  If the committee votes to recommend the introduction
647of legislation to address the committee's objection modify or
648suspend the adoption of a proposed rule, or amend or repeal a
649rule, the committee shall, within 5 days after this
650determination, certify that fact to the agency whose rule or
651proposed rule has been examined. The committee may request that
652the agency temporarily suspend the rule or suspend the adoption
653of the proposed rule, pending consideration of proposed
654legislation during the next regular session of the Legislature.
655     2.  Within 30 days after receipt of the certification, if
656the agency is headed by an individual, or within 45 days after
657receipt of the certification, if the agency is headed by a
658collegial body, the agency shall either:
659     a.  Temporarily suspend the rule or suspend the adoption of
660the proposed rule; or
661     b.  Notify the committee in writing that the agency it
662refuses to temporarily suspend the rule or suspend the adoption
663of the proposed rule.
664     3.  If the agency elects to temporarily suspend the rule or
665suspend the adoption of the proposed rule, the agency it shall
666give notice of the suspension in the Florida Administrative
667Weekly. The rule or the rule adoption process shall be suspended
668upon publication of the notice. An agency may shall not base any
669agency action on a suspended rule or suspended proposed rule, or
670portion of such rule thereof, prior to expiration of the
671suspension. A suspended rule or suspended proposed rule, or
672portion of such rule thereof, continues to be subject to
673administrative determination and judicial review as provided by
674law.
675     4.  Failure of an agency to respond to committee
676certification within the time prescribed by subparagraph 2.
677constitutes a refusal to suspend the rule or to suspend the
678adoption of the proposed rule.
679     (c)  The committee shall prepare proposed legislation bills
680to address the committee's objection modify or suspend the
681adoption of the proposed rule or amend or repeal the rule, or
682portion thereof, in accordance with the rules of the Senate and
683the House of Representatives for prefiling and introduction in
684the next regular session of the Legislature. The proposed
685legislation bill shall be presented to the President of the
686Senate and the Speaker of the House of Representatives with the
687committee recommendation.
688     (d)  If proposed legislation addressing the committee's
689objection a bill to suspend the adoption of a proposed rule is
690enacted into law, the proposed rule is suspended until specific
691delegated legislative authority for the proposed rule has been
692enacted. If a bill to suspend the adoption of a proposed rule
693fails to become law, any temporary agency suspension of the rule
694shall expire. If a bill to modify a proposed rule or amend a
695rule is enacted into law, the suspension shall expire upon
696publication of notice of modification or amendment in the
697Florida Administrative Weekly. If a bill to repeal a rule is
698enacted into law, the suspension shall remain in effect until
699notification of repeal of the rule is published in the Florida
700Administrative Weekly.
701     (e)  The Department of State shall publish in the next
702available issue of the Florida Administrative Weekly the final
703legislative action taken. If a bill to modify or suspend the
704adoption of the proposed rule or amend or repeal the rule, or
705portion thereof, is enacted into law, the Department of State
706shall conform the rule or portion of the rule to the provisions
707of the law in the Florida Administrative Code and publish a
708reference to the law as a history note to the rule.
709     Section 8.  Paragraphs (a) and (d) of subsection (1) and
710subsection (5) of section 120.55, Florida Statutes, are amended
711to read:
712     120.55  Publication.--
713     (1)  The Department of State shall:
714     (a)1.  Through a continuous revision system, compile and
715publish the "Florida Administrative Code." The Florida
716Administrative Code shall contain all rules adopted by each
717agency, citing the grant of specific rulemaking authority and
718the specific law implemented pursuant to which each rule was
719adopted, all history notes as authorized in s. 120.545(7) s.
720120.545(9), and complete indexes to all rules contained in the
721code. Supplementation shall be made as often as practicable, but
722at least monthly. The department may contract with a publishing
723firm for the publication, in a timely and useful form, of the
724Florida Administrative Code; however, the department shall
725retain responsibility for the code as provided in this section.
726This publication shall be the official compilation of the
727administrative rules of this state. The Department of State
728shall retain the copyright over the Florida Administrative Code.
729     2.  Rules general in form but applicable to only one school
730district, community college district, or county, or a part
731thereof, or state university rules relating to internal
732personnel or business and finance shall not be published in the
733Florida Administrative Code. Exclusion from publication in the
734Florida Administrative Code shall not affect the validity or
735effectiveness of such rules.
736     3.  At the beginning of the section of the code dealing
737with an agency that files copies of its rules with the
738department, the department shall publish the address and
739telephone number of the executive offices of each agency, the
740manner by which the agency indexes its rules, a listing of all
741rules of that agency excluded from publication in the code, and
742a statement as to where those rules may be inspected.
743     4.  Forms shall not be published in the Florida
744Administrative Code; but any form which an agency uses in its
745dealings with the public, along with any accompanying
746instructions, shall be filed with the committee before it is
747used. Any form or instruction which meets the definition of
748"rule" provided in s. 120.52 shall be incorporated by reference
749into the appropriate rule. The reference shall specifically
750state that the form is being incorporated by reference and shall
751include the number, title, and effective date of the form and an
752explanation of how the form may be obtained. Each form created
753by an agency which is incorporated by reference in a rule notice
754of which is given under s. 120.54(3)(a) after December 31, 2007,
755must clearly display the number, title, and effective date of
756the form and the number of the rule in which the form is
757incorporated.
758     (d)  Prescribe by rule the style and form required for
759rules, notices, and other materials submitted for filing and
760establish the form for their certification.
761     (5)  Any publication of a proposed rule promulgated by an
762agency, whether published in the Florida Administrative Code or
763elsewhere, shall include, along with the rule, the name of the
764person or persons originating such rule, the name of the agency
765head supervisor or person who approved the rule, and the date
766upon which the rule was approved.
767     Section 9.  Effective July 1, 2010, paragraph (a) of
768subsection (1) and subsection (2) of section 120.55, Florida
769Statutes, as amended by this act, are amended to read:
770     120.55  Publication.--
771     (1)  The Department of State shall:
772     (a)1.  Through a continuous revision system, compile and
773publish electronically the "Florida Administrative Code,." on an
774Internet website managed by the department. The Florida
775Administrative Code shall contain all rules adopted by each
776agency, citing the grant of rulemaking authority and the
777specific law implemented pursuant to which each rule was
778adopted, all history notes as authorized in s. 120.545(7), and
779complete indexes to all rules contained in the code, and any
780other material required or authorized by law or deemed useful by
781the department. The electronic code shall display each rule
782chapter currently in effect in browse mode and allow full text
783search of the code and each rule chapter. Supplementation shall
784be made as often as practicable, but at least monthly. The
785department shall publish a printed version of the Florida
786Administrative Code and may contract with a publishing firm for
787such printed the publication, in a timely and useful form, of
788the Florida Administrative Code; however, the department shall
789retain responsibility for the code as provided in this section.
790Supplementation of the printed code shall be made as often as
791practicable, but at least monthly. The printed This publication
792shall be the official compilation of the administrative rules of
793this state. The Department of State shall retain the copyright
794over the Florida Administrative Code.
795     2.  Rules general in form but applicable to only one school
796district, community college district, or county, or a part
797thereof, or state university rules relating to internal
798personnel or business and finance shall not be published in the
799Florida Administrative Code. Exclusion from publication in the
800Florida Administrative Code shall not affect the validity or
801effectiveness of such rules.
802     3.  At the beginning of the section of the code dealing
803with an agency that files copies of its rules with the
804department, the department shall publish the address and
805telephone number of the executive offices of each agency, the
806manner by which the agency indexes its rules, a listing of all
807rules of that agency excluded from publication in the code, and
808a statement as to where those rules may be inspected.
809     4.  Forms shall not be published in the Florida
810Administrative Code; but any form which an agency uses in its
811dealings with the public, along with any accompanying
812instructions, shall be filed with the committee before it is
813used. Any form or instruction which meets the definition of
814"rule" provided in s. 120.52 shall be incorporated by reference
815into the appropriate rule. The reference shall specifically
816state that the form is being incorporated by reference and shall
817include the number, title, and effective date of the form and an
818explanation of how the form may be obtained. Each form created
819by an agency which is incorporated by reference in a rule notice
820of which is given under s. 120.54(3)(a) after December 31, 2007,
821must clearly display the number, title, and effective date of
822the form and the number of the rule in which the form is
823incorporated.
824     5.  The department shall allow material incorporated by
825reference to be filed in electronic form as prescribed by
826department rule. When a rule is filed for adoption with
827incorporated material in electronic form, the department's
828publication of the Florida Administrative Code on its Internet
829website must contain a hyperlink from the incorporating
830reference in the rule directly to that material. The department
831may not allow hyperlinks from rules in the Florida
832Administrative Code to any material other than that filed with
833and maintained by the department, but it may allow hyperlinks to
834incorporated material maintained by the department from the
835adopting agency's website or other sites.
836     (2)  The Florida Administrative Weekly Internet website
837must allow users to:
838     (a)  Search for notices by type, publication date, rule
839number, word, subject, and agency;
840     (b)  Search a database that makes available all notices
841published on the website for a period of at least 5 years;
842     (c)  Subscribe to an automated e-mail notification of
843selected notices to be sent out before or concurrently with
844weekly publication of the printed and electronic Florida
845Administrative Weekly. Such notification must include in the
846text of the e-mail a summary of the content of each notice;
847     (d)  View agency forms and other materials that have been
848submitted to the department in electronic form and that are
849being incorporated by reference in proposed rules; and
850     (e)  Comment on proposed rules.
851     Section 10.  Paragraphs (a) and (b) of subsection (2) of
852section 120.56, Florida Statutes, are amended to read:
853     120.56  Challenges to rules.--
854     (2)  CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--
855     (a)  Any substantially affected person may seek an
856administrative determination of the invalidity of any proposed
857rule by filing a petition seeking such a determination with the
858division within 21 days after the date of publication of the
859notice required by s. 120.54(3)(a), within 10 days after the
860final public hearing is held on the proposed rule as provided by
861s. 120.54(3)(e)2. s. 120.54(3)(c), within 20 days after the
862preparation of a statement of estimated regulatory costs
863required pursuant to s. 120.541, if applicable, has been
864provided to all persons who submitted a lower cost regulatory
865alternative and made available to the public, or within 20 days
866after the date of publication of the notice required by s.
867120.54(3)(d). The petition shall state with particularity the
868objections to the proposed rule and the reasons that the
869proposed rule is an invalid exercise of delegated legislative
870authority. The petitioner has the burden of going forward. The
871agency then has the burden to prove by a preponderance of the
872evidence that the proposed rule is not an invalid exercise of
873delegated legislative authority as to the objections raised. Any
874person who is substantially affected by a change in the proposed
875rule may seek a determination of the validity of such change.
876Any person not substantially affected by the proposed rule as
877initially noticed, but who is substantially affected by the rule
878as a result of a change, may challenge any provision of the rule
879and is not limited to challenging the change to the proposed
880rule.
881     (b)  The administrative law judge may declare the proposed
882rule wholly or partly invalid. Unless the decision of the
883administrative law judge is reversed on appeal, the proposed
884rule or provision of a proposed rule declared invalid shall not
885be adopted. After a petition for administrative determination
886has been filed However, the agency may proceed with all other
887steps in the rulemaking process, including the holding of a
888factfinding hearing. In the event part of a proposed rule is
889declared invalid, the adopting agency may, in its sole
890discretion, withdraw the proposed rule in its entirety. The
891agency whose proposed rule has been declared invalid in whole or
892part shall give notice of the decision in the first available
893issue of the Florida Administrative Weekly.
894     Section 11.  Effective January 1, 2009, subsection (4) of
895section 120.56, Florida Statutes, is amended to read:
896     120.56  Challenges to rules.--
897     (4)  CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;
898SPECIAL PROVISIONS.--
899     (a)  Any person substantially affected by an agency
900statement may seek an administrative determination that the
901statement violates s. 120.54(1)(a). The petition shall include
902the text of the statement or a description of the statement and
903shall state with particularity facts sufficient to show that the
904statement constitutes a rule under s. 120.52 and that the agency
905has not adopted the statement by the rulemaking procedure
906provided by s. 120.54.
907     (b)  The administrative law judge may extend the hearing
908date beyond 30 days after assignment of the case for good cause.
909Upon notification to the administrative law judge provided prior
910to the final hearing that the agency has published a notice of
911rulemaking under s. 120.54(3), such notice shall automatically
912operate as a stay of proceedings pending adoption of the
913statement as a rule. The administrative law judge may vacate the
914stay for good cause shown. A stay of proceedings pending
915rulemaking shall remain in effect so long as the agency is
916proceeding expeditiously and in good faith to adopt the
917statement as a rule. If a hearing is held and the petitioner
918proves the allegations of the petition, the agency shall have
919the burden of proving that rulemaking is not feasible or not and
920practicable under s. 120.54(1)(a).
921     (c)  The administrative law judge may determine whether all
922or part of a statement violates s. 120.54(1)(a). The decision of
923the administrative law judge shall constitute a final order. The
924division shall transmit a copy of the final order to the
925Department of State and the committee. The Department of State
926shall publish notice of the final order in the first available
927issue of the Florida Administrative Weekly.
928     (d)  If When an administrative law judge enters a final
929order that all or part of an agency statement violates s.
930120.54(1)(a), the agency shall immediately discontinue all
931reliance upon the statement or any substantially similar
932statement as a basis for agency action. This paragraph shall not
933be construed to impair the obligation of contracts existing at
934the time the final order is entered.
935     (e)1.  If, prior to a final hearing to determine whether
936all or part of any agency statement violates s. 120.54(1)(a), an
937agency publishes, pursuant to s. 120.54(3)(a), proposed rules
938that address the statement, then for purposes of this section, a
939presumption is created that the agency is acting expeditiously
940and in good faith to adopt rules that address the statement, and
941the agency shall be permitted to rely upon the statement or a
942substantially similar statement as a basis for agency action if
943the statement meets the requirements of s. 120.57(1)(e).
944     2.  If, prior to the final hearing to determine whether all
945or part of an agency statement violates s. 120.54(1)(a), an
946agency publishes a notice of rule development which addresses
947the statement pursuant to s. 120.54(2), or certifies that such a
948notice has been transmitted to the Florida Administrative Weekly
949for publication, then such publication shall constitute good
950cause for the granting of a stay of the proceedings and a
951continuance of the final hearing for 30 days. If the agency
952publishes proposed rules within this 30-day period or any
953extension of that period granted by an administrative law judge
954upon showing of good cause, then the administrative law judge
955shall place the case in abeyance pending the outcome of
956rulemaking and any proceedings involving challenges to proposed
957rules pursuant to subsection (2).
958     3.  If, following the commencement of the final hearing and
959prior to entry of a final order that all or part of an agency
960statement violates s. 120.54(1)(a), an agency publishes,
961pursuant to s. 120.54(3)(a), proposed rules that address the
962statement and proceeds expeditiously and in good faith to adopt
963rules that address the statement, the agency shall be permitted
964to rely upon the statement or a substantially similar statement
965as a basis for agency action if the statement meets the
966requirements of s. 120.57(1)(e).
967     4.  If an agency fails to adopt rules that address the
968statement within 180 days after publishing proposed rules, for
969purposes of this subsection, a presumption is created that the
970agency is not acting expeditiously and in good faith to adopt
971rules. If the agency's proposed rules are challenged pursuant to
972subsection (2), the 180-day period for adoption of rules is
973tolled until a final order is entered in that proceeding.
974     (e)5.  If the proposed rules addressing the challenged
975statement are determined to be an invalid exercise of delegated
976legislative authority as defined in s. 120.52(8)(b)-(f), the
977agency must immediately discontinue reliance on the statement
978and any substantially similar statement until the rules
979addressing the subject are properly adopted, and the
980administrative law judge shall enter a final order to that
981effect.
982     (f)  All proceedings to determine a violation of s.
983120.54(1)(a) shall be brought pursuant to this subsection. A
984proceeding pursuant to this subsection may be consolidated with
985a proceeding under subsection (3) or under any other section of
986this chapter. Nothing in This paragraph does not shall be
987construed to prevent a party whose substantial interests have
988been determined by an agency action from bringing a proceeding
989pursuant to s. 120.57(1)(e).
990     Section 12.  Effective January 1, 2009, paragraph (e) of
991subsection (1) of section 120.57, Florida Statutes, is amended
992to read:
993     120.57  Additional procedures for particular cases.--
994     (1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING
995DISPUTED ISSUES OF MATERIAL FACT.--
996     (e)1.  An agency or an administrative law judge may not
997base Any agency action that determines the substantial interests
998of a party and that is based on an unadopted rule. The
999administrative law judge shall determine whether an agency
1000statement constitutes an unadopted rule. This subparagraph does
1001not preclude application of adopted rules and applicable
1002provisions of law to the facts unadopted rule is subject to de
1003novo review by an administrative law judge.
1004     2.  Notwithstanding subparagraph 1., if an agency
1005demonstrates that the statute being implemented directs it to
1006adopt rules, that the agency has not had time to adopt those
1007rules because the requirement was so recently enacted, and that
1008the agency has initiated rulemaking and is proceeding
1009expeditiously and in good faith to adopt the required rules,
1010then the agency's action may be based upon those unadopted
1011rules, subject to de novo review by the administrative law
1012judge. The agency action shall not be presumed valid or invalid.
1013The agency must demonstrate that the unadopted rule:
1014     a.  Is within the powers, functions, and duties delegated
1015by the Legislature or, if the agency is operating pursuant to
1016authority derived from the State Constitution, is within that
1017authority;
1018     b.  Does not enlarge, modify, or contravene the specific
1019provisions of law implemented;
1020     c.  Is not vague, establishes adequate standards for agency
1021decisions, or does not vest unbridled discretion in the agency;
1022     d.  Is not arbitrary or capricious. A rule is arbitrary if
1023it is not supported by logic or the necessary facts; a rule is
1024capricious if it is adopted without thought or reason or is
1025irrational;
1026     e.  Is not being applied to the substantially affected
1027party without due notice; and
1028     f.  Does not impose excessive regulatory costs on the
1029regulated person, county, or city.
1030     3.  The recommended and final orders in any proceeding
1031shall be governed by the provisions of paragraphs (k) and (l),
1032except that the administrative law judge's determination
1033regarding an the unadopted rule under subparagraph 1. or
1034subparagraph  2. shall not be rejected by the agency unless the
1035agency first determines from a review of the complete record,
1036and states with particularity in the order, that such
1037determination is clearly erroneous or does not comply with
1038essential requirements of law. In any proceeding for review
1039under s. 120.68, if the court finds that the agency's rejection
1040of the determination regarding the unadopted rule does not
1041comport with the provisions of this subparagraph, the agency
1042action shall be set aside and the court shall award to the
1043prevailing party the reasonable costs and a reasonable
1044attorney's fee for the initial proceeding and the proceeding for
1045review.
1046     Section 13.  Effective January 1, 2009, subsections (2),
1047(3), and (4) of section 120.595, Florida Statutes, are amended
1048to read:
1049     120.595  Attorney's fees.--
1050     (2)  CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO
1051SECTION 120.56(2).--If the appellate court or administrative law
1052judge declares a proposed rule or portion of a proposed rule
1053invalid pursuant to s. 120.56(2), a judgment or order shall be
1054rendered against the agency for reasonable costs and reasonable
1055attorney's fees, unless the agency demonstrates that its actions
1056were substantially justified or special circumstances exist
1057which would make the award unjust. An agency's actions are
1058"substantially justified" if there was a reasonable basis in law
1059and fact at the time the actions were taken by the agency. If
1060the agency prevails in the proceedings, the appellate court or
1061administrative law judge shall award reasonable costs and
1062reasonable attorney's fees against a party if the appellate
1063court or administrative law judge determines that a party
1064participated in the proceedings for an improper purpose as
1065defined by paragraph (1)(e). No award of attorney's fees as
1066provided by this subsection shall exceed $50,000 $15,000.
1067     (3)  CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO
1068SECTION 120.56(3) AND (5).--If the appellate court or
1069administrative law judge declares a rule or portion of a rule
1070invalid pursuant to s. 120.56(3) or (5), a judgment or order
1071shall be rendered against the agency for reasonable costs and
1072reasonable attorney's fees, unless the agency demonstrates that
1073its actions were substantially justified or special
1074circumstances exist which would make the award unjust. An
1075agency's actions are "substantially justified" if there was a
1076reasonable basis in law and fact at the time the actions were
1077taken by the agency. If the agency prevails in the proceedings,
1078the appellate court or administrative law judge shall award
1079reasonable costs and reasonable attorney's fees against a party
1080if the appellate court or administrative law judge determines
1081that a party participated in the proceedings for an improper
1082purpose as defined by paragraph (1)(e). No award of attorney's
1083fees as provided by this subsection shall exceed $50,000
1084$15,000.
1085     (4)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
1086120.56(4).--
1087     (a)  If the appellate court or administrative law judge
1088determines Upon entry of a final order that all or part of an
1089agency statement violates s. 120.54(1)(a), or that the agency
1090must immediately discontinue reliance on the statement and any
1091substantially similar statement pursuant to s. 120.56(4)(e), a
1092judgment or order shall be entered against the agency for the
1093administrative law judge shall award reasonable costs and
1094reasonable attorney's fees to the petitioner, unless the agency
1095demonstrates that the statement is required by the Federal
1096Government to implement or retain a delegated or approved
1097program or to meet a condition to receipt of federal funds.
1098     (b)  Upon notification to the administrative law judge
1099provided before the final hearing that the agency has published
1100a notice of rulemaking under s. 120.54(3)(a), such notice shall
1101automatically operate as a stay of proceedings pending
1102rulemaking. The administrative law judge may vacate the stay for
1103good cause shown. A stay of proceedings under this paragraph
1104remains in effect so long as the agency is proceeding
1105expeditiously and in good faith to adopt the statement as a
1106rule. The administrative law judge shall award reasonable costs
1107and reasonable attorney's fees accrued by the petitioner prior
1108to the date the notice was published, unless the agency proves
1109to the administrative law judge that it did not know and should
1110not have known that the statement was an unadopted rule.
1111Attorney's fees and costs under this paragraph and paragraph (a)
1112shall be awarded only upon a finding that the agency received
1113notice that the statement may constitute an unadopted rule at
1114least 30 days before a petition under s. 120.56(4) was filed and
1115that the agency failed to publish the required notice of
1116rulemaking pursuant to s. 120.54(3) that addresses the statement
1117within that 30-day period. Notice to the agency may be satisfied
1118by its receipt of a copy of the s. 120.56(4) petition, a notice
1119or other paper containing substantially the same information, or
1120a petition filed pursuant to s. 120.54(7). An award of
1121attorney's fees as provided by this paragraph may not exceed
1122$50,000.
1123     (c)(b)  Notwithstanding the provisions of chapter 284, an
1124award shall be paid from the budget entity of the secretary,
1125executive director, or equivalent administrative officer of the
1126agency, and the agency shall not be entitled to payment of an
1127award or reimbursement for payment of an award under any
1128provision of law.
1129     (d)  If the agency prevails in the proceedings, the
1130appellate court or administrative law judge shall award
1131reasonable costs and attorney's fees against a party if the
1132appellate court or administrative law judge determines that the
1133party participated in the proceedings for an improper purpose as
1134defined in paragraph (1)(e) or that the party or the party's
1135attorney knew or should have known that a claim was not
1136supported by the material facts necessary to establish the claim
1137or would not be supported by the application of then-existing
1138law to those material facts.
1139     Section 14.  Subsection (1) and paragraph (c) of subsection
1140(2) of section 120.569, Florida Statutes, are amended to read:
1141     120.569  Decisions which affect substantial interests.--
1142     (1)  The provisions of this section apply in all
1143proceedings in which the substantial interests of a party are
1144determined by an agency, unless the parties are proceeding under
1145s. 120.573 or s. 120.574. Unless waived by all parties, s.
1146120.57(1) applies whenever the proceeding involves a disputed
1147issue of material fact. Unless otherwise agreed, s. 120.57(2)
1148applies in all other cases. If a disputed issue of material fact
1149arises during a proceeding under s. 120.57(2), then, unless
1150waived by all parties, the proceeding under s. 120.57(2) shall
1151be terminated and a proceeding under s. 120.57(1) shall be
1152conducted. Parties shall be notified of any order, including a
1153final order. Unless waived, a copy of the order shall be
1154delivered or mailed to each party or the party's attorney of
1155record at the address of record. Each notice shall inform the
1156recipient of any administrative hearing or judicial review that
1157is available under this section, s. 120.57, or s. 120.68; shall
1158indicate the procedure which must be followed to obtain the
1159hearing or judicial review; and shall state the time limits
1160which apply.
1161     (2)
1162     (c)  Unless otherwise provided by law, a petition or
1163request for hearing shall include those items required by the
1164uniform rules adopted pursuant to s. 120.54(5)(b) s.
1165120.54(5)(b)4. Upon the receipt of a petition or request for
1166hearing, the agency shall carefully review the petition to
1167determine if it contains all of the required information. A
1168petition shall be dismissed if it is not in substantial
1169compliance with these requirements or it has been untimely
1170filed. Dismissal of a petition shall, at least once, be without
1171prejudice to petitioner's filing a timely amended petition
1172curing the defect, unless it conclusively appears from the face
1173of the petition that the defect cannot be cured. The agency
1174shall promptly give written notice to all parties of the action
1175taken on the petition, shall state with particularity its
1176reasons if the petition is not granted, and shall state the
1177deadline for filing an amended petition if applicable. This
1178paragraph does not eliminate the availability of equitable
1179tolling as a defense to the untimely filing of a petition.
1180     Section 15.  Subsection (2) of section 120.74, Florida
1181Statutes, is amended to read:
1182     120.74  Agency review, revision, and report.--
1183     (2)  Beginning October 1, 1997, and by October 1 of every
1184other year thereafter, the head of each agency shall file a
1185report with the President of the Senate, the Speaker of the
1186House of Representatives, and the committee, with a copy to each
1187appropriate standing committee of the Legislature, which
1188certifies that the agency has complied with the requirements of
1189this section subsection. The report must specify any changes
1190made to its rules as a result of the review and, when
1191appropriate, recommend statutory changes that will promote
1192efficiency, reduce paperwork, or decrease costs to government
1193and the private sector. The report must identify the types of
1194cases or disputes in which the agency is involved which should
1195be conducted under the summary hearing process described in s.
1196120.574.
1197     Section 16.  Subsection (11) of section 120.80, Florida
1198Statutes, is amended to read:
1199     120.80  Exceptions and special requirements; agencies.--
1200     (11)  NATIONAL GUARD.--Notwithstanding s. 120.52(16) s.
1201120.52(15), the enlistment, organization, administration,
1202equipment, maintenance, training, and discipline of the militia,
1203National Guard, organized militia, and unorganized militia, as
1204provided by s. 2, Art. X of the State Constitution, are not
1205rules as defined by this chapter.
1206     Section 17.  Paragraph (c) of subsection (1) and paragraph
1207(a) of subsection (3) of section 120.81, Florida Statutes, are
1208amended to read:
1209     120.81  Exceptions and special requirements; general
1210areas.--
1211     (1)  EDUCATIONAL UNITS.--
1212     (c)  Notwithstanding s. 120.52(16) s. 120.52(15), any
1213tests, test scoring criteria, or testing procedures relating to
1214student assessment which are developed or administered by the
1215Department of Education pursuant to s. 1003.43, s. 1003.438, s.
12161008.22, or s. 1008.25, or any other statewide educational tests
1217required by law, are not rules.
1218     (3)  PRISONERS AND PAROLEES.--
1219     (a)  Notwithstanding s. 120.52(13) s. 120.52(12),
1220prisoners, as defined by s. 944.02, shall not be considered
1221parties in any proceedings other than those under s.
1222120.54(3)(c) or (7), and may not seek judicial review under s.
1223120.68 of any other agency action. Prisoners are not eligible to
1224seek an administrative determination of an agency statement
1225under s. 120.56(4). Parolees shall not be considered parties for
1226purposes of agency action or judicial review when the
1227proceedings relate to the rescission or revocation of parole.
1228     Section 18.  Paragraph (f) of subsection (2) of section
1229409.175, Florida Statutes, is amended to read:
1230     409.175  Licensure of family foster homes, residential
1231child-caring agencies, and child-placing agencies; public
1232records exemption.--
1233     (2)  As used in this section, the term:
1234     (f)  "License" means "license" as defined in s. 120.52(10)
1235s. 120.52(9). A license under this section is issued to a family
1236foster home or other facility and is not a professional license
1237of any individual. Receipt of a license under this section shall
1238not create a property right in the recipient. A license under
1239this act is a public trust and a privilege, and is not an
1240entitlement. This privilege must guide the finder of fact or
1241trier of law at any administrative proceeding or court action
1242initiated by the department.
1243     Section 19.  Paragraph (a) of subsection (1) of section
1244420.9072, Florida Statutes, is amended to read:
1245     420.9072  State Housing Initiatives Partnership
1246Program.--The State Housing Initiatives Partnership Program is
1247created for the purpose of providing funds to counties and
1248eligible municipalities as an incentive for the creation of
1249local housing partnerships, to expand production of and preserve
1250affordable housing, to further the housing element of the local
1251government comprehensive plan specific to affordable housing,
1252and to increase housing-related employment.
1253     (1)(a)  In addition to the legislative findings set forth
1254in s. 420.6015, the Legislature finds that affordable housing is
1255most effectively provided by combining available public and
1256private resources to conserve and improve existing housing and
1257provide new housing for very-low-income households, low-income
1258households, and moderate-income households. The Legislature
1259intends to encourage partnerships in order to secure the
1260benefits of cooperation by the public and private sectors and to
1261reduce the cost of housing for the target group by effectively
1262combining all available resources and cost-saving measures. The
1263Legislature further intends that local governments achieve this
1264combination of resources by encouraging active partnerships
1265between government, lenders, builders and developers, real
1266estate professionals, advocates for low-income persons, and
1267community groups to produce affordable housing and provide
1268related services. Extending the partnership concept to encompass
1269cooperative efforts among small counties as defined in s.
1270120.52(19) s. 120.52(17), and among counties and municipalities
1271is specifically encouraged. Local governments are also intended
1272to establish an affordable housing advisory committee to
1273recommend monetary and nonmonetary incentives for affordable
1274housing as provided in s. 420.9076.
1275     Section 20.  Subsection (7) of section 420.9075, Florida
1276Statutes, is amended to read:
1277     420.9075  Local housing assistance plans; partnerships.--
1278     (7)  The moneys deposited in the local housing assistance
1279trust fund shall be used to administer and implement the local
1280housing assistance plan. The cost of administering the plan may
1281not exceed 5 percent of the local housing distribution moneys
1282and program income deposited into the trust fund. A county or an
1283eligible municipality may not exceed the 5-percent limitation on
1284administrative costs, unless its governing body finds, by
1285resolution, that 5 percent of the local housing distribution
1286plus 5 percent of program income is insufficient to adequately
1287pay the necessary costs of administering the local housing
1288assistance plan. The cost of administering the program may not
1289exceed 10 percent of the local housing distribution plus 5
1290percent of program income deposited into the trust fund, except
1291that small counties, as defined in s. 120.52(19) s. 120.52(17),
1292and eligible municipalities receiving a local housing
1293distribution of up to $350,000 may use up to 10 percent of
1294program income for administrative costs.
1295     Section 21.  For the 2008-2009 fiscal year, the
1296nonrecurring sum of $50,000 is appropriated in lump sum from the
1297Records Management Trust Fund to the Department of State, and
1298for the 2009-2010 fiscal year, the nonrecurring sum of $401,000
1299is appropriated in lump sum from the Records Management Trust
1300Fund to the Department of State for the purposes of carrying out
1301the provisions of this act requiring the implementation of
1302electronic publications. To cover this nonrecurring cost to
1303implement system modifications, the Department of State shall
1304temporarily increase the space rate charge for publication in
1305the Florida Administrative Weekly. After implementation of the
1306required system changes, the department shall decrease the fee
1307to the 2007-2008 fiscal-year level. Funds appropriated are held
1308in a lump sum category contingent on available cash deposited
1309into the trust fund and derived from the fee increase. Funds
1310collected from the fee increase and not expended by June 30,
13112009, may be retained in the trust fund to complete the system
1312implementation as appropriated in the 2009-10 fiscal year.
1313     Section 22.  For the 2008-2009 fiscal year, the Department
1314of State is authorized one full-time-equivalent position, salary
1315rate of 16,969, and a recurring sum of $22,399 in salaries and
1316benefits from the Records Management Trust Fund for the purpose
1317of handling administrative and system requirements in carrying
1318out the provisions of this act related to electronic
1319publications.
1320     Section 23.  Notwithstanding s. 120.55(8)(b), Florida
1321Statutes, on July 1, 2009, the unencumbered balance in the
1322Records Management Trust Fund for fees collected pursuant to
1323chapter 120, Florida Statutes, may not exceed $300,000 plus any
1324funds collected, but not yet expended, from the fee increase
1325implemented to fund the provisions of this act. By June 30,
13262009, any funds in excess of this amount shall be transferred to
1327the General Revenue Fund. This section expires August 1, 2009.
1328     Section 24.  Except as otherwise expressly provided in this
1329act, this act shall take effect July 1, 2008.


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