Florida Senate - 2011 SENATOR AMENDMENT
Bill No. CS for CS for SB 170
Barcode 288966
LEGISLATIVE ACTION
Senate . House
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Floor: 1/AD/2R .
04/06/2011 10:48 AM .
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Senator Bennett moved the following:
1 Senate Amendment (with title amendment)
2
3 Between lines 95 and 96
4 insert:
5 Section 3. Subsections (1) and (8) of section 440.192,
6 Florida Statutes, are amended to read:
7 440.192 Procedure for resolving benefit disputes.—
8 (1) Any employee may, for any benefit that is ripe, due,
9 and owing, file by certified mail, or by electronic means
10 approved by the Deputy Chief Judge, with the Office of the
11 Judges of Compensation Claims a petition for benefits which
12 meets the requirements of this section and the definition of
13 specificity in s. 440.02. An employee represented by an attorney
14 shall file by electronic means approved by the Deputy Chief
15 Judge. An employee not represented by an attorney may file by
16 certified mail or by electronic means approved by the Deputy
17 Chief Judge. The department shall inform employees of the
18 location of the Office of the Judges of Compensation Claims and
19 the office’s website address for purposes of filing a petition
20 for benefits. The employee shall also serve copies of the
21 petition for benefits by certified mail, or by electronic means
22 approved by the Deputy Chief Judge, upon the employer and the
23 employer’s carrier. The Deputy Chief Judge shall refer the
24 petitions to the judges of compensation claims.
25 (8) Within 14 days after receipt of a petition for benefits
26 by certified mail or by approved electronic means, the carrier
27 must either pay the requested benefits without prejudice to its
28 right to deny within 120 days from receipt of the petition or
29 file a response to petition with the Office of the Judges of
30 Compensation Claims. The response shall be filed by electronic
31 means approved by the Deputy Chief Judge. The carrier must list
32 all benefits requested but not paid and explain its
33 justification for nonpayment in the response to petition. A
34 carrier that does not deny compensability in accordance with s.
35 440.20(4) is deemed to have accepted the employee’s injuries as
36 compensable, unless it can establish material facts relevant to
37 the issue of compensability that could not have been discovered
38 through reasonable investigation within the 120-day period. The
39 carrier shall provide copies of the response to the filing
40 party, employer, and claimant by certified mail or by electronic
41 means approved by the Deputy Chief Judge.
42 Section 4. Subsection (1) and paragraphs (a), (c), and (e)
43 of subsection (4) of section 440.25, Florida Statutes, are
44 amended to read:
45 440.25 Procedures for mediation and hearings.—
46 (1) Forty days after a petition for benefits is filed under
47 s. 440.192, the judge of compensation claims shall notify the
48 interested parties by order that a mediation conference
49 concerning such petition has been scheduled unless the parties
50 have notified the judge of compensation claims that a private
51 mediation has been held or is scheduled to be held. A mediation,
52 whether private or public, shall be held within 130 days after
53 the filing of the petition. Such order must give the date the
54 mediation conference is to be held. Such order may be served
55 personally upon the interested parties or may be sent to the
56 interested parties by mail or by electronic means approved by
57 the Deputy Chief Judge. If multiple petitions are pending, or if
58 additional petitions are filed after the scheduling of a
59 mediation, the judge of compensation claims shall consolidate
60 all petitions into one mediation. The claimant or the adjuster
61 of the employer or carrier may, at the mediator’s discretion,
62 attend the mediation conference by telephone or, if agreed to by
63 the parties, other electronic means. A continuance may be
64 granted upon the agreement of the parties or if the requesting
65 party demonstrates to the judge of compensation claims that the
66 reason for requesting the continuance arises from circumstances
67 beyond the party’s control. Any order granting a continuance
68 must set forth the date of the rescheduled mediation conference.
69 A mediation conference may not be used solely for the purpose of
70 mediating attorney’s fees.
71 (4)(a) If the parties fail to agree to written submission
72 of pretrial stipulations, the judge of compensation claims shall
73 conduct a live pretrial hearing. The judge of compensation
74 claims shall give the interested parties at least 14 days’
75 advance notice of the pretrial hearing by mail or by electronic
76 means approved by the Deputy Chief Judge.
77 (c) The judge of compensation claims shall give the
78 interested parties at least 14 days’ advance notice of the final
79 hearing, served upon the interested parties by mail or by
80 electronic means approved by the Deputy Chief Judge.
81 (e) The order making an award or rejecting the claim,
82 referred to in this chapter as a “compensation order,” shall set
83 forth the findings of ultimate facts and the mandate; and the
84 order need not include any other reason or justification for
85 such mandate. The compensation order shall be filed in the
86 Office of the Judges of Compensation Claims at Tallahassee. A
87 copy of such compensation order shall be sent by mail or by
88 electronic means approved by the Deputy Chief Judge to the
89 parties and attorneys of record and any parties not represented
90 by an attorney at the last known address of each, with the date
91 of mailing noted thereon.
92 Section 5. Subsection (3) of section 440.29, Florida
93 Statutes, is amended to read:
94 440.29 Procedure before the judge of compensation claims.—
95 (3) The practice and procedure before the judges of
96 compensation claims shall be governed by rules adopted by the
97 Office of the Judges of Compensation Claims Supreme Court,
98 except to the extent that such rules conflict with the
99 provisions of this chapter.
100 Section 6. Subsection (4) of section 440.45, Florida
101 Statutes, is amended to read:
102 440.45 Office of the Judges of Compensation Claims.—
103 (4) The Office of the Judges of Compensation Claims shall
104 adopt rules to carry out effect the purposes of this section.
105 Such rules must shall include procedural rules applicable to
106 workers’ compensation claim resolution, including rules
107 requiring electronic filing and service where deemed appropriate
108 by the Deputy Chief Judge, and uniform criteria for measuring
109 the performance of the office, including, but not limited to,
110 the number of cases assigned and resolved disposed, the age of
111 pending and resolved disposed cases, timeliness of decisions
112 decisionmaking, extraordinary fee awards, and other data
113 necessary for the judicial nominating commission to review the
114 performance of judges as required in paragraph (2)(c). The
115 workers’ compensation rules of procedure approved by the Supreme
116 Court apply until the rules adopted by the Office of the Judges
117 of Compensation Claims pursuant to this section become
118 effective.
119 Section 7. Subsection (5) of section 120.52, Florida
120 Statutes, is amended to read:
121 120.52 Definitions.—As used in this act:
122 (5) “Division” means the Division of Administrative
123 Hearings. Any document filed with the division by a party
124 represented by an attorney shall be filed by electronic means
125 through the division’s website. Any document filed with the
126 division by a party not represented by an attorney shall,
127 whenever possible, be filed by electronic means through the
128 division’s website.
129 Section 8. Paragraph (b) of subsection (5) of section
130 120.54, Florida Statutes, is amended to read:
131 120.54 Rulemaking.—
132 (5) UNIFORM RULES.—
133 (b) The uniform rules of procedure adopted by the
134 commission pursuant to this subsection shall include, but are
135 not limited to:
136 1. Uniform rules for the scheduling of public meetings,
137 hearings, and workshops.
138 2. Uniform rules for use by each state agency that provide
139 procedures for conducting public meetings, hearings, and
140 workshops, and for taking evidence, testimony, and argument at
141 such public meetings, hearings, and workshops, in person and by
142 means of communications media technology. The rules shall
143 provide that all evidence, testimony, and argument presented
144 shall be afforded equal consideration, regardless of the method
145 of communication. If a public meeting, hearing, or workshop is
146 to be conducted by means of communications media technology, or
147 if attendance may be provided by such means, the notice shall so
148 state. The notice for public meetings, hearings, and workshops
149 utilizing communications media technology shall state how
150 persons interested in attending may do so and shall name
151 locations, if any, where communications media technology
152 facilities will be available. Nothing in this paragraph shall be
153 construed to diminish the right to inspect public records under
154 chapter 119. Limiting points of access to public meetings,
155 hearings, and workshops subject to the provisions of s. 286.011
156 to places not normally open to the public shall be presumed to
157 violate the right of access of the public, and any official
158 action taken under such circumstances is void and of no effect.
159 Other laws relating to public meetings, hearings, and workshops,
160 including penal and remedial provisions, shall apply to public
161 meetings, hearings, and workshops conducted by means of
162 communications media technology, and shall be liberally
163 construed in their application to such public meetings,
164 hearings, and workshops. As used in this subparagraph,
165 “communications media technology” means the electronic
166 transmission of printed matter, audio, full-motion video,
167 freeze-frame video, compressed video, and digital video by any
168 method available.
169 3. Uniform rules of procedure for the filing of notice of
170 protests and formal written protests. The Administration
171 Commission may prescribe the form and substantive provisions of
172 a required bond.
173 4. Uniform rules of procedure for the filing of petitions
174 for administrative hearings pursuant to s. 120.569 or s. 120.57.
175 Such rules shall require the petition to include:
176 a. The identification of the petitioner, including the
177 petitioner’s e-mail address, if any, for the transmittal of
178 subsequent documents by electronic means.
179 b. A statement of when and how the petitioner received
180 notice of the agency’s action or proposed action.
181 c. An explanation of how the petitioner’s substantial
182 interests are or will be affected by the action or proposed
183 action.
184 d. A statement of all material facts disputed by the
185 petitioner or a statement that there are no disputed facts.
186 e. A statement of the ultimate facts alleged, including a
187 statement of the specific facts the petitioner contends warrant
188 reversal or modification of the agency’s proposed action.
189 f. A statement of the specific rules or statutes that the
190 petitioner contends require reversal or modification of the
191 agency’s proposed action, including an explanation of how the
192 alleged facts relate to the specific rules or statutes.
193 g. A statement of the relief sought by the petitioner,
194 stating precisely the action petitioner wishes the agency to
195 take with respect to the proposed action.
196 5. Uniform rules for the filing of request for
197 administrative hearing by a respondent in agency enforcement and
198 disciplinary actions. Such rules shall require a request to
199 include:
200 a. The name, address, e-mail address, and telephone number
201 of the party making the request and the name, address, and
202 telephone number of the party’s counsel or qualified
203 representative upon whom service of pleadings and other papers
204 shall be made;
205 b. A statement that the respondent is requesting an
206 administrative hearing and disputes the material facts alleged
207 by the petitioner, in which case the respondent shall identify
208 those material facts that are in dispute, or that the respondent
209 is requesting an administrative hearing and does not dispute the
210 material facts alleged by the petitioner; and
211 c. A reference by file number to the administrative
212 complaint that the party has received from the agency and the
213 date on which the agency pleading was received.
214
215 The agency may provide an election-of-rights form for the
216 respondent’s use in requesting a hearing, so long as any form
217 provided by the agency calls for the information in sub
218 subparagraphs a. through c. and does not impose any additional
219 requirements on a respondent in order to request a hearing,
220 unless such requirements are specifically authorized by law.
221 6. Uniform rules of procedure for the filing and prompt
222 disposition of petitions for declaratory statements. The rules
223 shall also describe the contents of the notices that must be
224 published in the Florida Administrative Weekly under s. 120.565,
225 including any applicable time limit for the filing of petitions
226 to intervene or petitions for administrative hearing by persons
227 whose substantial interests may be affected.
228 7. Provision of a method by which each agency head shall
229 provide a description of the agency’s organization and general
230 course of its operations. The rules shall require that the
231 statement concerning the agency’s organization and operations be
232 published on the agency’s website.
233 8. Uniform rules establishing procedures for granting or
234 denying petitions for variances and waivers pursuant to s.
235 120.542.
236 Section 9. Paragraph (b) of subsection (4) of section
237 57.111, Florida Statutes, is amended to read:
238 57.111 Civil actions and administrative proceedings
239 initiated by state agencies; attorneys’ fees and costs.—
240 (4)
241 (b)1. To apply for an award under this section, the
242 attorney for the prevailing small business party must submit an
243 itemized affidavit to the court which first conducted the
244 adversarial proceeding in the underlying action, or by
245 electronic means through the division’s website to the Division
246 of Administrative Hearings which shall assign an administrative
247 law judge, in the case of a proceeding pursuant to chapter 120,
248 which affidavit shall reveal the nature and extent of the
249 services rendered by the attorney as well as the costs incurred
250 in preparations, motions, hearings, and appeals in the
251 proceeding.
252 2. The application for an award of attorney’s fees must be
253 made within 60 days after the date that the small business party
254 becomes a prevailing small business party.
255 Section 10. Paragraphs (c) and (d) of subsection (1) of
256 section 120.56, Florida Statutes, are amended to read:
257 120.56 Challenges to rules.—
258 (1) GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A
259 RULE OR A PROPOSED RULE.—
260 (c) The petition shall be filed by electronic means with
261 the division which shall, immediately upon filing, forward by
262 electronic means copies to the agency whose rule is challenged,
263 the Department of State, and the committee. Within 10 days after
264 receiving the petition, the division director shall, if the
265 petition complies with the requirements of paragraph (b), assign
266 an administrative law judge who shall conduct a hearing within
267 30 days thereafter, unless the petition is withdrawn or a
268 continuance is granted by agreement of the parties or for good
269 cause shown. Evidence of good cause includes, but is not limited
270 to, written notice of an agency’s decision to modify or withdraw
271 the proposed rule or a written notice from the chair of the
272 committee stating that the committee will consider an objection
273 to the rule at its next scheduled meeting. The failure of an
274 agency to follow the applicable rulemaking procedures or
275 requirements set forth in this chapter shall be presumed to be
276 material; however, the agency may rebut this presumption by
277 showing that the substantial interests of the petitioner and the
278 fairness of the proceedings have not been impaired.
279 (d) Within 30 days after the hearing, the administrative
280 law judge shall render a decision and state the reasons therefor
281 in writing. The division shall forthwith transmit by electronic
282 means copies of the administrative law judge’s decision to the
283 agency, the Department of State, and the committee.
284 Section 11. Paragraph (a) of subsection (2) of section
285 120.569, Florida Statutes, is amended to read:
286 120.569 Decisions which affect substantial interests.—
287 (2)(a) Except for any proceeding conducted as prescribed in
288 s. 120.56, a petition or request for a hearing under this
289 section shall be filed with the agency. If the agency requests
290 an administrative law judge from the division, it shall so
291 notify the division by electronic means through the division’s
292 website within 15 days after receipt of the petition or request.
293 A request for a hearing shall be granted or denied within 15
294 days after receipt. On the request of any agency, the division
295 shall assign an administrative law judge with due regard to the
296 expertise required for the particular matter. The referring
297 agency shall take no further action with respect to a proceeding
298 under s. 120.57(1), except as a party litigant, as long as the
299 division has jurisdiction over the proceeding under s.
300 120.57(1). Any party may request the disqualification of the
301 administrative law judge by filing an affidavit with the
302 division prior to the taking of evidence at a hearing, stating
303 the grounds with particularity.
304 Section 12. Paragraph (d) of subsection (3) of section
305 120.57, Florida Statutes, is amended to read:
306 120.57 Additional procedures for particular cases.—
307 (3) ADDITIONAL PROCEDURES APPLICABLE TO PROTESTS TO
308 CONTRACT SOLICITATION OR AWARD.—Agencies subject to this chapter
309 shall use the uniform rules of procedure, which provide
310 procedures for the resolution of protests arising from the
311 contract solicitation or award process. Such rules shall at
312 least provide that:
313 (d)1. The agency shall provide an opportunity to resolve
314 the protest by mutual agreement between the parties within 7
315 days, excluding Saturdays, Sundays, and state holidays, after
316 receipt of a formal written protest.
317 2. If the subject of a protest is not resolved by mutual
318 agreement within 7 days, excluding Saturdays, Sundays, and state
319 holidays, after receipt of the formal written protest, and if
320 there is no disputed issue of material fact, an informal
321 proceeding shall be conducted pursuant to subsection (2) and
322 applicable agency rules before a person whose qualifications
323 have been prescribed by rules of the agency.
324 3. If the subject of a protest is not resolved by mutual
325 agreement within 7 days, excluding Saturdays, Sundays, and state
326 holidays, after receipt of the formal written protest, and if
327 there is a disputed issue of material fact, the agency shall
328 refer the protest to the division by electronic means through
329 the division’s website for proceedings under subsection (1).
330 Section 13. Subsection (1) of section 552.40, Florida
331 Statutes, is amended to read:
332 552.40 Administrative remedy for alleged damage due to the
333 use of explosives in connection with construction materials
334 mining activities.—
335 (1) A person may initiate an administrative proceeding to
336 recover damages resulting from the use of explosives in
337 connection with construction materials mining activities by
338 filing a petition with the Division of Administrative Hearings
339 by electronic means through the division’s website on a form
340 provided by it and accompanied by a filing fee of $100 within
341 180 days after the occurrence of the alleged damage. If the
342 petitioner submits an affidavit stating that the petitioner’s
343 annual income is less than 150 percent of the applicable federal
344 poverty guideline published in the Federal Register by the
345 United States Department of Health and Human Services, the $100
346 filing fee must be waived.
347 Section 14. Paragraph (b) of subsection (4) of section
348 553.73, Florida Statutes, is amended to read:
349 553.73 Florida Building Code.—
350 (4)
351 (b) Local governments may, subject to the limitations of
352 this section, adopt amendments to the technical provisions of
353 the Florida Building Code which apply solely within the
354 jurisdiction of such government and which provide for more
355 stringent requirements than those specified in the Florida
356 Building Code, not more than once every 6 months. A local
357 government may adopt technical amendments that address local
358 needs if:
359 1. The local governing body determines, following a public
360 hearing which has been advertised in a newspaper of general
361 circulation at least 10 days before the hearing, that there is a
362 need to strengthen the requirements of the Florida Building
363 Code. The determination must be based upon a review of local
364 conditions by the local governing body, which review
365 demonstrates by evidence or data that the geographical
366 jurisdiction governed by the local governing body exhibits a
367 local need to strengthen the Florida Building Code beyond the
368 needs or regional variation addressed by the Florida Building
369 Code, that the local need is addressed by the proposed local
370 amendment, and that the amendment is no more stringent than
371 necessary to address the local need.
372 2. Such additional requirements are not discriminatory
373 against materials, products, or construction techniques of
374 demonstrated capabilities.
375 3. Such additional requirements may not introduce a new
376 subject not addressed in the Florida Building Code.
377 4. The enforcing agency shall make readily available, in a
378 usable format, all amendments adopted pursuant to this section.
379 5. Any amendment to the Florida Building Code shall be
380 transmitted within 30 days by the adopting local government to
381 the commission. The commission shall maintain copies of all such
382 amendments in a format that is usable and obtainable by the
383 public. Local technical amendments shall not become effective
384 until 30 days after the amendment has been received and
385 published by the commission.
386 6. Any amendment to the Florida Building Code adopted by a
387 local government pursuant to this paragraph shall be effective
388 only until the adoption by the commission of the new edition of
389 the Florida Building Code every third year. At such time, the
390 commission shall review such amendment for consistency with the
391 criteria in paragraph (9)(a) and adopt such amendment as part of
392 the Florida Building Code or rescind the amendment. The
393 commission shall immediately notify the respective local
394 government of the rescission of any amendment. After receiving
395 such notice, the respective local government may readopt the
396 rescinded amendment pursuant to the provisions of this
397 paragraph.
398 7. Each county and municipality desiring to make local
399 technical amendments to the Florida Building Code shall by
400 interlocal agreement establish a countywide compliance review
401 board to review any amendment to the Florida Building Code,
402 adopted by a local government within the county pursuant to this
403 paragraph, that is challenged by any substantially affected
404 party for purposes of determining the amendment’s compliance
405 with this paragraph. If challenged, the local technical
406 amendments shall not become effective until time for filing an
407 appeal pursuant to subparagraph 8. has expired or, if there is
408 an appeal, until the commission issues its final order
409 determining the adopted amendment is in compliance with this
410 subsection.
411 8. If the compliance review board determines such amendment
412 is not in compliance with this paragraph, the compliance review
413 board shall notify such local government of the noncompliance
414 and that the amendment is invalid and unenforceable until the
415 local government corrects the amendment to bring it into
416 compliance. The local government may appeal the decision of the
417 compliance review board to the commission. If the compliance
418 review board determines such amendment to be in compliance with
419 this paragraph, any substantially affected party may appeal such
420 determination to the commission. Any such appeal shall be filed
421 with the commission within 14 days of the board’s written
422 determination. The commission shall promptly refer the appeal to
423 the Division of Administrative Hearings by electronic means
424 through the division’s website for the assignment of an
425 administrative law judge. The administrative law judge shall
426 conduct the required hearing within 30 days, and shall enter a
427 recommended order within 30 days of the conclusion of such
428 hearing. The commission shall enter a final order within 30 days
429 thereafter. The provisions of chapter 120 and the uniform rules
430 of procedure shall apply to such proceedings. The local
431 government adopting the amendment that is subject to challenge
432 has the burden of proving that the amendment complies with this
433 paragraph in proceedings before the compliance review board and
434 the commission, as applicable. Actions of the commission are
435 subject to judicial review pursuant to s. 120.68. The compliance
436 review board shall determine whether its decisions apply to a
437 respective local jurisdiction or apply countywide.
438 9. An amendment adopted under this paragraph shall include
439 a fiscal impact statement which documents the costs and benefits
440 of the proposed amendment. Criteria for the fiscal impact
441 statement shall include the impact to local government relative
442 to enforcement, the impact to property and building owners, as
443 well as to industry, relative to the cost of compliance. The
444 fiscal impact statement may not be used as a basis for
445 challenging the amendment for compliance.
446 10. In addition to subparagraphs 7. and 9., the commission
447 may review any amendments adopted pursuant to this subsection
448 and make nonbinding recommendations related to compliance of
449 such amendments with this subsection.
450 Section 15. Paragraph (b) of subsection (4) of section
451 961.03, Florida Statutes, is amended to read:
452 961.03 Determination of status as a wrongfully incarcerated
453 person; determination of eligibility for compensation.—
454 (4)
455 (b) If the prosecuting authority responds as set forth in
456 paragraph (2)(b), and the court determines that the petitioner
457 is eligible under the provisions of s. 961.04, but the
458 prosecuting authority contests the nature, significance or
459 effect of the evidence of actual innocence, or the facts related
460 to the petitioner’s alleged wrongful incarceration, the court
461 shall set forth its findings and transfer the petition by
462 electronic means through the division’s website to the division
463 for findings of fact and a recommended determination of whether
464 the petitioner has established that he or she is a wrongfully
465 incarcerated person who is eligible for compensation under this
466 act.
467 Section 16. This act shall take effect July 1, 2011.
468
469 ================= T I T L E A M E N D M E N T ================
470 And the title is amended as follows:
471
472 Delete lines 3 - 17
473 and insert:
474 of court and other legal documents; creating ss.
475 27.341 and 27.5112, F.S.; requiring each state
476 attorney and public defender to electronically file
477 court documents with the clerk of the court and
478 receive court documents from the clerk of the court;
479 defining the term “court documents”; providing
480 legislative expectations that the state attorneys and
481 public defenders consult with specified entities;
482 requiring the Florida Prosecuting Attorneys
483 Association and the Florida Public Defender
484 Association report to the President of the Senate and
485 the Speaker of the House of Representatives by a
486 specified date on the progress made to use the Florida
487 Courts E-Portal system or the clerks’ offices portals
488 to electronically file and receive court documents;
489 amending ss. 440.192 and 440.25, F.S.; providing for
490 electronic procedures for filing documents and
491 resolving benefit disputes in workers’ compensation
492 proceedings; requiring a response to a petition for
493 workers’ compensation benefits to be filed by approved
494 electronic means; amending ss. 440.29 and 440.45,
495 F.S.; requiring that the practice and procedure before
496 the judges of compensation claims be governed by the
497 Office of the Judges of Compensation Claims instead of
498 the Supreme Court; authorizing the Office of the
499 Judges of Compensation Claims to adopt rules to
500 implement electronic procedures; amending s. 120.52,
501 F.S.; requiring use of electronic procedures by those
502 represented by an attorney; amending s. 120.54, F.S.;
503 requiring a petitioner requesting an administrative
504 hearing to include the petitioner’s e-mail address;
505 amending ss. 57.111, 120.56, 120.569, 120.57, 552.40,
506 553.73, and 961.03, F.S.; providing for electronic
507 procedures in administrative proceedings; providing an
508 effective date.