Florida Senate - 2013                      CS for CS for SB 1494
       
       
       
       By the Committees on Rules; and Judiciary; and Senator Thrasher
       
       
       
       
       595-04599-13                                          20131494c2
    1                        A bill to be entitled                      
    2         An act relating to the Florida False Claims Act;
    3         amending s. 68.081, F.S.; revising a cross-reference;
    4         deleting a statement of purpose; amending s. 68.082,
    5         F.S.; deleting, revising, and providing definitions;
    6         revising conditions under which a person is liable for
    7         a specified civil penalty; amending s. 68.083, F.S.;
    8         revising terminology; revising language concerning who
    9         may intervene or bring a related action after a person
   10         files an action under the act; creating s. 68.0831,
   11         F.S.; defining the term “department”; authorizing the
   12         Department of Legal Affairs to issue subpoenas for
   13         specified purposes before the institution of civil
   14         proceedings; providing requirements for the content
   15         and service of subpoenas; providing that such
   16         subpoenas may not require specified protected
   17         documents or testimony; specifying that the
   18         department’s power to require the appearance of
   19         witnesses or production of documents or other tangible
   20         evidence located outside the state is unaffected;
   21         providing for petitions to modify or set aside
   22         subpoenas; providing for orders to comply with
   23         subpoenas; providing for the examination of witnesses;
   24         providing for review of transcripts of testimony;
   25         authorizing the department to stipulate to protective
   26         orders of submitted documents and information;
   27         providing for natural persons who decline to testify
   28         or produce documents after asserting a privilege
   29         against self-incrimination to be ordered to testify or
   30         produce documents; providing for contempt to comply
   31         with such orders; providing for examination of
   32         testimony, answers, or materials by the person who
   33         produced such materials or answers; providing
   34         applicability; prohibiting a person knowing or having
   35         reason to believe that a subpoena is pending from
   36         tampering with evidence; providing civil penalties;
   37         amending s. 68.084, F.S.; clarifying that the
   38         department may dismiss actions at any point; revising
   39         language concerning the costs to the department for
   40         continuing to receive pleadings and transcripts of an
   41         action after it has elected to withdraw; providing
   42         that the state may elect to pursue available
   43         alternative remedies, including administrative
   44         proceedings; specifying what constitutes a final
   45         finding or conclusion in an alternative proceeding
   46         that is binding on all parties to an action under the
   47         act; amending s. 68.085, F.S.; providing for
   48         successful plaintiffs to receive, in addition to a
   49         portion of the amount recovered, awards of expenses
   50         and attorney fees and costs; amending s. 68.086, F.S.;
   51         deleting references to awards of attorney fees to
   52         successful plaintiffs; revising provisions relating to
   53         awards of attorney fees to the department; amending s.
   54         68.087, F.S.; revising provisions relating to
   55         dismissal of an action if substantially the same
   56         allegations or transactions as alleged in the action
   57         were publicly disclosed; amending s. 68.089, F.S.;
   58         providing for the treatment for statutes of
   59         limitations purposes of pleadings filed in
   60         interventions by the department; amending s. 68.09,
   61         F.S.; providing for estoppel as to certain matters
   62         following a final judgment or decree rendered in favor
   63         of the state or the Federal Government in certain
   64         criminal proceedings; providing an effective date.
   65  
   66  Be It Enacted by the Legislature of the State of Florida:
   67  
   68         Section 1. Section 68.081, Florida Statutes, is amended to
   69  read:
   70         68.081 Florida False Claims Act; short title; purpose.—
   71         (1) Sections 68.081-68.092 68.081-68.09 may be cited as the
   72  “Florida False Claims Act.”
   73         (2) The purpose of the Florida False Claims Act is to deter
   74  persons from knowingly causing or assisting in causing state
   75  government to pay claims that are false or fraudulent, and to
   76  provide remedies for obtaining treble damages and civil
   77  penalties for state government when money is obtained from state
   78  government by reason of a false or fraudulent claim.
   79         Section 2. Section 68.082, Florida Statutes, is amended to
   80  read:
   81         68.082 False claims against the state; definitions;
   82  liability.—
   83         (1) As used in this section, the term:
   84         (a) “Agency” means any official, officer, commission,
   85  board, authority, council, committee, or department of the
   86  executive branch of state government.
   87         (a)(b) “Claim” means includes any written or electronically
   88  submitted request or demand, whether under a contract or
   89  otherwise, for money or, property, regardless of whether the
   90  state has title to the money or property, that: or services,
   91  which
   92         1. Is presented made to any employee, officer, or agent of
   93  the state; an agency, or
   94         2. Is made to a any contractor, grantee, or other recipient
   95  if the state agency provides or has provided any portion of the
   96  money or property requested or demanded, or if the state agency
   97  will reimburse the contractor, grantee, or other recipient for
   98  any portion of the money or property that is requested or
   99  demanded.
  100         (c) “Knowing” or “knowingly” means, with respect to
  101  information, that a person:
  102         1. Has actual knowledge of the information;
  103         2. Acts in deliberate ignorance of the truth or falsity of
  104  the information; or
  105         3. Acts in reckless disregard of the truth or falsity of
  106  the information.
  107  
  108  No proof of specific intent to defraud is required. Innocent
  109  mistake shall be a defense to an action under this act.
  110         (d) “Material” means having a natural tendency to
  111  influence, or be capable of influencing, the payment or receipt
  112  of money or property.
  113         (e) “Obligation” means an established duty, fixed or
  114  otherwise, arising from an express or implied contractual,
  115  grantor-grantee, or licensor-licensee relationship, from a fee
  116  based or similar relationship, from statute or regulation, or
  117  from the retention of any overpayment.
  118         (f)(d) “State government” means the government of the state
  119  or any department, division, bureau, commission, regional
  120  planning agency, board, district, authority, agency, or other
  121  instrumentality of the state.
  122         (b)(e) “Department” means the Department of Legal Affairs,
  123  except as specifically provided in ss. 68.083 and 68.084.
  124         (2) Any person who:
  125         (a) Knowingly presents or causes to be presented to an
  126  officer or employee of an agency a false or fraudulent claim for
  127  payment or approval;
  128         (b) Knowingly makes, uses, or causes to be made or used a
  129  false record or statement material to get a false or fraudulent
  130  claim paid or approved by an agency;
  131         (c) Conspires to commit a violation of this subsection
  132  submit a false or fraudulent claim to an agency or to deceive an
  133  agency for the purpose of getting a false or fraudulent claim
  134  allowed or paid;
  135         (d) Has possession, custody, or control of property or
  136  money used or to be used by the state an agency and, intending
  137  to deceive the agency or knowingly conceal the property,
  138  delivers or causes to be delivered less property than all of
  139  that money or property the amount for which the person receives
  140  a certificate or receipt;
  141         (e) Is authorized to make or deliver a document certifying
  142  receipt of property used or to be used by the state an agency
  143  and, intending to defraud deceive the state agency, makes or
  144  delivers the receipt without knowing that the information on the
  145  receipt is true;
  146         (f) Knowingly buys or receives, as a pledge of an
  147  obligation or a debt, public property from an officer or
  148  employee of the state an agency who may not sell or pledge the
  149  property lawfully; or
  150         (g) Knowingly makes, uses, or causes to be made or used a
  151  false record or statement material to an obligation to pay or
  152  transmit money or property to the state, or knowingly conceals
  153  or knowingly and improperly avoids or decreases to conceal,
  154  avoid, or decrease an obligation to pay or transmit money or
  155  property to the state an agency,
  156  
  157  is liable to the state for a civil penalty of not less than
  158  $5,500 and not more than $11,000 and for treble the amount of
  159  damages the state agency sustains because of the act or omission
  160  of that person.
  161         (3) The court may reduce the treble damages authorized
  162  under subsection (2) if the court finds one or more of the
  163  following specific extenuating circumstances:
  164         (a) The person committing the violation furnished the
  165  department officials of the agency responsible for investigating
  166  false claims violations with all information known to the person
  167  about the violation within 30 days after the date on which the
  168  person first obtained the information;
  169         (b) The person fully cooperated with any official
  170  investigation of the violation; or
  171         (c) At the time the person furnished the department agency
  172  with the information about the violation, no criminal
  173  prosecution, civil action, or administrative action had
  174  commenced under this section with respect to the violation, and
  175  the person did not have actual knowledge of the existence of an
  176  investigation into the violation;
  177  
  178  in which case the court shall award no less than 2 times the
  179  amount of damages sustained by the state agency because of the
  180  act of the person. The court shall set forth in a written order
  181  its findings and basis for reducing the treble damages award.
  182         Section 3. Subsection (7) of section 68.083, Florida
  183  Statutes, is amended to read:
  184         68.083 Civil actions for false claims.—
  185         (7) When a person files an action under this section, no
  186  person other than the department on behalf of the state may
  187  intervene or bring a related an action under this act based on
  188  the facts underlying the pending action.
  189         Section 4. Effective on the same date that SB 1496 or
  190  similar legislation takes effect, if such legislation is adopted
  191  in the same legislative session or an extension thereof and
  192  becomes a law, section 68.0831, Florida Statutes, is created to
  193  read:
  194         68.0831 Subpoena.—
  195         (1) As used in this section, the term “department” means
  196  the Department of Legal Affairs.
  197         (2) Whenever the department has reason to believe that any
  198  person may be in possession, custody, or control of any
  199  documentary material or may have any information, which
  200  documentary material or information is relevant to a civil
  201  investigation authorized by s. 68.083, the department may,
  202  before the institution of a civil proceeding thereon, issue in
  203  writing and cause to be served upon the person a subpoena
  204  requiring the person to:
  205         (a) Produce such documentary material for inspection and
  206  copying or reproduction;
  207         (b) Answer, under oath and in writing, written
  208  interrogatories;
  209         (c) Give sworn oral testimony concerning the documentary
  210  material or information; or
  211         (d) Furnish any combination of such material, answers, or
  212  testimony.
  213         (3) The subpoena shall:
  214         (a) Be served upon the person in the manner required for
  215  service of process in this state or by certified mail showing
  216  receipt by the addressee or by the authorized agent of the
  217  addressee.
  218         (b) State the nature of the conduct that constitutes the
  219  violation of this act and that is alleged to have occurred or to
  220  be imminent.
  221         (c) Describe the class or classes of documentary material
  222  to be produced thereunder with such definiteness and certainty
  223  as to permit such materials to be reasonably identified.
  224         (d) Prescribe a date and time at which the person must
  225  appear to testify, under oath or affirmation, or by which the
  226  person must answer written interrogatories or produce the
  227  documentary material for inspection or copying; however, such
  228  date shall not be earlier than 30 days after the date of service
  229  of the subpoena.
  230         (e) Specify a place for the taking of testimony or for the
  231  submission of answers to interrogatories and identify the person
  232  who is to take custody of any documentary material. Inspection
  233  and copying of documentary material shall be carried out at the
  234  place where the documentary material is located or at such other
  235  place as may be thereafter agreed to by the person and such
  236  designated custodian. Upon written agreement between the person
  237  and the designated custodian, copies may be substituted for
  238  original documents.
  239         (4) Such subpoena may not require the production of any
  240  documentary material, the submission of any answers to written
  241  interrogatories, or the giving of any oral testimony if such
  242  material, answers, or testimony would be protected from
  243  disclosure under:
  244         (a) The standards applicable to subpoenas or subpoenas
  245  duces tecum issued by a court of this state in aid of a grand
  246  jury investigation; or
  247         (b) The standards applicable to a discovery request under
  248  the Florida Rules of Civil Procedure, to the extent that the
  249  application of such standards to any such subpoena is
  250  appropriate and consistent with the provisions and purposes of
  251  this act.
  252         (5) This section does not limit the power of the department
  253  to require the appearance of witnesses or production of
  254  documents or other tangible evidence located outside the state.
  255         (6) Within 30 days after the service of a subpoena upon any
  256  person or at any time before the return date specified therein,
  257  whichever period is longer, the person served may file, and
  258  serve on the department, a petition for an order of the court
  259  modifying or setting aside the subpoena. Any such petition shall
  260  be filed in the circuit court of the Second Judicial Circuit in
  261  and for Leon County. The time allowed for compliance in whole or
  262  in part with the subpoena as deemed proper and ordered by the
  263  court shall not run while the petition is pending before the
  264  court. The petition shall specify each ground upon which the
  265  petitioner relies in seeking relief and may be based upon the
  266  failure of the subpoena to comply with this section or upon any
  267  constitutional or other legal right or privilege of such person.
  268         (7) In case of the failure of any person to comply in whole
  269  or in part with a subpoena and when such person has not filed a
  270  petition under subsection (6), the circuit court of the Second
  271  Judicial Circuit in and for Leon County, upon application of the
  272  department, may issue an order requiring compliance. The failure
  273  to obey the order of the court shall be punishable as a contempt
  274  of court.
  275         (8) The examination of all witnesses under this section
  276  shall be conducted by the department before an officer
  277  authorized to administer oaths in this state. The testimony
  278  shall be taken stenographically or by a sound-recording device.
  279  Any person compelled to appear under a subpoena for oral
  280  testimony pursuant to this section may be accompanied,
  281  represented, and advised by counsel. Counsel may advise such
  282  person, in confidence, either upon the request of such person or
  283  upon counsel’s own initiative, with respect to any question
  284  asked of such person. Such person or counsel may object on the
  285  record to any question, in whole or in part, and shall briefly
  286  state for the record the reason for any such objection. If such
  287  person refuses to answer any question, the person conducting the
  288  examination may petition the circuit court as provided by
  289  subsection (11).
  290         (9) When the testimony is fully transcribed, the person
  291  conducting the deposition shall afford the witness, and counsel,
  292  if any, a reasonable opportunity to examine the transcript, and
  293  the transcript shall be read to or by the witness, unless such
  294  examination and reading is waived by the witness. Any changes in
  295  form or substance that the witness desires to make shall be
  296  entered and identified upon the transcript by the officer or the
  297  department, with a statement of the reasons given by the witness
  298  for making such changes. The transcript shall then be signed by
  299  the witness unless the witness waives the signing in writing, is
  300  ill, cannot be found, or refuses to sign. If the transcript is
  301  not signed by the witness within 30 days after his or her being
  302  afforded a reasonable opportunity to examine it, the person
  303  conducting the examination shall sign it and state on the record
  304  the fact of the waiver, illness, absence, or refusal to sign,
  305  together with the reason, if any, given therefor. Any person
  306  required to testify or to submit documentary evidence is
  307  entitled, on payment of reasonable costs, to procure a copy of
  308  any document produced by such person and of his or her own
  309  testimony as stenographically reported or, in the case of a
  310  deposition, as reduced to writing by or under the direction of
  311  the person taking the deposition.
  312         (10) The department shall have the authority to stipulate
  313  to protective orders with respect to documents and information
  314  submitted in response to a subpoena under this section.
  315         (11) The department may request that any natural person who
  316  refuses to comply with this section on the ground that the
  317  testimony or documents may incriminate him or her be ordered by
  318  the circuit court to provide the testimony or the documents.
  319  Except in a prosecution for perjury, a natural person who
  320  complies with a court order to provide testimony or documents
  321  after asserting a privilege against self-incrimination to which
  322  he or she is entitled by law may not be subject to a criminal
  323  proceeding with respect to the transaction to which he or she is
  324  required to testify or produce documents. Any natural person who
  325  fails to comply with such a court order to testify or produce
  326  documents may be adjudged in contempt and imprisoned until the
  327  time the person purges himself or herself of the contempt.
  328         (12) While in the possession of the custodian, documentary
  329  material, answers to interrogatories, and transcripts of oral
  330  testimony shall be available, under such reasonable terms and
  331  conditions as the department shall prescribe, for examination by
  332  the person who produced such materials or answers or that
  333  person’s duly authorized representative.
  334         (13) This section does not impair the authority of the
  335  department to:
  336         (a) Institute a civil proceeding under s. 68.083;
  337         (b) Invoke the power of a court to compel the production of
  338  evidence before a grand jury; or
  339         (c) Maintain the confidential and exempt status of the
  340  complaint and any other information as provided in s. 68.083(8).
  341         (14)(a) A person who knows or has reason to believe that a
  342  subpoena pursuant to this section is pending shall not:
  343         1. Alter, destroy, conceal, or remove any record, document,
  344  or thing with the purpose of impairing its verity or
  345  availability in such proceeding or investigation; or
  346         2. Make, present, or use any record, document, or thing
  347  knowing it to be false.
  348         (b) Any natural person who violates this subsection is
  349  subject to a civil penalty of not more than $100,000, reasonable
  350  attorney fees, and costs. Any other person who violates this
  351  subsection is subject to a civil penalty of not more than $1
  352  million, reasonable attorney fees, and costs.
  353         Section 5. Subsections (2) through (5) of section 68.084,
  354  Florida Statutes, are amended to read:
  355         68.084 Rights of the parties in civil actions.—
  356         (2)(a) The department may at any point voluntarily dismiss
  357  the action notwithstanding the objections of the person
  358  initiating the action.
  359         (b) Subject to s. 17.04, nothing in this act shall be
  360  construed to limit the authority of the department or the qui
  361  tam plaintiff to compromise a claim brought in a complaint filed
  362  under this act if the court determines, after a hearing, that
  363  the proposed settlement is fair, adequate, and reasonable under
  364  all the circumstances.
  365         (c) Upon a showing by the department that unrestricted
  366  participation during the course of the litigation by the person
  367  initiating the action would interfere with or unduly delay the
  368  department’s prosecution of the case, or would be repetitious,
  369  irrelevant, or for purposes of harassment, the court may, in its
  370  discretion, impose limitations on the person’s participation,
  371  including, but not limited to:
  372         1. Limiting the number of witnesses the person may call;
  373         2. Limiting the length of the testimony of the person’s
  374  witnesses;
  375         3. Limiting the person’s cross-examination of witnesses; or
  376         4. Otherwise limiting the participation by the person in
  377  the litigation.
  378         (d) Upon a showing by the defendant that unrestricted
  379  participation during the course of the litigation by the person
  380  initiating the action would be for purposes of harassment or
  381  would cause the defendant undue burden or unnecessary expense,
  382  the court may limit the participation by the person in the
  383  litigation.
  384         (3) If the department elects not to proceed with the
  385  action, the person who initiated the action has the right to
  386  conduct the action. If the Attorney General, as head of the
  387  department, or the Chief Financial Officer, as head of the
  388  Department of Financial Services, so requests, it shall be
  389  served, at the requesting department’s expense, with copies of
  390  all pleadings and motions filed in the action along with and
  391  copies of all deposition transcripts at the requesting
  392  department’s expense. When a person proceeds with the action,
  393  the court, without limiting the rights of the person initiating
  394  the action, may nevertheless permit the department to intervene
  395  and take over the action on behalf of the state at a later date
  396  upon showing of good cause.
  397         (4) Regardless of whether or not the department proceeds
  398  with the action, upon a showing by the department that certain
  399  actions of discovery by the person initiating the action would
  400  interfere with an investigation by the state government or the
  401  prosecution of a criminal or civil matter arising out of the
  402  same facts, the court may stay such discovery for a period of
  403  not more than 60 days. Such a showing shall be conducted in
  404  camera. The court may extend the 60-day period upon a further
  405  showing in camera by the department that the criminal or civil
  406  investigation or proceeding has been pursued with reasonable
  407  diligence and any proposed discovery in the civil action will
  408  interfere with an ongoing criminal or civil investigation or
  409  proceeding.
  410         (5) Notwithstanding paragraph (2)(b), the state may elect
  411  to pursue its claim through any available alternate remedy,
  412  including any administrative proceeding to determine a civil
  413  money penalty. If any such alternate remedy is pursued in
  414  another proceeding, the person initiating the action shall have
  415  the same rights in such proceeding as the person would have had
  416  if the action had continued under this section The application
  417  of one civil remedy under this act does not preclude the
  418  application of any other remedy, civil or criminal, under this
  419  act or any other provision of law. Civil remedies under this act
  420  are supplemental, not mutually exclusive. Any finding of fact or
  421  conclusion of law made in such other proceeding that has become
  422  final shall be conclusive on all parties to an action under this
  423  section. For purposes of As used in this subsection, a finding
  424  or conclusion is final if it has been finally determined on
  425  appeal to the appropriate court, if all time for filing such an
  426  appeal with respect to the finding or conclusion has expired, or
  427  if the finding or conclusion is the term “final” means not
  428  subject to judicial review.
  429         Section 6. Section 68.085, Florida Statutes, is amended to
  430  read:
  431         68.085 Awards to plaintiffs bringing action.—
  432         (1)(a) If the department proceeds with and prevails in an
  433  action brought by a person under this act, subject to the
  434  requirements of paragraph (b), the person shall receive except
  435  as provided in subsection (2), the court shall order the
  436  distribution to the person of at least 15 percent but not more
  437  than 25 percent of the proceeds of the recovered under any
  438  judgment obtained by the department in an action under s. 68.082
  439  or of the proceeds of any settlement of the claim, depending
  440  upon the extent to which the person substantially contributed to
  441  the prosecution of the action.
  442         (b)(2) If the department proceeds with an action which the
  443  court finds the action to be based primarily on disclosures of
  444  specific information, other than information that provided by
  445  the person bringing the action, relating to allegations or
  446  transactions in a criminal, civil, or administrative hearing; a
  447  legislative, administrative, inspector general, or auditor
  448  general report, hearing, audit, or investigation; or from the
  449  news media, the court may award such sums as it considers
  450  appropriate, but in no case more than 10 percent of the proceeds
  451  recovered under a judgment or received in settlement of a claim
  452  under this act, taking into account the significance of the
  453  information and the role of the person bringing the action in
  454  advancing the case to litigation.
  455         (c) Any payment to a person under paragraph (a) or
  456  paragraph (b) shall be made from the proceeds. The person shall
  457  also receive an amount for reasonable expenses that the court
  458  finds to have been necessarily incurred, plus reasonable
  459  attorney fees and costs. All such expenses, fees, and costs
  460  shall be awarded against the defendant.
  461         (2)(3) If the department does not proceed with an action
  462  under this section, the person bringing the action or settling
  463  the claim shall receive an amount that which the court decides
  464  is reasonable for collecting the civil penalty and damages. The
  465  amount shall be not less than 25 percent and not more than 30
  466  percent of the proceeds of the action or settlement and shall be
  467  paid out of such proceeds recovered under a judgment rendered in
  468  an action under this act or in settlement of a claim under this
  469  act. The person shall also receive an amount for reasonable
  470  expenses that the court finds to have been necessarily incurred,
  471  plus reasonable attorney fees and costs. All such expenses,
  472  fees, and costs shall be awarded against the defendant.
  473         (3)(4) Following any distributions under subsection (1) or,
  474  subsection (2), or subsection (3), the state entity agency
  475  injured by the submission of a false or fraudulent claim shall
  476  be awarded an amount not to exceed its compensatory damages. If
  477  the action was based on a claim of funds from the state Medicaid
  478  program, 10 percent of any remaining proceeds shall be deposited
  479  into the Operating Trust Fund to fund rewards for persons who
  480  report and provide information relating to Medicaid fraud
  481  pursuant to s. 409.9203. Any remaining proceeds, including civil
  482  penalties awarded under s. 68.082, shall be deposited in the
  483  General Revenue Fund.
  484         (5) Any payment under this section to the person bringing
  485  the action shall be paid only out of the proceeds recovered from
  486  the defendant.
  487         (4)(6)Regardless of whether or not the department proceeds
  488  with the action, if the court finds that the action was brought
  489  by a person who planned and initiated the violation of s. 68.082
  490  upon which the action was brought, the court may, to the extent
  491  the court considers appropriate, reduce the share of the
  492  proceeds of the action that which the person would otherwise
  493  receive under this section, taking into account the role of the
  494  person in advancing the case to litigation and any relevant
  495  circumstances pertaining to the violation. If the person
  496  bringing the action is convicted of criminal conduct arising
  497  from his or her role in the violation of s. 68.082, the person
  498  shall be dismissed from the civil action and shall not receive
  499  any share of the proceeds of the action. Such dismissal shall
  500  not prejudice the right of the department to continue the
  501  action.
  502         Section 7. Section 68.086, Florida Statutes, is amended to
  503  read:
  504         68.086 Expenses; attorney attorney’s fees and costs.—
  505         (1) If the department initiates an action under this act or
  506  assumes control of an action brought by a person under this act,
  507  the department shall be awarded its reasonable attorney
  508  attorney’s fees, expenses, and costs.
  509         (2) If the court awards the person bringing the action
  510  proceeds under this act, the person shall also be awarded an
  511  amount for reasonable attorney’s fees and costs. Payment for
  512  reasonable attorney’s fees and costs shall be made from the
  513  recovered proceeds before the distribution of any award.
  514         (2)(3) If the department does not proceed with an action
  515  under this act and the person bringing the action conducts the
  516  action, the court may award to the defendant its reasonable
  517  attorney attorney’s fees and expenses costs if the defendant
  518  prevails in the action and the court finds that the claim of the
  519  person bringing the action was clearly frivolous, clearly
  520  vexatious, or brought primarily for purposes of harassment.
  521         (3)(4) No liability shall be incurred by the state
  522  government, the affected agency, or the department for any
  523  expenses, attorney attorney’s fees, or other costs incurred by
  524  any person in bringing or defending an action under this act.
  525         Section 8. Subsections (2), (3), and (6) of section 68.087,
  526  Florida Statutes, are amended to read:
  527         68.087 Exemptions to civil actions.—
  528         (2) In no event may a person bring an action under s.
  529  68.083(2) based upon allegations or transactions that are the
  530  subject of a civil action or an administrative proceeding in
  531  which the state agency is already a party.
  532         (3) The No court shall dismiss have jurisdiction over an
  533  action brought under this act unless opposed by the department,
  534  if substantially the same based upon the public disclosure of
  535  allegations or transactions as alleged in the action were
  536  publicly disclosed:
  537         (a) In a criminal, civil, or administrative hearing in
  538  which the state is a party;
  539         (b) In a legislative, administrative, inspector general, or
  540  other state Auditor General, Chief Financial Officer, or
  541  Department of Financial Services report, hearing, audit, or
  542  investigation; or
  543         (c) From the news media,
  544  
  545  unless the action is brought by the department, or unless the
  546  person bringing the action is an original source of the
  547  information. For purposes of this subsection, the term “original
  548  source” means an individual who, before a public disclosure
  549  under subsection (3), has voluntarily disclosed to the
  550  department the information on which allegations or transactions
  551  in a claim are based, or who has knowledge that is independent
  552  of and materially adds to the publicly disclosed allegations or
  553  transactions has direct and independent knowledge of the
  554  information on which the allegations are based and has
  555  voluntarily provided the information to the department before
  556  filing an action under this section act based on the
  557  information.
  558         (6) No court shall have jurisdiction over an action brought
  559  under this act against a local government. For the purposes of
  560  this subsection, the term “local government” means any county or
  561  municipality.
  562         Section 9. Section 68.089, Florida Statutes, is amended to
  563  read:
  564         68.089 Limitation of actions; effect of interventions by
  565  department.—A civil action under this act may not be brought:
  566         (1) More than 6 years after the date on which the violation
  567  of s. 68.082 is committed; or
  568         (2) More than 3 years after the date when facts material to
  569  the right of action are known or reasonably should have been
  570  known by the department state official charged with
  571  responsibility to act in the circumstances, but in no event more
  572  than 10 years after the date on which the violation is
  573  committed, whichever occurs last; or.
  574         (3) If the department elects to intervene and proceed with
  575  an action brought under s. 68.083(2), the department may file
  576  its own complaint or amend the complaint of a person who has
  577  brought an action under s. 68.083(2) to clarify or add detail to
  578  the claims in which the department is intervening and to add any
  579  additional claims with respect to which the department contends
  580  it is entitled to relief. For statute of limitations purposes,
  581  any such pleading shall relate back to the filing date of the
  582  complaint of the person who originally brought the action, to
  583  the extent that the claim of the state arises out of the
  584  conduct, transactions, or occurrences set forth, or attempted to
  585  be set forth, in the prior complaint of that person. This
  586  subsection applies to any actions under s. 68.083(2) pending on
  587  or filed after July 1, 2013.
  588         Section 10. Section 68.09, Florida Statutes, is amended to
  589  read:
  590         68.09 Burden of proof.—
  591         (1) In any action brought under this act, the department
  592  State of Florida or the qui tam plaintiff shall be required to
  593  prove all essential elements of the cause of action, including
  594  damages, by a preponderance of the evidence.
  595         (2) Notwithstanding any other provision of law, a final
  596  judgment or decree rendered in favor of the state or the Federal
  597  Government in any criminal proceeding concerning the conduct of
  598  the defendant that forms the basis for a civil cause of action
  599  under this act, whether upon a verdict after trial or upon a
  600  plea of guilty or nolo contendere, shall estop the defendant in
  601  any action by the department pursuant to this act as to all
  602  matters as to which such judgment or decree would be an estoppel
  603  as if the department had been a party in the criminal
  604  proceeding.
  605         Section 11. Except as otherwise expressly provided in this
  606  act, this act shall take effect July 1, 2013.