Florida Senate - 2008 PROPOSED COMMITTEE SUBSTITUTE

Bill No. SB 928

567702

CM.CM.06660

Proposed Committee Substitute by the Committee on Commerce

A bill to be entitled

An act relating to economic development; creating s.

11.9006, F.S.; providing a short title; providing

definitions; creating the Small Business Regulatory

Advisory Council; providing for appointments, membership,

and meetings; providing an administrative location for the

council; providing powers and limitations of the council;

providing for coordinated review of agency rules by the

council with agency sunset review; providing timelines for

review; providing for the council to issue a business-

friendly scorecard of agency rules; creating s. 11.9007,

F.S.; providing definitions; providing for selection of

small business advocate; providing for preferred

qualifications of advocate; providing duties of advocate;

providing for agency cooperation with advocate; providing

for annual report by advocate to Governor and Legislature;

amending s. 11.908, F.S.; requiring report of the Small

Business Regulatory Advisory Council to be included in

recommendations of Joint Legislative Sunset Committee;

amending s. 11.919; requiring agency assistance to the

Small Business Regulatory Advisory Council; authorizing

the council to inspect agency documents; amending s.

120.54, F.S.; requiring agency to prepare statement of

estimated regulatory costs; requiring agency notification

to Small Business Regulatory Advisory Council relating to

proposed agency action affecting small businesses;

requiring the agency to adopt regulatory alternatives

offered by the council under certain circumstances;

providing for a rule-filing extension when regulatory

alternatives are offered by the council; providing for

outside review of regulatory alternatives not adopted by

the agency and for agency response; amending s. 120.74,

F.S.; requiring biennial rule review by agency to consider

impact of rules on small businesses and results to be

included in report to Legislature; providing an effective

date.

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

Section 1. Section 11.9006, Florida Statutes, is created to

read:

11.9006 Small Business Regulatory Advisory Council.--

(1) SHORT TITLE.-- This section may be cited as the "Small

Business Regulatory Relief Act."

(2) DEFINITIONS.--As used in this section:

(a) "Agency" means an agency as defined in s. 120.52.

(b) "Council" means the Small Business Regulatory Advisory

Council.

(d) "Small business" means a small business as defined in

s. 288.703.

(3) CREATION OF SMALL BUSINESS REGULATORY ADVISORY COUNCIL;

MEMBERSHIP; POWERS AND DUTIES.--

(a) The Small Business Regulatory Advisory Council is

created. The council shall consist of nine members who are

current or former small business owners, three appointed by the

Governor and three each appointed by the President of the Senate

and the Speaker of the House of Representatives. The initial

appointments to the council must be made within 60 days from the

effective date of this act. The members shall be from different

geographic regions of the state. Members shall serve 4-year

terms; however in order to establish staggered terms, for the

initial appointments, each appointing official shall appoint one

member to a 2-year term and two members to a 4-year term. A

member shall not serve more than three consecutive terms. Members

shall select the chairperson from among the members of the

council. The council shall meet quarterly or upon the call of the

chairperson. A majority of the members constitutes a quorum for

the conduct of business. Members of the council shall serve

without compensation. The appointing official may remove his or

her appointee without cause at any time. A member whose term has

expired shall continue to serve on the council until such time as

a replacement is appointed. Vacancies shall be filled for the

remainder of the term and by the original appointing official.

(b) The council is established, assigned to, and

administratively housed within the Florida Small Business

Development Center Network, which shall provide staff support to

the council.

1. Provide agencies with recommendations regarding proposed

rules or programs that may adversely affect small business;

2. Consider requests from small business owners to review

rules or programs adopted by an agency;

3. Consider requests from small business owners to review

small business owners' private property rights related to rules

or programs adopted or implemented by an agency; and

4. Review rules promulgated by an agency to determine

whether a rule places an unnecessary burden on small business and

make recommendations to the agency to mitigate the adverse

effects.

(d) The council does not have authority to:

1. Initiate or intervene in any administrative or judicial

proceeding; or

2. Issue subpoenas.

(e) The council shall prepare and submit a written annual

report to the Governor, the President of the Senate, and the

Speaker of the House of Representatives that describes the

activities and recommendations of the council.

(4) PERIODIC REVIEW OF RULES.--

100

(a) In coordination with the Sunset Review schedule provided

101

in s. 11.905, the council may review rules of agencies subject to

102

sunset review to determine whether the rules should be continued

103

without change or should be amended or repealed to reduce the

104

impact of the rules on small businesses, subject to the

105

requirement that the recommendations of the council must be

106

feasible and consistent with the stated objectives of the rules.

107

(b) In reviewing agency rules to reduce the impact on small

108

businesses, the council, in coordination with the agency, shall

109

consider the following factors:

110

1. Continued need for the rule;

111

2. The nature of complaints or comments received from the

112

public concerning the rule;

113

3. The complexity of the rule;

114

4. The extent to which the rule overlaps, duplicates or

115

conflicts with other federal, state and local government rules;

116

and

117

5. The length of time since the rule has been evaluated or

118

the degree to which technology, economic conditions or other

119

factors have changed in the topical area affected by the rule.

120

121

the Joint Legislative Sunset Committee pursuant to s. 11.907, the

122

council shall provide a report to the Governor, the President of

123

the Senate, the Speaker of the House of Representatives, and the

124

Joint Legislative Sunset Committee that includes recommendations

125

and evaluations of agency rules and programs regarding regulatory

126

fairness for small businesses. A component of the report shall be

127

a rating system, developed by the council, entitled "Small

128

Business Friendliness and Development Scorecard."

129

Section 2. Section 11.9007, Florida Statutes, is created to

130

read:

131

11.9007 SMALL BUSINESS ADVOCATE.--

132

(1) DEFINITIONS.--

133

(a) "Advocate" means the Florida Small Business Advocate

134

who is also the Director of the Office of Small Business

135

Advocate.

136

(b) "Director" means the Director of the Office of Small

137

Business Advocate.

138

139

(2) The Office of Small Business Advocate is established,

140

assigned to, and administratively housed within the Florida Small

141

Business Development Center Network. The director shall be the

142

Florida Small Business Advocate.

143

(3) DIRECTOR OF THE OFFICE OF SMALL BUSINESS ADVOCATE;

144

APPOINTMENT; DUTIES.--

145

(a) The advocate shall be selected by the director of the

146

Florida Small Business Development Center Network, and shall be

147

an employee of or under contract with the Florida Small Business

148

Development Center Network. Preferred qualifications for the

149

advocate will include at least 5 years' experience in small

150

business, extensive knowledge of the issues and challenges of

151

importance to small business and actual experience in small

152

business advocacy and assistance.

153

(b) The duties and functions of the advocate shall include

154

all of the following:

155

1. Act as staff for the Small Business Regulatory Advisory

156

Council.

157

2. Serve as principal advocate in the state on behalf of

158

small businesses, including, but not limited to, advisory

159

participation in the consideration of all legislation and

160

administrative rules that affect small businesses, and advocacy

161

on state policy and programs related to small businesses on

162

disaster preparedness and recovery including providing technical

163

assistance.

164

3. Represent the views and interests of small businesses

165

before agencies whose policies and activities may affect small

166

businesses. Among other activities, the advocate may encourage

167

standardized applications and information packages that would

168

include all the information needed by each agency that a business

169

has to deal with to prevent an applicant from having to fill out

170

duplicative information on forms from various agencies.

171

4. Enlist the cooperation and assistance of public and

172

private agencies, businesses, and other organizations in

173

disseminating information about the programs and services

174

provided by all levels of government that are of benefit to small

175

businesses, and information on how small businesses can

176

participate in, or make use of, those programs and services.

177

5. Issue a report every 2 years evaluating the efforts of

178

agencies that significantly regulate small businesses, assist

179

minority and other small business enterprises, and make

180

recommendations that may be appropriate to assist the development

181

and strengthening of minority and other small business

182

enterprises.

183

6. Consult with experts and authorities in the fields of

184

small business investment, venture capital investment, and

185

commercial banking and other comparable finance institutions

186

involved in the financing of business, and with individuals with

187

regulatory, legal, economic, or financial expertise, including

188

members of the academic community, and individuals who generally

189

represent the public interest.

190

7. Seek the assistance and cooperation of all agencies and

191

departments providing services to, or affecting, small business,

192

to ensure coordination of state efforts.

193

8. Receive and respond to complaints from small businesses

194

concerning the actions of agencies and the operative effects of

195

state laws and regulations adversely affecting those businesses.

196

The advocate shall establish an annual process for small

197

businesses to nominate agency rules or programs for reform. The

198

advocate shall publish those nominations online and update the

199

status of agency action on the proposed reforms twice yearly.

200

9. Counsel small businesses on how to resolve questions and

201

problems concerning the relationship of small business to state

202

government.

203

10. Maintain, publicize, and distribute an annual list of

204

any persons serving as small business ombudsmen throughout state

205

government.

206

11. Coordinate a statewide conference on small business

207

with public and private organizations and entities impacting

208

small business in the state.

209

12. Coordinate annual public meetings to share best

210

practices for small business disaster preparedness. The meetings

211

shall be held in consultation with regional and statewide small

212

business organizations and shall take place in different

213

locations throughout the state.

214

(4) REPORTS AND DOCUMENTS FURNISHED TO SMALL BUSINESS

215

ADVOCATE; ANNUAL REPORTS.--

216

(a) Each agency of the state shall furnish to the advocate

217

the reports, documents, and information that are public records

218

and that the director deems necessary to carry out his or her

219

functions under this chapter.

220

(b) The advocate shall prepare and submit a written annual

221

report to the Governor, the President of the Senate, and the

222

Speaker of the House of Representatives that describes the

223

activities and recommendations of the office.

224

Section 3. Subsection (2) of section 11.908, Florida

225

Statutes, is amended to read:

226

11.908 Committee duties.--No later than March 1 of the year

227

in which a state agency or its advisory committees are scheduled

228

to be reviewed, the committee shall and the joint committee may:

229

(2) Consult with the Legislative Budget Commission, the

230

Small Business Regulatory Advisory Council, relevant substantive

231

and appropriations committees of the Senate and the House of

232

Representatives, the Governor's Office of Policy and Budgeting,

233

the Auditor General, and the Chief Financial Officer, or their

234

successors, relating to the review of the agency and its advisory

235

committees.

236

Section 4. Paragraph (a) of subsection (2) of section

237

11.911, Florida Statutes, is amended to read:

238

11.911 Committee recommendations.--

239

(2) In its report on a state agency, the joint committee

240

shall:

241

(a) Make recommendations on the abolition, continuation, or

242

reorganization of each state agency and its advisory committees

243

and on the need for the performance of the functions of the

244

agency and its advisory committees. If the committee recommends

245

continuation or reorganization, the committee shall include in

246

its recommendations the report of the Small Business Regulatory

247

Advisory Council as provided in s. 11.9006, regarding the rules

248

of each agency.

249

Section 5. Section 11.919, Florida Statutes, is amended to

250

read:

251

11.919 Assistance of and access to state agencies.--

252

(1) The committee and the Small Business Regulatory

253

Advisory Council may access or request information and request

254

the assistance of state agencies and officers. When assistance is

255

requested, a state agency or officer shall assist the committee

256

and the Small Business Regulatory Advisory Council.

257

Section 6. Paragraph (b) of subsection (3) of section

258

120.54, Florida Statutes, is amended to read:

259

120.54 Rulemaking.--

260

(3) ADOPTION PROCEDURES.--

261

(b) Special matters to be considered in rule adoption.--

262

1. Statement of estimated regulatory costs.--Prior to the

263

adoption, amendment, or repeal of any rule other than an

264

emergency rule, an agency is encouraged to prepare a statement of

265

estimated regulatory costs of the proposed rule, as provided by

266

s. 120.541. However, an agency shall prepare a statement of

267

estimated regulatory costs of the proposed rule, as provided by

268

s. 120.541, if the proposed rule will have an impact on small

269

business.

270

2. Small businesses, small counties, and small cities.--

271

a. Each agency, before the adoption, amendment, or repeal

272

of a rule, shall consider the impact of the rule on small

273

businesses as defined by s. 288.703 and the impact of the rule on

274

small counties or small cities as defined by s. 120.52. Whenever

275

practicable, an agency shall tier its rules to reduce

276

disproportionate impacts on small businesses, small counties, or

277

small cities to avoid regulating small businesses, small

278

counties, or small cities that do not contribute significantly to

279

the problem the rule is designed to address. An agency may define

280

"small business" to include businesses employing more than 100

281

persons, may define "small county" to include those with

282

populations of more than 75,000, and may define "small city" to

283

include those with populations of more than 10,000, if it finds

284

that such a definition is necessary to adapt a rule to the needs

285

and problems of small businesses, small counties, or small

286

cities. The agency shall consider each of the following methods

287

for reducing the impact of the proposed rule on small businesses,

288

small counties, and small cities, or any combination of these

289

entities:

290

(I) Establishing less stringent compliance or reporting

291

requirements in the rule.

292

(II) Establishing less stringent schedules or deadlines in

293

the rule for compliance or reporting requirements.

294

(III) Consolidating or simplifying the rule's compliance or

295

reporting requirements.

296

(IV) Establishing performance standards or best-management

297

practices to replace design or operational standards in the rule.

298

(V) Exempting small businesses, small counties, or small

299

cities from any or all requirements of the rule.

300

b.(I) If the agency determines that the proposed action

301

will affect small businesses as defined by the agency as provided

302

in sub-subparagraph a., the agency shall send written notice of

303

the rule to the Small Business Regulatory Advisory Council small

304

business ombudsman of the Office of Tourism, Trade, and Economic

305

Development not less than 28 days prior to the intended action.

306

(II) Each agency shall adopt those regulatory alternatives

307

offered by the Small Business Regulatory Advisory Council

308

ombudsman and provided to the agency no later than 21 days after

309

the council's ombudsman's receipt of the written notice of the

310

rule which it finds are feasible and consistent with the stated

311

objectives of the proposed rule and which would reduce the impact

312

on small businesses. When regulatory alternatives are offered by

313

the Small Business Regulatory Advisory Council ombudsman, the 90-

314

day period for filing the rule in subparagraph (e)2. is extended

315

for a period of 21 days.

316

(III) If an agency does not adopt all alternatives offered

317

pursuant to this sub-subparagraph, it shall, prior to rule

318

adoption or amendment and pursuant to subparagraph (d)1., file a

319

detailed written statement with the committee explaining the

320

reasons for failure to adopt such alternatives. Within 3 working

321

days of the filing of such notice, the agency shall send a copy

322

of such notice to the Small Business Regulatory Advisory Council

323

ombudsman. The Small Business Regulatory Advisory Council may

324

make a request of the President of the Senate and the Speaker of

325

the House of Representatives, that the presiding officers direct

326

the Office of Program Policy Analysis and Government

327

Accountability to determine whether the rejected alternatives

328

reduce the impact on small business while meeting the stated

329

objectives of the proposed rule. Within 60 days after the date of

330

the directive from the presiding officers, the Office of Program

331

Policy Analysis and Government Accountability shall report to the

332

Administrative Procedures Committee its findings as to whether an

333

alternative reduces the impact on small business while meeting

334

the stated objectives of the proposed rule. The Office of Program

335

Policy Analysis and Government Accountability shall consider the

336

proposed rule, the economic impact statement, the written

337

statement of the agency, the proposed alternatives, and any

338

comment submitted during the comment period on the proposed rule.

339

The Administrative Procedures Committee shall report such

340

findings to the agency and the agency shall respond in writing to

341

the Administrative Procedures Committee if the Office of Program

342

Policy Analysis and Government Accountability found that the

343

alternative reduced the impact on small business while meeting

344

the stated objectives of the proposed rule. If the agency will

345

not adopt the alternative, it must also provide a detailed

346

written statement to the Administrative Procedures Committee as

347

to why it will not adopt the alternative.

348

Section 7. Subsection (1) of section 120.74, Florida

349

Statutes, is amended to read:

350

120.74 Agency review, revision, and report.--

351

(1) Each agency shall review and revise its rules as often

352

as necessary to ensure that its rules are correct and comply with

353

statutory requirements. Additionally, each agency shall perform a

354

355

agency must:

356

(a) Identify and correct deficiencies in its rules;

357

(b) Clarify and simplify its rules;

358

359

(d) Delete rules that are redundant of statutes;

360

(e) Seek to improve efficiency, reduce paperwork, or

361

decrease costs to government and the private sector; and

362

(f) Contact agencies that have concurrent or overlapping

363

jurisdiction to determine whether their rules can be coordinated

364

to promote efficiency, reduce paperwork, or decrease costs to

365

government and the private sector.

366

(g) Determine whether the rules should be continued without

367

change or should be amended or repealed to reduce the impact on

368

small business while meeting the stated objectives of the

369

proposed rule.

370

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

371

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

372

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

373

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

374

appropriate standing committee of the Legislature, which

375

certifies that the agency has complied with the requirements of

376

this subsection. The report must specify any changes made to its

377

rules as a result of the review and, when appropriate, recommend

378

statutory changes that will promote efficiency, reduce paperwork,

379

or decrease costs to government and the private sector. The

380

report must specifically address the economic impact of the rules

381

on small business. The report must identify the types of cases

382

or disputes in which the agency is involved which should be

383

conducted under the summary hearing process described in s.

384

120.574.

385

Section 8. This act shall take effect July 1, 2008.