Florida Senate - 2012                             CS for SB 1312
       
       
       
       By the Committee on Budget; and Senator Gaetz
       
       
       
       
       576-04372-12                                          20121312c1
    1                        A bill to be entitled                      
    2         An act relating to administrative authority; providing
    3         legislative findings; providing legislative intent;
    4         amending s. 20.02, F.S.; clarifying the authority of
    5         the Governor; amending s. 20.03, F.S.; revising the
    6         definition of the terms “head of the department” and
    7         “secretary”; defining the term “to serve at the
    8         pleasure”; clarifying supervisory powers of appointing
    9         authority; amending s. 20.05, F.S., relating to powers
   10         and duties of department heads; incorporating
   11         constitutional allocation of executive authority;
   12         creating s. 120.515, F.S.; declaring policy regarding
   13         executive authority with respect to the Administrative
   14         Procedure Act; amending s. 120.52, F.S.; revising the
   15         term “agency head” to clarify supervisory powers of
   16         the appointing authority; amending s. 11.242, F.S.;
   17         providing for removal of duplicative, redundant, or
   18         unused rulemaking authority as part of the reviser’s
   19         bill process; repealing s. 14.34(3), F.S., relating to
   20         the Governor’s Medal of Merit; repealing rulemaking
   21         authority; amending s. 15.16, F.S.; deleting authority
   22         of the Department of State to adopt rules relating to
   23         the issuance of apostilles; repealing s. 15.18(7),
   24         F.S., relating to international and cultural
   25         relations; repealing rulemaking authority of the
   26         Secretary of State with respect to entering into
   27         contracts that are primarily for promotional services
   28         and events; amending s. 16.60, F.S.; deleting
   29         authority of the Attorney General to adopt rules
   30         relating to mediation proceedings; repealing s.
   31         17.0416(2), F.S., relating to the authority to provide
   32         services on a fee basis; repealing rulemaking
   33         authority of the Department of Financial Services with
   34         respect thereto; repealing s. 17.59(3), F.S., relating
   35         to safekeeping services; repealing rulemaking
   36         authority of the Chief Financial Officer for the
   37         proper management and maintenance of the collateral
   38         management service; repealing s. 25.371, F.S.,
   39         relating to the effect of rules adopted by the Supreme
   40         Court on statutory provisions; repealing s. 28.43,
   41         F.S., relating to the adoption of rules in relation to
   42         ss. 28.35, 28.36, and 28.37, relating to duties of the
   43         Florida Clerks of Court Operations Corporation and
   44         clerks of the court; repealing s. 35.07, F.S.,
   45         relating to power of the district courts of appeal to
   46         make rules and regulations; repealing s. 39.001(11),
   47         F.S., relating to rulemaking authority of Executive
   48         Office of the Governor with respect to the protection
   49         of children under chapter 39; amending s. 39.0137,
   50         F.S.; deleting rulemaking authority of the Department
   51         of Children and Family Services with respect to
   52         enforcement of the federal Indian Child Welfare Act
   53         and federal Multi-Ethnic Placement Act of 1994;
   54         repealing s. 39.824(1), F.S.; repealing a provision
   55         requesting the Supreme Court to adopt rules of
   56         juvenile procedure for purposes of pt. XI, ch. 39,
   57         relating to guardians ad litem and guardian advocates;
   58         amending s. 63.167, F.S.; repealing rulemaking
   59         authority of the Department of Children and Family
   60         Services relating to the establishment and operation
   61         of the state adoption information center; repealing s.
   62         88.9051, F.S., relating to authority of the Department
   63         of Revenue to adopt rules to implement the Uniform
   64         Interstate Family Support Act; amending ss. 97.026,
   65         97.0555, and 97.061, F.S.; repealing rulemaking
   66         authority of the Department of State under the
   67         Election Code; repealing s. 101.56062(3), F.S.;
   68         repealing rulemaking authority of the department
   69         relating to standards for accessible voting systems;
   70         amending ss. 103.101 and 106.165, F.S.; repealing
   71         rulemaking authority of the department relating to
   72         conduct of the presidential preference primary and use
   73         of closed captioning and descriptive narrative in
   74         television broadcasts; amending s. 110.1055, F.S.,
   75         relating to rulemaking authority of the Department of
   76         Management Services with respect to chapter 110,
   77         relating to state employment; deleting obsolete
   78         language; repealing s. 110.1099(5), F.S.; repealing
   79         rulemaking authority of the department relating to
   80         education and training opportunities for state
   81         employees; repealing s. 110.1228(7), F.S.; repealing
   82         rulemaking authority of the department relating to
   83         participation in the state group health insurance and
   84         prescription drug coverage programs by small counties,
   85         small municipalities, and district school boards
   86         located in small counties; amending s. 110.12301,
   87         F.S.; repealing rulemaking authority of the department
   88         relating to dependent eligibility verification
   89         services for the state group insurance program;
   90         repealing s. 112.1915(4), F.S.; repealing rulemaking
   91         authority of the State Board of Education relating to
   92         death benefits for teachers and school administrators;
   93         amending s. 118.12, F.S.; repealing rulemaking
   94         authority of the Department of Revenue relating to
   95         certification of a civil-law notary’s authority;
   96         repealing s. 121.085(1), F.S.; repealing authority of
   97         the Department of Management Services relating to
   98         submission of information necessary to establish a
   99         member’s claim of creditable service under the Florida
  100         Retirement System; repealing s. 121.1001(4)(b), F.S.;
  101         repealing rulemaking authority of the Division of
  102         Retirement relating to administration of the Florida
  103         Retirement System Preservation of Benefits Plan;
  104         repealing s. 121.4503(3), F.S.; repealing rulemaking
  105         authority of the Department of Management Services
  106         relating to the Florida Retirement System
  107         Contributions Clearing Trust Fund; amending s.
  108         121.5911, F.S.; deleting rulemaking authority of the
  109         department relating to maintaining the qualified
  110         status of the disability retirement program and the
  111         Florida Retirement System Pension Plan; repealing s.
  112         125.902(4), F.S.; repealing rulemaking authority of
  113         the Department of Children and Family Services
  114         relating to children’s services council or juvenile
  115         welfare board incentive grants; repealing s.
  116         154.503(4), F.S.; repealing rulemaking authority of
  117         the Department of Health relating to the Primary Care
  118         for Children and Families Challenge Grant Program;
  119         amending s. 159.8081, F.S.; repealing rulemaking
  120         authority of the Department of Economic Opportunity
  121         relating to the manufacturing facility bond pool;
  122         amending s. 159.8083, F.S.; repealing rulemaking
  123         authority of the department relating to the Florida
  124         First Business allocation pool; repealing s.
  125         159.825(3), F.S.; repealing rulemaking authority of
  126         the State Board of Administration relating to terms of
  127         bonds; repealing s. 161.75, F.S.; repealing rulemaking
  128         authority of the Department of Environmental
  129         Regulation and the Fish and Wildlife Conservation
  130         Commission relating to the Oceans and Coastal
  131         Resources Act; repealing s. 163.462, F.S.; repealing
  132         rulemaking authority of the Department of Community
  133         Affairs relating to the Community Redevelopment Act of
  134         1969; repealing s. 163.517(6), F.S.; repealing
  135         rulemaking authority of the Department of Legal
  136         Affairs relating to the Safe Neighborhoods Program;
  137         repealing s. 175.341(2), F.S.; repealing rulemaking
  138         authority of the Division of Retirement relating to
  139         firefighter pensions; repealing s. 177.504(2)(e),
  140         F.S.; repealing rulemaking authority of the Department
  141         of Environmental Protection relating to the Florida
  142         Public Land Survey Restoration and Perpetuation Act;
  143         repealing s. 185.23(2), F.S.; repealing rulemaking
  144         authority of the Division of Retirement relating to
  145         municipal police pensions; repealing s. 255.25001(2),
  146         F.S.; repealing rulemaking authority of the Department
  147         of Management Services relating to determining whether
  148         a lease-purchase of a state-owned office building is
  149         in the best interests of the state; repealing s.
  150         257.34(7), F.S.; repealing rulemaking authority of the
  151         Division of Library and Information Services of the
  152         Department of State relating to the Florida
  153         International Archive and Repository; repealing s.
  154         364.0135(6), F.S.; repealing rulemaking authority of
  155         the Department of Management Services relating to the
  156         promotion of broadband adoption; amending s. 366.85,
  157         F.S.; repealing rulemaking authority of the Division
  158         of Consumer Services of the Department of Agriculture
  159         and Consumer Services relating to the Florida Energy
  160         Efficiency and Conservation Act; repealing s.
  161         409.5092, F.S.; repealing rulemaking authority of the
  162         Department of Children and Family Services relating to
  163         permission for weatherization; amending s. 501.142,
  164         F.S.; repealing rulemaking authority of the Department
  165         of Agriculture and Consumer Services relating to
  166         retail sales establishments and authority to sanction
  167         violations of such rules; amending s. 985.682, F.S.;
  168         conforming a cross-reference; providing an effective
  169         date.
  170  
  171  Be It Enacted by the Legislature of the State of Florida:
  172  
  173         Section 1. Legislative findings.—The Legislature finds
  174  that:
  175         (1) For the preservation of liberty and the protection of
  176  individual rights, the people of the State of Florida adopted a
  177  republican form of government delegating and limiting sovereign
  178  power to be exercised by their representatives in three
  179  separate, but equal, branches: the legislative branch, the
  180  executive branch, and the judicial branch.
  181         (2) By Article IV of the State Constitution the people
  182  vested supreme executive power in the Governor and apportioned
  183  specific substantive powers among the other elected officers
  184  designated in that Article, including the Lieutenant Governor,
  185  the Attorney General, the Chief Financial Officer, and the
  186  Commissioner of Agriculture.
  187         (3) As noted by Alexander Hamilton: “Energy in the
  188  executive is a leading character in the definition of good
  189  government .... A feeble executive implies a feeble execution of
  190  the government. A feeble execution is but another phrase for a
  191  bad execution: And a government ill executed, whatever it may be
  192  in theory, must be in practice a bad government.”
  193         (4) Since the framing of Florida’s first constitution in
  194  1838, the people have adhered to the principles expressed by Mr.
  195  Hamilton in the vesting of supreme executive power directly in
  196  the Governor but choosing to vest other specific executive
  197  powers directly in other denominated officials or entities.
  198         (5) In uninterrupted consistency with their longstanding
  199  vesting of the supreme executive power in the Governor, the
  200  people in 1968 adopted s. 6, Article IV of the State
  201  Constitution, generally directing and limiting the Legislature
  202  to allot the functions of the executive branch among not more
  203  than 25 departments and to place the administration of each
  204  department under the direct supervision of the Governor, the
  205  Lieutenant Governor, the Governor and Cabinet, a Cabinet member,
  206  or an officer or board appointed by and serving at the pleasure
  207  of the Governor.
  208         (6) Each officer of state government is obligated to
  209  construe the language of the State Constitution consistent with
  210  its express and clearly implied intent, must give words their
  211  ordinary and customary meaning unless the context indicates
  212  otherwise, must construe all parts together to give them their
  213  full effect, and must not construe the terms of the State
  214  Constitution to yield an absurd result.
  215         (7) Under the authority of s. 6, Article IV of the State
  216  Constitution, the Legislature adopted and the Governor signed
  217  into law chapter 69-106, Laws of Florida, which restructured the
  218  executive branch into not more than 25 departments and
  219  designated their direct administration.
  220         (8) At the time of adopting chapter 69-106, Laws of
  221  Florida, the Legislature was informed by the debate in the 41st
  222  Legislature (under the Constitution of 1885) about the text for
  223  s. 6, Article IV for the proposed State Constitution, that the
  224  41st Legislature expressly considered and expressly rejected
  225  alternative proposals which would have required general law to
  226  provide supervisory authority to elected constitutional officers
  227  over the policies of executive departments, and that in
  228  submitting the 1968 State Constitution to the people, their
  229  Legislature intended the proposal to ensure that the
  230  administration and policies of each executive branch department
  231  would be under the final authority and control either of the
  232  Governor or one or more elected constitutional officers.
  233         (9) Construing together ss. 1(a) and 6, Article IV of the
  234  State Constitution, the Legislature at all times understood that
  235  these sections create a general legal presumption against the
  236  creation of a class of unelected, subordinate officers
  237  exercising executive power independent of the direction and
  238  supervision of the Governor or one or more specified elected
  239  constitutional officers.
  240         (10) Section 6, Article IV of the State Constitution has
  241  not been amended since its ratification by the people on
  242  November 5, 1968.
  243         (11) An officer appointed by and serving at the pleasure of
  244  the Governor to administer a department exercises a portion of
  245  the sovereign power assigned under the State Constitution to the
  246  executive branch. Such appointees remain subject to the
  247  direction and supervision of one or more elected constitutional
  248  officers who have the ultimate accountability to the people for
  249  the faithful discharge of such responsibility.
  250         (12) Regarding the Governor’s accountability for the
  251  supervision and direction of those appointed officers serving at
  252  the pleasure of the Governor, the Legislature is informed by the
  253  following analysis:
  254         (a) As opined by Justice Polston: “(T)he Governor has the
  255  constitutional authority to act as this State’s chief
  256  administrative officer as well as the constitutional duty to
  257  faithfully execute this State’s laws and to manage and hold
  258  agencies under his charge accountable to State laws, including
  259  the APA. (The Supreme) Court has explained that ‘[t]he Governor
  260  is given broad authority to fulfill his duty in taking “care
  261  that the laws be faithfully executed.”’”
  262         (b) As opined by Chief Justice Canady: “(I)f ‘supreme
  263  executive power’ means anything, it must mean that the Governor
  264  can supervise and direct the policymaking choices — within the
  265  range of choices permitted by law — of the subordinate executive
  266  branch officers who serve at his pleasure.”
  267         (13) The Legislature has not expressly insulated
  268  discretionary executive policy decisions from the constitutional
  269  structure of accountability to elected officials established in
  270  Article IV of the State Constitution.
  271         (14) Pertaining to the exercise of delegated rulemaking
  272  authority, the Legislature is informed by the following:
  273         (a) The exercise of delegated quasi-legislative power
  274  within the parameters of Florida’s Administrative Procedure Act
  275  and related statutes involves certain discretionary policy
  276  choices by executive branch officers. In authorizing the
  277  exercise of this power, the Legislature has imposed no
  278  restriction on the authority of the Governor or any other
  279  constitutional officer or collegial body to supervise and direct
  280  such policy choices made by subordinate executive branch
  281  officials in rulemaking.
  282         (b) Florida law provides no specific process for carrying
  283  out the Governor’s executive duties with respect to holding his
  284  executive agencies accountable in their rulemaking functions.
  285         (c) As correctly opined by Chief Justice Canady: “Given the
  286  constitutional structure establishing the power and
  287  responsibilities of the Governor, it is unjustified to conclude
  288  ... that by assigning rulemaking power to agency heads, the
  289  Legislature implicitly divested the Governor of the supervisory
  290  power with respect to executive officials who serve at his
  291  pleasure.”
  292         (d) A Governor’s actions are presumed to be in accord with
  293  the duties of that office.
  294         (15) A statutory definition of “agency head” is neither
  295  intended nor effective to change the fundamental general
  296  principles of Article IV of the State Constitution:
  297         (a) That executive branch power may only be exercised under
  298  the direct or indirect supervision of one or more elected
  299  constitutional officers; and
  300         (b) That the supervision of any executive agency not
  301  expressly allocated to one or more particular constitutional
  302  officers remains under the Governor’s supreme executive power.
  303         (16) The Administrative Procedure Act is a uniform
  304  procedural statute ensuring full public access and participation
  305  in any exercise of delegated legislative authority by executive
  306  branch entities.
  307         (17) The delegation of rulemaking authority by substantive
  308  statute and establishment of uniform procedures under the
  309  Administrative Procedure Act were intended and made by the
  310  Legislature to conform and comply with the separation of powers
  311  required under s. 3, Article II of the State Constitution, with
  312  no general intrusion into the role and authority of the elected
  313  executive branch officers as established in Article IV of the
  314  State Constitution.
  315         (18) Continual review and assessment of existing and
  316  proposed regulations is reasonably necessary to ensure that the
  317  laws of the state are faithfully executed without unduly
  318  burdening the state’s economy and imposing needless costs and
  319  requirements on citizens, businesses, and local governments.
  320         (19) Fiscal accountability by all agencies is reasonably
  321  necessary to ensure integrity in state government.
  322         (20) While agency heads and personnel bring expertise to a
  323  particular subject matter, they are not directly accountable to
  324  the electorate and do not necessarily have an incentive to take
  325  a systemic approach to regulatory problems, to budget
  326  constraints, or to the overall regulatory burden imposed by the
  327  state on citizens and businesses.
  328         (21) The elected constitutional officers have a democratic
  329  mandate, are directly accountable to the people, and have the
  330  duty and power to assess the overall legality, efficiency, and
  331  operation of government within their constitutional and
  332  statutory jurisdictions.
  333         (22) Review and oversight of agency rulemaking is
  334  encompassed by the Governor’s powers and duties under the State
  335  Constitution to “take care that the laws be faithfully executed”
  336  and to serve as “the chief administrative officer of the state
  337  responsible for the planning and budgeting for the state.”
  338         (23) The State Constitution and the Florida Statutes
  339  establish that many agencies of state government are
  340  administered by an officer “appointed by and serving at the
  341  pleasure of the governor,” and in order to determine whether an
  342  officer shall continue to serve at the Governor’s pleasure, it
  343  is necessary for the Governor to set expectations and standards
  344  for that officer and to measure agency performance against those
  345  expectations and standards.
  346         (24) Executive Orders 11-01 and 11-72 established the
  347  Office of Fiscal Accountability and Regulatory Reform (OFARR) to
  348  ensure that agency rules (proposed and existing) are efficient,
  349  are not overly burdensome, and faithfully adhere to statutes as
  350  enacted by the Legislature.
  351         (25) Upon establishment of OFARR, all agencies under the
  352  direction of the Governor were required to obtain OFARR review
  353  and approval before developing new rules or amending or
  354  repealing existing rules.
  355         (a) OFARR’s review process has facilitated the Governor’s
  356  exercise of the power and duty to serve as the chief executive
  357  and administrative officer of the state.
  358         (b) OFARR’s review process has facilitated the Governor’s
  359  planning and budgeting for the state.
  360         (c) OFARR has reviewed thousands of rules and regulations
  361  and helped agencies identify over 1,000 unnecessary and
  362  unauthorized rules and regulations for repeal.
  363         (d) Since January 4, 2011, OFARR has reviewed hundreds of
  364  proposed agency rulemaking actions.
  365         (e) OFARR’s review process has thus far been successful in
  366  helping to ensure efficient and effective performance by state
  367  government.
  368         (26) The Supreme Court of Florida, in the case of Whiley v.
  369  Scott, No. SC11-592, issued an unsigned opinion joined by five
  370  Justices, which held that Executive Orders 11-01 and 11-72
  371  “impermissibly suspended agency rulemaking to the extent that
  372  [they] included a requirement that [OFARR] must first permit an
  373  agency to engage in the rulemaking which has been delegated by
  374  the Florida Legislature.”
  375         (a) The majority opinion in Whiley:
  376         1. Failed to address and apply the plain meaning of ss. 1
  377  and 6 of Article IV of the State Constitution, and thereby may
  378  be read to restrain the power of the Governor under general law
  379  with respect to the supervision of agency heads;
  380         2. Failed to address the implications of the court’s
  381  precedent in Jones v. Chiles, 638 So. 2d 48 (Fla. 1994), which
  382  recognized the proper scope of executive power under the State
  383  Constitution;
  384         3. Failed to address the precedent set by dozens of
  385  executive orders issued by prior governors of Florida;
  386         4. Failed to address the court’s holding that “[t]he
  387  principles underlying the governmental separation of powers
  388  antedate our Florida Constitution and were collectively adopted
  389  by the union of states in our federal constitution,” Chiles v.
  390  Children A, B, C, D, E, & F, 589 So. 2d 260 (Fla. 1991), and in
  391  light of that precedent, failed to consider that Executive
  392  Orders 11-01 and 11-72 cannot be meaningfully distinguished from
  393  similar executive orders issued by the last four presidents of
  394  the United States and the governors of at least 29 other states;
  395  and
  396         5. Unreasonably relied on a 1983 Attorney General Opinion,
  397  which the Attorney General distinguished and limited to its
  398  facts in an amicus brief in Whiley.
  399         (b) The dissenting opinions of two justices in the Whiley
  400  case state the correct interpretation of the State Constitution
  401  and present persuasive reasoning and arguments in support of
  402  that interpretation.
  403         (c) The Supreme Court withheld the writ sought by Whiley.
  404         (d) Notwithstanding the above, the majority opinion in
  405  Whiley is to be afforded the deference due an advisory opinion
  406  of the Supreme Court of Florida because no writ or other final
  407  order was entered beyond a mere declaration of law.
  408         Section 2. Executive Orders 11-72 and 11-211 are affirmed
  409  to be consistent with state law and the public policy of the
  410  state.
  411         Section 3. The Legislature intends that the amendments made
  412  by this act to ss. 20.02, 20.03, and 20.05, Florida Statutes,
  413  which apply to the organizational structure of the executive
  414  branch, and the creation of s. 120.515, Florida Statutes, which
  415  applies to administrative procedure, are to clarify that the
  416  placement of an executive department under the direct
  417  administration of an officer or board appointed by and serving
  418  at the pleasure of the Governor does not implicitly limit or
  419  restrict the Governor’s prerogative, legal authority, and
  420  constitutional responsibility to direct and supervise the
  421  execution of the law and the exercise of lawful discretion.
  422         Section 4. Subsections (3) through (7) of section 20.02,
  423  Florida Statutes, are renumbered as subsections (4) through (8),
  424  respectively, and a new subsection (3) is added to that section
  425  to read:
  426         20.02 Declaration of policy.—
  427         (3) The administration of any executive branch department
  428  or entity placed under the direct supervision of an officer or
  429  board appointed by and serving at the pleasure of the Governor
  430  shall remain at all times under the constitutional executive
  431  authority of the Governor, in accordance with ss. 1(a) and 6,
  432  Art. IV of the State Constitution and such officer or board
  433  generally remains subject to oversight, direction, and
  434  supervision by the Governor.
  435         Section 5. Subsections (4) and (5) of section 20.03,
  436  Florida Statutes, are amended, and subsection (13) is added to
  437  that section, to read:
  438         20.03 Definitions.—To provide uniform nomenclature
  439  throughout the structure of the executive branch, the following
  440  definitions apply:
  441         (4) “Head of the department” means the individual under
  442  whom or the board under which direct administration in charge of
  443  the department is placed by statute. Where direct administration
  444  of a department is placed under an officer or board appointed by
  445  and serving at the pleasure of the Governor, that officer or
  446  board remains subject to the Governor’s supervision and
  447  direction.
  448         (5) “Secretary” means an individual who is appointed by the
  449  Governor to head a department and who is not otherwise named in
  450  the State Constitution.
  451         (13) “To serve at the pleasure” means the appointee serves
  452  in the office until removed by the appointing authority.
  453  Consistent with the allotment of executive authority under ss. 1
  454  and 6, Art. IV of the State Constitution, an appointee serving
  455  at the pleasure of the appointing authority generally remains
  456  subject to the direction and supervision of the appointing
  457  authority.
  458         Section 6. Subsection (1) of section 20.05, Florida
  459  Statutes, is amended to read:
  460         20.05 Heads of departments; powers and duties.—
  461         (1) Each head of a department, subject to the allotment of
  462  executive power under Art. IV of the State Constitution, and
  463  except as otherwise provided by law, must:
  464         (a) Plan, direct, coordinate, and execute the powers,
  465  duties, and functions vested in that department or vested in a
  466  division, bureau, or section of that department; powers and
  467  duties assigned or transferred to a division, bureau, or section
  468  of the department must not be construed to limit this authority
  469  and this responsibility;
  470         (b) Have authority, without being relieved of
  471  responsibility, to execute any of the powers, duties, and
  472  functions vested in the department or in any administrative unit
  473  thereof through administrative units and through assistants and
  474  deputies designated by the head of the department from time to
  475  time, unless the head of the department is explicitly required
  476  by law to perform the same without delegation;
  477         (c) Compile annually a comprehensive program budget
  478  reporting all program and fiscal matters related to the
  479  operation of his or her department, including each program,
  480  subprogram, and activity, and other matters as required by law;
  481         (d) Reimburse the members of advisory bodies, commissions,
  482  and boards of trustees for their actual and necessary expenses
  483  incurred in the performance of their duties in accordance with
  484  s. 112.061;
  485         (e) Subject to the requirements of chapter 120, exercise
  486  existing authority to adopt rules pursuant and limited to the
  487  powers, duties, and functions transferred to the department;
  488         (f) Exercise authority on behalf of the department to
  489  accept gifts, grants, bequests, loans, and endowments for
  490  purposes consistent with the powers, duties, and functions of
  491  the department. All such funds must be deposited in the State
  492  Treasury and appropriated by the Legislature for the purposes
  493  for which they were received by the department;
  494         (g) If a department is under the direct supervision of a
  495  board, including a board consisting of the Governor and Cabinet,
  496  however designated, employ an executive director to serve at its
  497  pleasure; and
  498         (h) Make recommendations concerning more effective internal
  499  structuring of the department to the Legislature. Unless
  500  otherwise required by law, such recommendations must be provided
  501  to the Legislature at least 30 days before the first day of the
  502  regular session at which they are to be considered, when
  503  practicable.
  504         Section 7. Section 120.515, Florida Statutes, is created to
  505  read:
  506         120.515 Declaration of policy.—This chapter provides
  507  uniform procedures for the exercise of specified authority. This
  508  chapter does not limit or impinge upon the assignment of
  509  executive power under Art. IV of the State Constitution or the
  510  legal authority of an appointing authority to direct and
  511  supervise those appointees serving at the pleasure of the
  512  appointing authority. For purposes of this chapter, adherence to
  513  the direction and supervision of an appointing authority does
  514  not constitute delegation or transfer of statutory authority
  515  assigned to the appointee.
  516         Section 8. Subsection (3) of section 120.52, Florida
  517  Statutes, is amended to read:
  518         120.52 Definitions.—As used in this act:
  519         (3) “Agency head” means the person or collegial body in a
  520  department or other governmental unit statutorily responsible
  521  for final agency action. An agency head appointed by and serving
  522  at the pleasure of an appointing authority remains subject to
  523  the direction and supervision of the appointing authority, but
  524  actions taken by the agency head as authorized by statute are
  525  official acts.
  526         Section 9. Paragraphs (j) and (k) of subsection (5) of
  527  section 11.242, Florida Statutes, are redesignated as paragraphs
  528  (k) and (l), respectively, and a new paragraph (j) is added to
  529  that subsection to read:
  530         11.242 Powers, duties, and functions as to statutory
  531  revision.—The powers, duties, and functions of the Office of
  532  Legislative Services in the operation and maintenance of a
  533  statutory revision program shall be as follows:
  534         (5) In carrying on the work of statutory revision and in
  535  preparing the Florida Statutes for publication:
  536         (j) All statutes and laws, or parts thereof, which grant
  537  duplicative, redundant, or unused rulemaking authority, shall be
  538  omitted through the process of reviser’s bills duly enacted by
  539  the Legislature. Rulemaking authority shall be deemed unused if
  540  the provision has been in effect for more than 5 years and no
  541  rule has been promulgated in reliance thereon.
  542         Section 10. Subsection (3) of section 14.34, Florida
  543  Statutes, is repealed.
  544         Section 11. Subsection (7) of section 15.16, Florida
  545  Statutes, is amended to read:
  546         15.16 Reproduction of records; admissibility in evidence;
  547  electronic receipt and transmission of records; certification;
  548  acknowledgment.—
  549         (7) The Secretary of State may issue apostilles conforming
  550  to the requirements of the international treaty known as the
  551  Hague Convention of 1961 and may charge a fee for the issuance
  552  of apostilles not to exceed $10 per apostille. The Secretary of
  553  State has the sole authority in this state to establish, in
  554  accordance with the laws of the United States, the requirements
  555  and procedures for the issuance of apostilles. The Department of
  556  State may adopt rules to implement this subsection.
  557         Section 12. Subsection (7) of section 15.18, Florida
  558  Statutes, is repealed.
  559         Section 13. Paragraph (a) of subsection (3) of section
  560  16.60, Florida Statutes, is amended to read:
  561         16.60 Public records mediation program within the Office of
  562  the Attorney General; creation; duties.—
  563         (3) The Office of the Attorney General shall:
  564         (a) Employ one or more mediators to mediate disputes
  565  involving access to public records. A person may not be employed
  566  by the department as a mediator unless that person is a member
  567  in good standing of The Florida Bar. The Office of the Attorney
  568  General may adopt rules of procedure to govern its mediation
  569  proceedings.
  570         Section 14. Subsection (2) of section 17.0416, Florida
  571  Statutes, is repealed.
  572         Section 15. Subsection (3) of section 17.59, Florida
  573  Statutes, is repealed.
  574         Section 16. Section 25.371, Florida Statutes, is repealed.
  575         Section 17. Section 28.43, Florida Statutes, is repealed.
  576         Section 18. Section 35.07, Florida Statutes, is repealed.
  577         Section 19. Subsection (11) of section 39.001, Florida
  578  Statutes, is repealed.
  579         Section 20. Subsection (2) of section 39.0137, Florida
  580  Statutes, is amended to read:
  581         39.0137 Federal law; rulemaking authority.—
  582         (2) The department shall adopt rules no later than July 1,
  583  2007, to ensure that the provisions of these federal laws are
  584  enforced in this state. The department is encouraged to enter
  585  into agreements with recognized American Indian tribes in order
  586  to facilitate the implementation of the Indian Child Welfare
  587  Act.
  588         Section 21. Subsection (1) of section 39.824, Florida
  589  Statutes, is repealed.
  590         Section 22. Subsection (3) of section 63.167, Florida
  591  Statutes, is amended to read:
  592         63.167 State adoption information center.—
  593         (3) The department shall ensure equitable distribution of
  594  referrals to licensed child-placing agencies, and may promulgate
  595  rules as necessary for the establishment and operation of the
  596  state adoption information center.
  597         Section 23. Section 88.9051, Florida Statutes, is repealed.
  598         Section 24. Section 97.026, Florida Statutes, is amended to
  599  read:
  600         97.026 Forms to be available in alternative formats and via
  601  the Internet.—It is the intent of the Legislature that all forms
  602  required to be used in chapters 97-106 shall be made available
  603  upon request, in alternative formats. Such forms shall include
  604  absentee ballots as alternative formats for such ballots become
  605  available and the Division of Elections is able to certify
  606  systems that provide them. The department may, pursuant to ss.
  607  120.536(1) and 120.54, adopt rules to administer this section.
  608  Whenever possible, such forms, with the exception of absentee
  609  ballots, shall be made available by the Department of State via
  610  the Internet. Sections that contain such forms include, but are
  611  not limited to, ss. 97.051, 97.052, 97.053, 97.057, 97.058,
  612  97.0583, 97.071, 97.073, 97.1031, 98.075, 99.021, 100.361,
  613  100.371, 101.045, 101.171, 101.20, 101.6103, 101.62, 101.64,
  614  101.65, 101.657, 105.031, 106.023, and 106.087.
  615         Section 25. Section 97.0555, Florida Statutes, is amended
  616  to read:
  617         97.0555 Late registration.—An individual or accompanying
  618  family member who has been discharged or separated from the
  619  uniformed services or the Merchant Marine, or from employment
  620  outside the territorial limits of the United States, after the
  621  book-closing date for an election pursuant to s. 97.055 and who
  622  is otherwise qualified may register to vote in such election
  623  until 5 p.m. on the Friday before that election in the office of
  624  the supervisor of elections. Such persons must produce
  625  sufficient documentation showing evidence of qualifying for late
  626  registration pursuant to this section. The Department of State
  627  shall adopt rules specifying documentation that is sufficient to
  628  determine eligibility.
  629         Section 26. Subsection (1) of section 97.061, Florida
  630  Statutes, is amended to read:
  631         97.061 Special registration for electors requiring
  632  assistance.—
  633         (1) Any person who is eligible to register and who is
  634  unable to read or write or who, because of some disability,
  635  needs assistance in voting shall upon that person’s request be
  636  registered under the procedure prescribed by this section and
  637  shall be entitled to receive assistance at the polls under the
  638  conditions prescribed by this section. The department may adopt
  639  rules to administer this section.
  640         Section 27. Subsection (3) of section 101.56062, Florida
  641  Statutes, is repealed.
  642         Section 28. Subsection (5) of section 103.101, Florida
  643  Statutes, is amended to read:
  644         103.101 Presidential preference primary.—
  645         (5) The state executive committee of each party, by rule
  646  adopted at least 60 days prior to the presidential preference
  647  primary election, shall determine the number, and establish
  648  procedures to be followed in the selection, of delegates and
  649  delegate alternates from among each candidate’s supporters. A
  650  copy of any rule adopted by the executive committee shall be
  651  filed with the Department of State within 7 days after its
  652  adoption and shall become a public record. The Department of
  653  State shall review the procedures and shall notify the state
  654  executive committee of each political party of any ballot
  655  limitations. The Department of State may promulgate rules for
  656  the orderly conduct of the presidential preference primary
  657  ballot.
  658         Section 29. Section 106.165, Florida Statutes, is amended
  659  to read:
  660         106.165 Use of closed captioning and descriptive narrative
  661  in all television broadcasts.—Each candidate, political party,
  662  affiliated party committee, and political committee must use
  663  closed captioning and descriptive narrative in all television
  664  broadcasts regulated by the Federal Communications Commission
  665  that are on behalf of, or sponsored by, a candidate, political
  666  party, affiliated party committee, or political committee or
  667  must file a written statement with the qualifying officer
  668  setting forth the reasons for not doing so. Failure to file this
  669  statement with the appropriate qualifying officer constitutes a
  670  violation of the Florida Election Code and is under the
  671  jurisdiction of the Florida Elections Commission. The Department
  672  of State may adopt rules in accordance with s. 120.54 which are
  673  necessary to administer this section.
  674         Section 30. Section 110.1055, Florida Statutes, is amended
  675  to read:
  676         110.1055 Rules and rulemaking authority.—The Department of
  677  Management Services shall have authority to adopt rules as
  678  necessary to effectuate the provisions of this chapter, as
  679  amended by this act, and in accordance with the authority
  680  granted to the department in this chapter. All existing rules
  681  relating to this chapter are statutorily repealed January 1,
  682  2002, unless otherwise readopted.
  683         Section 31. Subsection (5) of section 110.1099, Florida
  684  Statutes, is repealed.
  685         Section 32. Subsection (7) of section 110.1228, Florida
  686  Statutes, is repealed.
  687         Section 33. Subsection (2) of section 110.12301, Florida
  688  Statutes, is amended to read:
  689         110.12301 Competitive procurement of postpayment claims
  690  review services.—The Division of State Group Insurance is
  691  directed to competitively procure:
  692         (2) A contingency-based contract for dependent eligibility
  693  verification services for the state group insurance program;
  694  however, compensation under the contract may not exceed
  695  historical claim costs for the prior 12 months for the dependent
  696  populations disenrolled as a result of the vendor’s services.
  697  The division may establish a 3-month grace period and hold
  698  subscribers harmless for past claims of ineligible dependents.
  699  The Department of Management Services shall submit budget
  700  amendments pursuant to chapter 216 in order to obtain budget
  701  authority necessary to expend funds from the State Employees’
  702  Group Health Self-Insurance Trust Fund for payments to the
  703  vendor as provided in the contract. The Department of Management
  704  Services shall adopt rules providing a process for verifying
  705  dependent eligibility.
  706         Section 34. Subsection (4) of section 112.1915, Florida
  707  Statutes, is repealed.
  708         Section 35. Section 118.12, Florida Statutes, is amended to
  709  read:
  710         118.12 Certification of civil-law notary’s authority;
  711  apostilles.—If certification of a civil-law notary’s authority
  712  is necessary for a particular document or transaction, it must
  713  be obtained from the Secretary of State. Upon the receipt of a
  714  written request from a civil-law notary and the fee prescribed
  715  by the Secretary of State, the Secretary of State shall issue a
  716  certification of the civil-law notary’s authority, in a form
  717  prescribed by the Secretary of State, which shall include a
  718  statement explaining the legal qualifications and authority of a
  719  civil-law notary in this state. The fee prescribed for the
  720  issuance of the certification under this section or an apostille
  721  under s. 15.16 may not exceed $10 per document. The Department
  722  of State may adopt rules to implement this section.
  723         Section 36. Subsection (1) of section 121.085, Florida
  724  Statutes, is repealed.
  725         Section 37. Paragraph (b) of subsection (4) of section
  726  121.1001, Florida Statutes, is repealed.
  727         Section 38. Subsection (3) of section 121.4503, Florida
  728  Statutes, is repealed.
  729         Section 39. Section 121.5911, Florida Statutes, is amended
  730  to read:
  731         121.5911 Disability retirement program; qualified status;
  732  rulemaking authority.—It is the intent of the Legislature that
  733  the disability retirement program for members of the Florida
  734  Retirement System Investment Plan meet all applicable
  735  requirements of federal law for a qualified plan. The department
  736  shall seek a private letter ruling from the Internal Revenue
  737  Service on the disability retirement program. Consistent with
  738  the private letter ruling, the department shall adopt rules
  739  necessary to maintain the qualified status of the disability
  740  retirement program and the Florida Retirement System Pension
  741  Plan.
  742         Section 40. Subsection (4) of section 125.902, Florida
  743  Statutes, is repealed.
  744         Section 41. Subsection (4) of section 154.503, Florida
  745  Statutes, is repealed.
  746         Section 42. Paragraph (a) of subsection (2) of section
  747  159.8081, Florida Statutes, is amended to read:
  748         159.8081 Manufacturing facility bond pool.—
  749         (2)(a) The first 75 percent of this pool shall be available
  750  on a first come, first served basis, except that 15 percent of
  751  the state volume limitation allocated to this pool shall be
  752  available as provided in paragraph (b). Before issuing any
  753  written confirmations for the remaining 25 percent of this pool,
  754  the executive director shall forward all notices of intent to
  755  issue which are received by the division for manufacturing
  756  facility projects to the Department of Economic Opportunity. The
  757  Department of Economic Opportunity shall decide, after receipt
  758  of the notices of intent to issue, which notices will receive
  759  written confirmations. Such decision shall be communicated in
  760  writing by the Department of Economic Opportunity to the
  761  executive director within 10 days of receipt of such notices of
  762  intent to issue. The Department of Economic Opportunity may
  763  develop rules to ensure that allocation of the remaining 25
  764  percent is consistent with the state’s economic development
  765  policy.
  766         Section 43. Section 159.8083, Florida Statutes, is amended
  767  to read:
  768         159.8083 Florida First Business allocation pool.—The
  769  Florida First Business allocation pool is hereby established.
  770  The Florida First Business allocation pool shall be available
  771  solely to provide written confirmation for private activity
  772  bonds to finance Florida First Business projects certified by
  773  the Department of Economic Opportunity as eligible to receive a
  774  written confirmation. Allocations from such pool shall be
  775  awarded statewide pursuant to procedures specified in s.
  776  159.805, except that the provisions of s. 159.805(2), (3), and
  777  (6) do not apply. Florida First Business projects that are
  778  eligible for a carryforward do not lose their allocation
  779  pursuant to s. 159.809(3) on October 1, or pursuant to s.
  780  159.809(4) on November 16, if they have applied for and have
  781  been granted a carryforward by the division pursuant to s.
  782  159.81(1). In issuing written confirmations of allocations for
  783  Florida First Business projects, the division shall use the
  784  Florida First Business allocation pool. If allocation is not
  785  available from the Florida First Business allocation pool, the
  786  division shall issue written confirmations of allocations for
  787  Florida First Business projects pursuant to s. 159.806 or s.
  788  159.807, in such order. For the purpose of determining priority
  789  within a regional allocation pool or the state allocation pool,
  790  notices of intent to issue bonds for Florida First Business
  791  projects to be issued from a regional allocation pool or the
  792  state allocation pool shall be considered to have been received
  793  by the division at the time it is determined by the division
  794  that the Florida First Business allocation pool is unavailable
  795  to issue confirmation for such Florida First Business project.
  796  If the total amount requested in notices of intent to issue
  797  private activity bonds for Florida First Business projects
  798  exceeds the total amount of the Florida First Business
  799  allocation pool, the director shall forward all timely notices
  800  of intent to issue, which are received by the division for such
  801  projects, to the Department of Economic Opportunity, which shall
  802  render a decision as to which notices of intent to issue are to
  803  receive written confirmations. The Department of Economic
  804  Opportunity, in consultation with the division, shall develop
  805  rules to ensure that the allocation provided in such pool is
  806  available solely to provide written confirmations for private
  807  activity bonds to finance Florida First Business projects and
  808  that such projects are feasible and financially solvent.
  809         Section 44. Subsection (3) of section 159.825, Florida
  810  Statutes, is repealed.
  811         Section 45. Section 161.75, Florida Statutes, is repealed.
  812         Section 46. Section 163.462, Florida Statutes, is repealed.
  813         Section 47. Subsection (6) of section 163.517, Florida
  814  Statutes, is repealed.
  815         Section 48. Subsection (2) of section 175.341, Florida
  816  Statutes, is repealed.
  817         Section 49. Paragraph (e) of subsection (2) of section
  818  177.504, Florida Statutes, is repealed.
  819         Section 50. Subsection (2) of section 185.23, Florida
  820  Statutes, is repealed.
  821         Section 51. Subsection (2) of section 255.25001, Florida
  822  Statutes, is repealed.
  823         Section 52. Subsection (7) of section 257.34, Florida
  824  Statutes, is repealed.
  825         Section 53. Subsection (6) of section 364.0135, Florida
  826  Statutes, is repealed.
  827         Section 54. Section 366.85, Florida Statutes, is amended to
  828  read:
  829         366.85 Responsibilities of Division of Consumer Services.
  830  The Division of Consumer Services of the Department of
  831  Agriculture and Consumer Services shall be the agency
  832  responsible for consumer conciliatory conferences, if such
  833  conferences are required pursuant to federal law. The division
  834  shall also be the agency responsible for preparing lists of
  835  sources for energy conservation products or services and of
  836  financial institutions offering energy conservation loans, if
  837  such lists are required pursuant to federal law. Notwithstanding
  838  any provision of federal law to the contrary, the division shall
  839  not require any manufacturer’s warranty exceeding 1 year in
  840  order for a source of conservation products or services to be
  841  included on the appropriate list. The lists shall be prepared
  842  for the service area of each utility and shall be furnished to
  843  each utility for distribution to its customers. The division
  844  shall update the lists on a systematic basis and shall remove
  845  from any list any person who has been disciplined by any state
  846  agency or who has otherwise exhibited a pattern of
  847  unsatisfactory work and any person who requests removal from
  848  such lists. The division is authorized to adopt rules to
  849  implement the provisions of this section.
  850         Section 55. Section 409.5092, Florida Statutes, is
  851  repealed.
  852         Section 56. Subsections (1) and (3) of section 501.142,
  853  Florida Statutes, are amended to read:
  854         501.142 Retail sales establishments; preemption; notice of
  855  refund policy; exceptions; penalty.—
  856         (1) The regulation of refunds is preempted to the
  857  Department of Agriculture and Consumer Services notwithstanding
  858  any other law or local ordinance to the contrary. Every retail
  859  sales establishment offering goods for sale to the general
  860  public that offers no cash refund, credit refund, or exchange of
  861  merchandise must post a sign so stating at the point of sale.
  862  Failure of a retail sales establishment to exhibit a “no refund”
  863  sign under such circumstances at the point of sale shall mean
  864  that a refund or exchange policy exists, and the policy shall be
  865  presented in writing to the consumer upon request. Any retail
  866  establishment failing to comply with the provisions of this
  867  section shall grant to the consumer, upon request and proof of
  868  purchase, a refund on the merchandise, within 7 days of the date
  869  of purchase, provided the merchandise is unused and in the
  870  original carton, if one was furnished. Nothing herein shall
  871  prohibit a retail sales establishment from having a refund
  872  policy which exceeds the number of days specified herein. The
  873  department may adopt rules pursuant to ss. 120.536(1) and 120.54
  874  to enforce the provisions of this section. However, this
  875  subsection does not prohibit a local government from enforcing
  876  the provisions established by this section or department rule.
  877         (3) The department may enter an order doing one or more of
  878  the following if the department finds that a person has violated
  879  or is operating in violation of any of the provisions of this
  880  section or the rules or orders issued under this section:
  881         (a) Issue a notice of noncompliance pursuant to s. 120.695.
  882         (a)(b) Impose an administrative fine not to exceed $100 for
  883  each violation.
  884         (b)(c) Direct the person to cease and desist specified
  885  activities.
  886         Section 57. Paragraph (b) of subsection (15) of section
  887  985.682, Florida Statutes, is amended to read:
  888         985.682 Siting of facilities; study; criteria.—
  889         (15)
  890         (b) Notwithstanding s. ss. 255.25(1)(b) and 255.25001(2),
  891  the department may enter into lease-purchase agreements to
  892  provide juvenile justice facilities for the housing of committed
  893  youths contingent upon available funds. The facilities provided
  894  through such agreements shall meet the program plan and
  895  specifications of the department. The department may enter into
  896  such lease agreements with private corporations and other
  897  governmental entities. However, notwithstanding the provisions
  898  of s. 255.25(3)(a), no such lease agreement may be entered into
  899  except upon advertisement for the receipt of competitive bids
  900  and award to the lowest and best bidder except when contracting
  901  with other governmental entities.
  902         Section 58. This act shall take effect July 1, 2012.