Florida Senate - 2015                                     SB 718
       
       
        
       By Senator Lee
       
       
       
       
       
       24-00407-15                                            2015718__
    1                        A bill to be entitled                      
    2         An act relating to administrative procedures; amending
    3         s. 57.111, F.S.; providing conditions under which a
    4         proceeding is not substantially justified for purposes
    5         of attorney fees and costs; amending s. 120.54, F.S.;
    6         requiring agencies to set a time for workshops for
    7         certain unadopted rules; amending s. 120.55, F.S.;
    8         providing additional items that must be noticed by an
    9         agency in the Florida Administrative Register;
   10         requiring agencies to provide such notice to
   11         registered recipients under certain circumstances;
   12         amending s. 120.56, F.S.; clarifying that petitions
   13         for administrative determinations apply to rules and
   14         proposed rules; identifying which entities have the
   15         burden in hearings in which a rule, proposed rule, or
   16         agency statement is at issue; prohibiting an
   17         administrative law judge from bifurcating certain
   18         petitions; amending s. 120.565, F.S.; authorizing
   19         certain parties to state to an agency their
   20         understanding of how certain rules apply to specific
   21         facts; specifying the timeframe for an agency to
   22         provide a declaratory statement; authorizing the award
   23         of attorney fees under certain circumstances; amending
   24         s. 120.569, F.S.; granting agencies additional time to
   25         render final orders under certain circumstances;
   26         amending s. 120.57, F.S.; conforming proceedings based
   27         on invalid or unadopted rules to proceedings used for
   28         challenging existing rules; requiring an agency to
   29         issue a notice regarding its reliance on the
   30         challenged rule or alleged unadopted rule; authorizing
   31         the administrative law judge to make certain findings
   32         on the validity of certain alleged unadopted rules;
   33         requiring the administrative law judge to issue a
   34         separate final order on certain rules and alleged
   35         unadopted rules; prohibiting agencies from rejecting
   36         specific conclusions of law; limiting situations under
   37         which an agency may reject or modify conclusions of
   38         law; providing for stay of proceedings not involving
   39         disputed issues of fact upon timely filing of a rule
   40         challenge; providing that the final order terminates
   41         the stay; amending s. 120.573, F.S.; providing
   42         additional situations in which a party may request
   43         mediation; amending s. 120.595, F.S.; providing
   44         criteria for establishing whether a nonprevailing
   45         party participated in a proceeding for an improper
   46         purpose; revising provisions providing for the award
   47         of attorney fees and costs by the appellate court or
   48         administrative law judge; providing exceptions;
   49         removing a provision authorizing an agency to
   50         demonstrate its actions were substantially justified;
   51         requiring notice of a proposed challenge by the
   52         petitioner as a condition precedent to filing a
   53         challenge and being eligible for the reimbursement of
   54         attorney fees and costs; authorizing the recovery of
   55         attorney fees and costs incurred in litigating rights
   56         to attorney fees and costs in certain actions;
   57         providing such attorney fees and costs are not limited
   58         in amount; amending s. 120.68, F.S.; requiring
   59         specified agencies to provide notice of appeal to the
   60         Administrative Procedures Committee under certain
   61         circumstances; amending s. 120.695, F.S.; removing
   62         obsolete provisions; requiring agency review and
   63         certification of minor rule violations by a specified
   64         date; requiring the reporting of agency failure to
   65         complete such review and certification; requiring
   66         certification of minor violations for all rules
   67         adopted after a specified date; requiring public
   68         notice; providing for nonapplicability; providing an
   69         effective date.
   70          
   71  Be It Enacted by the Legislature of the State of Florida:
   72  
   73         Section 1. Paragraph (e) of subsection (3) of section
   74  57.111, Florida Statutes, is amended to read:
   75         57.111 Civil actions and administrative proceedings
   76  initiated by state agencies; attorney attorneys’ fees and
   77  costs.—
   78         (3) As used in this section:
   79         (e) A proceeding is “substantially justified” if it had a
   80  reasonable basis in law and fact at the time it was initiated by
   81  a state agency. A proceeding is not “substantially justified” if
   82  the law, rule, or order at issue in the current agency action is
   83  the subject upon which the prevailing party previously
   84  petitioned the agency for a declaratory statement under s.
   85  120.565; the current agency action involves identical or
   86  substantially similar facts and circumstances as those raised in
   87  the previous petition; and:
   88         1. The agency action contradicts the declaratory statement
   89  issued by the agency upon the previous petition; or
   90         2. The agency denied the previous petition under s. 120.565
   91  before initiating the current agency action against the
   92  substantially affected party.
   93         Section 2. Paragraph (c) of subsection (7) of section
   94  120.54, Florida Statutes, is amended to read:
   95         120.54 Rulemaking.—
   96         (7) PETITION TO INITIATE RULEMAKING.—
   97         (c) Within 30 days following the public hearing provided
   98  for in by paragraph (b), if the petition’s requested action
   99  requires rulemaking and the agency initiates rulemaking, the
  100  agency shall establish a time certain for rulemaking workshops
  101  and shall discontinue reliance upon the agency statement or
  102  unadopted rule until it adopts rules pursuant to subsection (3).
  103  If the agency does not initiate rulemaking or otherwise comply
  104  with the requested action, the agency shall publish in the
  105  Florida Administrative Register a statement of its reasons for
  106  not initiating rulemaking or otherwise complying with the
  107  requested action, and of any changes it will make in the scope
  108  or application of the unadopted rule. The agency shall file the
  109  statement with the committee. The committee shall forward a copy
  110  of the statement to the substantive committee with primary
  111  oversight jurisdiction of the agency in each house of the
  112  Legislature. The committee or the committee with primary
  113  oversight jurisdiction may hold a hearing directed to the
  114  statement of the agency. The committee holding the hearing may
  115  recommend to the Legislature the introduction of legislation
  116  making the rule a statutory standard or limiting or otherwise
  117  modifying the authority of the agency.
  118         Section 3. Section 120.55, Florida Statutes, is amended to
  119  read:
  120         120.55 Publication.—
  121         (1) The Department of State shall:
  122         (a)1. Through a continuous revision and publication system,
  123  compile and publish electronically, on an Internet website
  124  managed by the department, the “Florida Administrative Code.”
  125  The Florida Administrative Code shall contain all rules adopted
  126  by each agency, citing the grant of rulemaking authority and the
  127  specific law implemented pursuant to which each rule was
  128  adopted, all history notes as authorized in s. 120.545(7),
  129  complete indexes to all rules contained in the code, and any
  130  other material required or authorized by law or deemed useful by
  131  the department. The electronic code shall display each rule
  132  chapter currently in effect in browse mode and allow full text
  133  search of the code and each rule chapter. The department may
  134  contract with a publishing firm for a printed publication;
  135  however, the department shall retain responsibility for the code
  136  as provided in this section. The electronic publication shall be
  137  the official compilation of the administrative rules of this
  138  state. The Department of State shall retain the copyright over
  139  the Florida Administrative Code.
  140         2. Rules general in form but applicable to only one school
  141  district, community college district, or county, or a part
  142  thereof, or state university rules relating to internal
  143  personnel or business and finance shall not be published in the
  144  Florida Administrative Code. Exclusion from publication in the
  145  Florida Administrative Code shall not affect the validity or
  146  effectiveness of such rules.
  147         3. At the beginning of the section of the code dealing with
  148  an agency that files copies of its rules with the department,
  149  the department shall publish the address and telephone number of
  150  the executive offices of each agency, the manner by which the
  151  agency indexes its rules, a listing of all rules of that agency
  152  excluded from publication in the code, and a statement as to
  153  where those rules may be inspected.
  154         4. Forms shall not be published in the Florida
  155  Administrative Code; but any form which an agency uses in its
  156  dealings with the public, along with any accompanying
  157  instructions, shall be filed with the committee before it is
  158  used. Any form or instruction which meets the definition of
  159  “rule” provided in s. 120.52 shall be incorporated by reference
  160  into the appropriate rule. The reference shall specifically
  161  state that the form is being incorporated by reference and shall
  162  include the number, title, and effective date of the form and an
  163  explanation of how the form may be obtained. Each form created
  164  by an agency which is incorporated by reference in a rule notice
  165  of which is given under s. 120.54(3)(a) after December 31, 2007,
  166  must clearly display the number, title, and effective date of
  167  the form and the number of the rule in which the form is
  168  incorporated.
  169         5. The department shall allow adopted rules and material
  170  incorporated by reference to be filed in electronic form as
  171  prescribed by department rule. When a rule is filed for adoption
  172  with incorporated material in electronic form, the department’s
  173  publication of the Florida Administrative Code on its Internet
  174  website must contain a hyperlink from the incorporating
  175  reference in the rule directly to that material. The department
  176  may not allow hyperlinks from rules in the Florida
  177  Administrative Code to any material other than that filed with
  178  and maintained by the department, but may allow hyperlinks to
  179  incorporated material maintained by the department from the
  180  adopting agency’s website or other sites.
  181         (b) Electronically publish on an Internet website managed
  182  by the department a continuous revision and publication entitled
  183  the “Florida Administrative Register,” which shall serve as the
  184  official publication and must contain:
  185         1. All notices required by s. 120.54(2) and (3)(a)
  186  120.54(3)(a), showing the text of all rules proposed for
  187  consideration.
  188         2. All notices of public meetings, hearings, and workshops
  189  conducted in accordance with s. 120.525, including a statement
  190  of the manner in which a copy of the agenda may be obtained.
  191         3. A notice of each request for authorization to amend or
  192  repeal an existing uniform rule or for the adoption of new
  193  uniform rules.
  194         4. Notice of petitions for declaratory statements or
  195  administrative determinations.
  196         5. A summary of each objection to any rule filed by the
  197  Administrative Procedures Committee.
  198         6. A listing of rules filed for adoption in the previous 7
  199  days.
  200         7. A listing of all rules filed for adoption pending
  201  legislative ratification under s. 120.541(3). Each rule on the
  202  list shall be taken off the list once it is ratified or
  203  withdrawn.
  204         8.6. Any other material required or authorized by law or
  205  deemed useful by the department.
  206  
  207  The department may contract with a publishing firm for a printed
  208  publication of the Florida Administrative Register and make
  209  copies available on an annual subscription basis.
  210         (c) Prescribe by rule the style and form required for
  211  rules, notices, and other materials submitted for filing.
  212         (d) Charge each agency using the Florida Administrative
  213  Register a space rate to cover the costs related to the Florida
  214  Administrative Register and the Florida Administrative Code.
  215         (e) Maintain a permanent record of all notices published in
  216  the Florida Administrative Register.
  217         (2) The Florida Administrative Register Internet website
  218  must allow users to:
  219         (a) Search for notices by type, publication date, rule
  220  number, word, subject, and agency.
  221         (b) Search a database that makes available all notices
  222  published on the website for a period of at least 5 years.
  223         (c) Subscribe to an automated e-mail notification of
  224  selected notices to be sent out before or concurrently with
  225  publication of the electronic Florida Administrative Register.
  226  Such notification must include in the text of the e-mail a
  227  summary of the content of each notice.
  228         (d) View agency forms and other materials submitted to the
  229  department in electronic form and incorporated by reference in
  230  proposed rules.
  231         (e) Comment on proposed rules.
  232         (3) Publication of material required by paragraph (1)(b) on
  233  the Florida Administrative Register Internet website does not
  234  preclude publication of such material on an agency’s website or
  235  by other means.
  236         (4) Each agency shall provide copies of its rules upon
  237  request, with citations to the grant of rulemaking authority and
  238  the specific law implemented for each rule.
  239         (5) Each agency that provides an e-mail notification
  240  service to inform registered recipients of notices shall use
  241  that service to notify recipients of each notice required under
  242  s. 120.54(2) and (3)(a) and provide Internet links to the
  243  appropriate rule page on the Secretary of State’s website or
  244  Internet links to an agency website that contains the proposed
  245  rule or final rule.
  246         (6)(5) Any publication of a proposed rule promulgated by an
  247  agency, whether published in the Florida Administrative Register
  248  or elsewhere, shall include, along with the rule, the name of
  249  the person or persons originating such rule, the name of the
  250  agency head who approved the rule, and the date upon which the
  251  rule was approved.
  252         (7)(6) Access to the Florida Administrative Register
  253  Internet website and its contents, including the e-mail
  254  notification service, shall be free for the public.
  255         (8)(7)(a) All fees and moneys collected by the Department
  256  of State under this chapter shall be deposited in the Records
  257  Management Trust Fund for the purpose of paying for costs
  258  incurred by the department in carrying out this chapter.
  259         (b) The unencumbered balance in the Records Management
  260  Trust Fund for fees collected pursuant to this chapter may not
  261  exceed $300,000 at the beginning of each fiscal year, and any
  262  excess shall be transferred to the General Revenue Fund.
  263         Section 4. Subsections (1), (3), and (4) of section 120.56,
  264  Florida Statutes, are amended to read:
  265         120.56 Challenges to rules.—
  266         (1) GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A
  267  RULE OR A PROPOSED RULE.—
  268         (a) Any person substantially affected by a rule or a
  269  proposed rule may seek an administrative determination of the
  270  invalidity of the rule on the ground that the rule is an invalid
  271  exercise of delegated legislative authority.
  272         (b) The petition seeking an administrative determination of
  273  the invalidity of a rule or proposed rule must state the facts
  274  and with particularity the provisions alleged to be invalid with
  275  sufficient explanation of the facts or grounds for the alleged
  276  invalidity and facts sufficient to show that the petitioner
  277  person challenging a rule is substantially affected by it, or
  278  that the petitioner person challenging a proposed rule would be
  279  substantially affected by it.
  280         (c) The petition shall be filed by electronic means with
  281  the division which shall, immediately upon filing, forward by
  282  electronic means copies to the agency whose rule is challenged,
  283  the Department of State, and the committee. Within 10 days after
  284  receiving the petition, the division director shall, if the
  285  petition complies with the requirements of paragraph (b), assign
  286  an administrative law judge who shall conduct a hearing within
  287  30 days thereafter, unless the petition is withdrawn or a
  288  continuance is granted by agreement of the parties or for good
  289  cause shown. Evidence of good cause includes, but is not limited
  290  to, written notice of an agency’s decision to modify or withdraw
  291  the proposed rule or a written notice from the chair of the
  292  committee stating that the committee will consider an objection
  293  to the rule at its next scheduled meeting. The failure of an
  294  agency to follow the applicable rulemaking procedures or
  295  requirements set forth in this chapter shall be presumed to be
  296  material; however, the agency may rebut this presumption by
  297  showing that the substantial interests of the petitioner and the
  298  fairness of the proceedings have not been impaired.
  299         (d) Within 30 days after the hearing, the administrative
  300  law judge shall render a decision and state the reasons therefor
  301  in writing. The division shall forthwith transmit by electronic
  302  means copies of the administrative law judge’s decision to the
  303  agency, the Department of State, and the committee.
  304         (e) Hearings held under this section shall be de novo in
  305  nature. The standard of proof shall be the preponderance of the
  306  evidence. The petitioner has the burden of going forward with
  307  the evidence. The agency has the burden of proving by a
  308  preponderance of the evidence that the rule, proposed rule, or
  309  agency statement is not an invalid exercise of delegated
  310  legislative authority. Hearings shall be conducted in the same
  311  manner as provided by ss. 120.569 and 120.57, except that the
  312  administrative law judge’s order shall be final agency action.
  313  The petitioner and the agency whose rule is challenged shall be
  314  adverse parties. Other substantially affected persons may join
  315  the proceedings as intervenors on appropriate terms which shall
  316  not unduly delay the proceedings. Failure to proceed under this
  317  section does shall not constitute failure to exhaust
  318  administrative remedies.
  319         (3) CHALLENGING EXISTING RULES; SPECIAL PROVISIONS.—
  320         (a) A substantially affected person may seek an
  321  administrative determination of the invalidity of an existing
  322  rule at any time during the existence of the rule. The
  323  petitioner has the a burden of going forward with the evidence
  324  as set forth in paragraph (1)(b), and the agency has the burden
  325  of proving by a preponderance of the evidence that the existing
  326  rule is not an invalid exercise of delegated legislative
  327  authority as to the objections raised.
  328         (b) The administrative law judge may declare all or part of
  329  a rule invalid. The rule or part thereof declared invalid shall
  330  become void when the time for filing an appeal expires. The
  331  agency whose rule has been declared invalid in whole or part
  332  shall give notice of the decision in the Florida Administrative
  333  Register in the first available issue after the rule has become
  334  void.
  335         (c) If an existing agency rule is declared invalid, the
  336  agency may no longer rely on the rule for final agency action,
  337  including any final action on cases pending under s. 120.57.
  338         (4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES; SPECIAL
  339  PROVISIONS.—
  340         (a) Any person substantially affected by an agency
  341  statement may seek an administrative determination that the
  342  statement violates s. 120.54(1)(a). The petition shall include
  343  the text of the statement or a description of the statement and
  344  shall state with particularity facts sufficient to show that the
  345  statement constitutes a rule under s. 120.52 and that the agency
  346  has not adopted the statement by the rulemaking procedure
  347  provided by s. 120.54.
  348         (b) The administrative law judge may extend the hearing
  349  date beyond 30 days after assignment of the case for good cause.
  350  Upon notification to the administrative law judge provided
  351  before the final hearing that the agency has published a notice
  352  of rulemaking under s. 120.54(3), such notice shall
  353  automatically operate as a stay of proceedings pending adoption
  354  of the statement as a rule. The administrative law judge may
  355  vacate the stay for good cause shown. A stay of proceedings
  356  pending rulemaking shall remain in effect so long as the agency
  357  is proceeding expeditiously and in good faith to adopt the
  358  statement as a rule. If a hearing is held and the petitioner
  359  proves the allegations of the petition, the agency shall have
  360  the burden of proving that rulemaking is not feasible or not
  361  practicable under s. 120.54(1)(a).
  362         (c) The administrative law judge may determine whether all
  363  or part of a statement violates s. 120.54(1)(a). The decision of
  364  the administrative law judge shall constitute a final order. The
  365  division shall transmit a copy of the final order to the
  366  Department of State and the committee. The Department of State
  367  shall publish notice of the final order in the first available
  368  issue of the Florida Administrative Register.
  369         (d) If an administrative law judge enters a final order
  370  that all or part of an agency statement violates s.
  371  120.54(1)(a), the agency must immediately discontinue all
  372  reliance upon the statement or any substantially similar
  373  statement as a basis for agency action.
  374         (e) If proposed rules addressing the challenged statement
  375  are determined to be an invalid exercise of delegated
  376  legislative authority as defined in s. 120.52(8)(b)-(f), the
  377  agency must immediately discontinue reliance on the statement
  378  and any substantially similar statement until rules addressing
  379  the subject are properly adopted, and the administrative law
  380  judge shall enter a final order to that effect.
  381         (f) If a petitioner files a petition challenging agency
  382  action and a part of that petition alleges the presence of or
  383  reliance upon agency statements or unadopted rules, the
  384  administrative law judge may not bifurcate the petition into two
  385  cases but shall consider the challenge to the proposed agency
  386  action and the allegation that such agency action was based upon
  387  the presence of or reliance upon agency statements or unadopted
  388  rules.
  389         (g)(f) All proceedings to determine a violation of s.
  390  120.54(1)(a) shall be brought pursuant to this subsection. A
  391  proceeding pursuant to this subsection may be consolidated with
  392  a proceeding under subsection (3) or under any other section of
  393  this chapter. This paragraph does not prevent a party whose
  394  substantial interests have been determined by an agency action
  395  from bringing a proceeding pursuant to s. 120.57(1)(e).
  396         Section 5. Subsection (2) of section 120.565, Florida
  397  Statutes, is amended, and subsections (4) and (5) are added to
  398  that section, to read:
  399         120.565 Declaratory statement by agencies.—
  400         (2) The petition seeking a declaratory statement shall
  401  state with particularity the petitioner’s set of circumstances
  402  and shall specify the statutory provision, rule, or order that
  403  the petitioner believes may apply to the set of circumstances.
  404         (4) The petitioner may submit to the agency clerk a
  405  statement that describes or asserts the petitioner’s
  406  understanding of how the statutory provision, rule, or order
  407  applies to the set of circumstances. The agency has 60 days to
  408  review the petitioner’s statement and to either accept the
  409  statement or offer changes and other clarifications to establish
  410  the plain meaning of how the statutory provision, rule, or order
  411  applies to the set of circumstances described in the
  412  petitioner’s statement.
  413         (5) If the agency denies a request for a declaratory
  414  statement and the petitioner appeals the denial and it is
  415  determined that the agency improperly denied the request, the
  416  petitioner is entitled to an award of reasonable attorney fees
  417  and costs.
  418         Section 6. Paragraph (l) of subsection (2) of section
  419  120.569, Florida Statutes, is amended to read:
  420         120.569 Decisions which affect substantial interests.—
  421         (2)
  422         (l) Unless the time period is waived or extended with the
  423  consent of all parties, the final order in a proceeding which
  424  affects substantial interests must be in writing and include
  425  findings of fact, if any, and conclusions of law separately
  426  stated, and it must be rendered within 90 days:
  427         1. After the hearing is concluded, if conducted by the
  428  agency;
  429         2. After a recommended order is submitted to the agency and
  430  mailed to all parties, if the hearing is conducted by an
  431  administrative law judge, except that, at the election of the
  432  agency, the time for rendering the final order may be extended
  433  up to 10 days after the entry of a mandate on any appeal from a
  434  final order under s. 120.57(1)(e)4.; or
  435         3. After the agency has received the written and oral
  436  material it has authorized to be submitted, if there has been no
  437  hearing.
  438         Section 7. Paragraphs (e), (h), and (l) of subsection (1)
  439  and subsection (2) of section 120.57, Florida Statutes, are
  440  amended to read:
  441         120.57 Additional procedures for particular cases.—
  442         (1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING
  443  DISPUTED ISSUES OF MATERIAL FACT.—	
  444         (e)1. An agency or an administrative law judge may not base
  445  agency action that determines the substantial interests of a
  446  party on an unadopted rule or a rule that is an invalid exercise
  447  of delegated legislative authority. The administrative law judge
  448  shall determine whether an agency statement constitutes an
  449  unadopted rule. This subparagraph does not preclude application
  450  of valid adopted rules and applicable provisions of law to the
  451  facts.
  452         2. In a matter initiated as a result of agency action
  453  proposing to determine the substantial interests of a party, a
  454  party’s timely petition for hearing may challenge the proposed
  455  agency action based on a rule that is an invalid exercise of
  456  delegated legislative authority or based on an alleged unadopted
  457  rule. For challenges brought under this subparagraph:
  458         a. The challenge shall be pled as a defense using the
  459  procedures set forth in s. 120.56(1)(b).
  460         b. Section 120.56(3)(a) applies to a challenge alleging
  461  that a rule is an invalid exercise of delegated legislative
  462  authority.
  463         c. Section 120.56(4)(c) applies to a challenge alleging an
  464  unadopted rule.
  465         d. The agency has 15 days from the date of receipt of a
  466  challenge under this subparagraph to serve the challenging party
  467  with a notice as to whether the agency will continue to rely
  468  upon the rule or the alleged unadopted rule as a basis for the
  469  action determining the party’s substantive interests. Failure to
  470  serve or to timely serve the notice constitutes a binding
  471  determination that the agency may not rely upon the rule or
  472  unadopted rule further in the proceeding. The agency shall
  473  include a copy of the notice, if one was served, when it refers
  474  the matter to the division under s. 120.569(2)(a).
  475         e. This subparagraph does not preclude the consolidation of
  476  any proceeding under s. 120.56 with any proceeding under this
  477  paragraph.
  478         3.2. Notwithstanding subparagraph 1., if an agency
  479  demonstrates that the statute being implemented directs it to
  480  adopt rules, that the agency has not had time to adopt those
  481  rules because the requirement was so recently enacted, and that
  482  the agency has initiated rulemaking and is proceeding
  483  expeditiously and in good faith to adopt the required rules,
  484  then the agency’s action may be based upon those unadopted rules
  485  if, subject to de novo review by the administrative law judge
  486  determines that the unadopted rules would not constitute an
  487  invalid exercise of delegated legislative authority if adopted
  488  as rules. An unadopted rule is The agency action shall not be
  489  presumed to be valid or invalid. The agency must demonstrate
  490  that the unadopted rule:
  491         a. Is within the powers, functions, and duties delegated by
  492  the Legislature or, if the agency is operating pursuant to
  493  authority vested in the agency by derived from the State
  494  Constitution, is within that authority;
  495         b. Does not enlarge, modify, or contravene the specific
  496  provisions of law implemented;
  497         c. Is not vague, establishes adequate standards for agency
  498  decisions, or does not vest unbridled discretion in the agency;
  499         d. Is not arbitrary or capricious. A rule is arbitrary if
  500  it is not supported by logic or the necessary facts; a rule is
  501  capricious if it is adopted without thought or reason or is
  502  irrational;
  503         e. Is not being applied to the substantially affected party
  504  without due notice; and
  505         f. Does not impose excessive regulatory costs on the
  506  regulated person, county, or city.
  507         4. If the agency timely serves notice of continued reliance
  508  upon a challenged rule or an alleged unadopted rule under sub
  509  subparagraph 2.d., the administrative law judge shall determine
  510  whether the challenged rule is an invalid exercise of delegated
  511  legislative authority or whether the challenged agency statement
  512  constitutes an unadopted rule and if that unadopted rule meets
  513  the requirements of subparagraph 3. The determination shall be
  514  rendered as a separate final order no earlier than the date on
  515  which the administrative law judge serves the recommended order.
  516         5.3. The recommended and final orders in any proceeding
  517  shall be governed by the provisions of paragraphs (k) and (l),
  518  except that the administrative law judge’s determination
  519  regarding an unadopted rule under subparagraph 4. 1. or
  520  subparagraph 2. shall be included as a conclusion of law that
  521  the agency may not reject not be rejected by the agency unless
  522  the agency first determines from a review of the complete
  523  record, and states with particularity in the order, that such
  524  determination is clearly erroneous or does not comply with
  525  essential requirements of law. In any proceeding for review
  526  under s. 120.68, if the court finds that the agency’s rejection
  527  of the determination regarding the unadopted rule does not
  528  comport with the provisions of this subparagraph, the agency
  529  action shall be set aside and the court shall award to the
  530  prevailing party the reasonable costs and a reasonable
  531  attorney’s fee for the initial proceeding and the proceeding for
  532  review.
  533         (h) Any party to a proceeding in which an administrative
  534  law judge of the Division of Administrative Hearings has final
  535  order authority may move for a summary final order when there is
  536  no genuine issue as to any material fact. A summary final order
  537  shall be rendered if the administrative law judge determines
  538  from the pleadings, depositions, answers to interrogatories, and
  539  admissions on file, together with affidavits, if any, that no
  540  genuine issue as to any material fact exists and that the moving
  541  party is entitled as a matter of law to the entry of a final
  542  order. A summary final order shall consist of findings of fact,
  543  if any, conclusions of law, a disposition or penalty, if
  544  applicable, and any other information required by law to be
  545  contained in the final order. This paragraph does not apply to
  546  proceedings set forth in paragraph (e).
  547         (l) The agency may adopt the recommended order as the final
  548  order of the agency. The agency in its final order may only
  549  reject or modify the conclusions of law over which it has
  550  substantive jurisdiction and interpretation of administrative
  551  rules over which it has substantive jurisdiction if the agency
  552  determines that the conclusions of law are clearly erroneous.
  553  When rejecting or modifying such conclusion of law or
  554  interpretation of administrative rule, the agency must state
  555  with particularity its reasons for rejecting or modifying such
  556  conclusion of law or interpretation of administrative rule and
  557  must make a finding that its substituted conclusion of law or
  558  interpretation of administrative rule is as reasonable as, or
  559  more reasonable than, that which was rejected or modified.
  560  Rejection or modification of conclusions of law may not form the
  561  basis for rejection or modification of findings of fact. The
  562  agency may not reject or modify the findings of fact unless the
  563  agency first determines from a review of the entire record, and
  564  states with particularity in the order, that the findings of
  565  fact were not based upon competent substantial evidence or that
  566  the proceedings on which the findings were based did not comply
  567  with essential requirements of law. The agency may accept the
  568  recommended penalty in a recommended order, but may not reduce
  569  or increase it without a review of the complete record and
  570  without stating with particularity its reasons therefor in the
  571  order, by citing to the record in justifying the action.
  572         (2) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS NOT
  573  INVOLVING DISPUTED ISSUES OF MATERIAL FACT.—In any case to which
  574  subsection (1) does not apply:
  575         (a) The agency shall:
  576         1. Give reasonable notice to affected persons of the action
  577  of the agency, whether proposed or already taken, or of its
  578  decision to refuse action, together with a summary of the
  579  factual, legal, and policy grounds therefor.
  580         2. Give parties or their counsel the option, at a
  581  convenient time and place, to present to the agency or
  582  administrative law judge hearing officer written or oral
  583  evidence in opposition to the action of the agency or to its
  584  refusal to act, or a written statement challenging the grounds
  585  upon which the agency has chosen to justify its action or
  586  inaction.
  587         3. If the objections of the parties are overruled, provide
  588  a written explanation within 7 days.
  589         (b) An agency may not base agency action that determines
  590  the substantial interests of a party on an unadopted rule or a
  591  rule that is an invalid exercise of delegated legislative
  592  authority. No later than the date provided by the agency under
  593  subparagraph (a)2., the party may file a petition under s.
  594  120.56 challenging the rule, portion of rule, or unadopted rule
  595  upon which the agency bases its proposed action or refusal to
  596  act. The filing of a challenge under s. 120.56 pursuant to this
  597  paragraph shall stay all proceedings on the agency’s proposed
  598  action or refusal to act until entry of the final order by the
  599  administrative law judge. The final order shall provide notice
  600  that the stay of the pending agency action is terminated and any
  601  further stay pending appeal of the final order must be sought
  602  from the appellate court.
  603         (c)(b) The record shall only consist of:
  604         1. The notice and summary of grounds.
  605         2. Evidence received.
  606         3. All written statements submitted.
  607         4. Any decision overruling objections.
  608         5. All matters placed on the record after an ex parte
  609  communication.
  610         6. The official transcript.
  611         7. Any decision, opinion, order, or report by the presiding
  612  officer.
  613         Section 8. Section 120.573, Florida Statutes, is amended to
  614  read:
  615         120.573 Mediation of disputes.—
  616         (1) Each announcement of an agency action that affects
  617  substantial interests shall advise whether mediation of the
  618  administrative dispute for the type of agency action announced
  619  is available and that choosing mediation does not affect the
  620  right to an administrative hearing. If the agency and all
  621  parties to the administrative action agree to mediation, in
  622  writing, within 10 days after the time period stated in the
  623  announcement for election of an administrative remedy under ss.
  624  120.569 and 120.57, the time limitations imposed by ss. 120.569
  625  and 120.57 shall be tolled to allow the agency and parties to
  626  mediate the administrative dispute. The mediation shall be
  627  concluded within 60 days after of such agreement unless
  628  otherwise agreed by the parties. The mediation agreement shall
  629  include provisions for mediator selection, the allocation of
  630  costs and fees associated with mediation, and the mediating
  631  parties’ understanding regarding the confidentiality of
  632  discussions and documents introduced during mediation. If
  633  mediation results in settlement of the administrative dispute,
  634  the agency shall enter a final order incorporating the agreement
  635  of the parties. If mediation terminates without settlement of
  636  the dispute, the agency shall notify the parties in writing that
  637  the administrative hearing processes under ss. 120.569 and
  638  120.57 are resumed.
  639         (2) A party in a proceeding conducted pursuant to a
  640  petition seeking an administrative determination of the
  641  invalidity of an existing rule, proposed rule, or agency
  642  statement under s. 120.56 or a proceeding conducted pursuant to
  643  a petition seeking a declaratory statement under s. 120.565 may
  644  request mediation of the dispute under this section.
  645         Section 9. Section 120.595, Florida Statutes, is amended to
  646  read:
  647         120.595 Attorney Attorney’s fees.—
  648         (1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
  649  120.57(1).—
  650         (a) The provisions of this subsection are supplemental to,
  651  and do not abrogate, other provisions allowing the award of fees
  652  or costs in administrative proceedings.
  653         (b) The final order in a proceeding pursuant to s.
  654  120.57(1) shall award reasonable costs and a reasonable attorney
  655  fees attorney’s fee to the prevailing party if the
  656  administrative law judge determines only where the nonprevailing
  657  adverse party has been determined by the administrative law
  658  judge to have participated in the proceeding for an improper
  659  purpose.
  660         1.(c)Other than as provided in paragraph (d), in
  661  proceedings pursuant to s. 120.57(1), and upon motion, the
  662  administrative law judge shall determine whether any party
  663  participated in the proceeding for an improper purpose as
  664  defined by this subsection. In making such determination, the
  665  administrative law judge shall consider whether The
  666  nonprevailing adverse party shall be presumed to have
  667  participated in the pending proceeding for an improper purpose
  668  if:
  669         a. Such party was an adverse party has participated in
  670  three two or more other such proceedings involving the same
  671  prevailing party and the same subject;
  672         b. In those project as an adverse party and in which such
  673  two or more proceedings, the nonprevailing adverse party did not
  674  establish either the factual or legal merits of its position;,
  675  and shall consider whether
  676         c. The factual or legal position asserted in the pending
  677  instant proceeding would have been cognizable in the previous
  678  proceedings; and
  679         d. The nonprevailing adverse party has not rebutted the
  680  presumption of participating. In such event, it shall be
  681  rebuttably presumed that the nonprevailing adverse party
  682  participated in the pending proceeding for an improper purpose.
  683         2.(d)If In any proceeding in which the administrative law
  684  judge determines that a party is determined to have participated
  685  in the proceeding for an improper purpose, the recommended order
  686  shall include such findings of fact and conclusions of law to
  687  establish the conclusion so designate and shall determine the
  688  award of costs and attorney attorney’s fees.
  689         (c)(e) For the purpose of this subsection:
  690         1. “Improper purpose” means participation in a proceeding
  691  pursuant to s. 120.57(1) primarily to harass or to cause
  692  unnecessary delay or for frivolous purpose or to needlessly
  693  increase the cost of litigation, licensing, or securing the
  694  approval of an activity.
  695         2. “Costs” has the same meaning as the costs allowed in
  696  civil actions in this state as provided in chapter 57.
  697         3. “Nonprevailing adverse party” means a party that has
  698  failed to have substantially changed the outcome of the proposed
  699  or final agency action which is the subject of a proceeding. In
  700  the event that a proceeding results in any substantial
  701  modification or condition intended to resolve the matters raised
  702  in a party’s petition, it shall be determined that the party
  703  having raised the issue addressed is not a nonprevailing adverse
  704  party. The recommended order shall state whether the change is
  705  substantial for purposes of this subsection. In no event shall
  706  the term “nonprevailing party” or “prevailing party” be deemed
  707  to include any party that has intervened in a previously
  708  existing proceeding to support the position of an agency.
  709         (d) For challenges brought under s. 120.57(1)(e), when the
  710  agency relies on a challenged rule or an alleged unadopted rule
  711  pursuant to s. 120.57(1)(e)2.d., if the appellate court or the
  712  administrative law judge declares the rule or portion of the
  713  rule to be invalid or that the agency statement is an unadopted
  714  rule that does not meet the requirements of s. 120.57(1)(e)4., a
  715  judgment or order shall be rendered against the agency for
  716  reasonable costs and reasonable attorney fees. An award of
  717  attorney fees as provided by this paragraph may not exceed
  718  $50,000.
  719         (2) CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO SECTION
  720  120.56(2).—If the appellate court or administrative law judge
  721  declares a proposed rule or portion of a proposed rule invalid
  722  pursuant to s. 120.56(2), a judgment or order shall be rendered
  723  against the agency for reasonable costs and reasonable attorney
  724  attorney’s fees, unless the agency demonstrates that its actions
  725  were substantially justified or special circumstances exist
  726  which would make the award unjust. An agency’s actions are
  727  “substantially justified” if there was a reasonable basis in law
  728  and fact at the time the actions were taken by the agency. If
  729  the agency prevails in the proceedings, the appellate court or
  730  administrative law judge shall award reasonable costs and
  731  reasonable attorney attorney’s fees against a party if the
  732  appellate court or administrative law judge determines that a
  733  party participated in the proceedings for an improper purpose as
  734  defined by paragraph (1)(c) (1)(e). An No award of attorney
  735  attorney’s fees as provided by this subsection may not shall
  736  exceed $50,000.
  737         (3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO SECTION
  738  120.56(3) AND (5).—If the appellate court or administrative law
  739  judge declares a rule or portion of a rule invalid pursuant to
  740  s. 120.56(3) or (5), a judgment or order shall be rendered
  741  against the agency for reasonable costs and reasonable attorney
  742  attorney’s fees, unless the agency demonstrates that its actions
  743  were substantially justified or special circumstances exist
  744  which would make the award unjust. An agency’s actions are
  745  “substantially justified” if there was a reasonable basis in law
  746  and fact at the time the actions were taken by the agency. If
  747  the agency prevails in the proceedings, the appellate court or
  748  administrative law judge shall award reasonable costs and
  749  reasonable attorney attorney’s fees against a party if the
  750  appellate court or administrative law judge determines that a
  751  party participated in the proceedings for an improper purpose as
  752  defined by paragraph (1)(c) (1)(e). An No award of attorney
  753  attorney’s fees as provided by this subsection may not shall
  754  exceed $50,000.
  755         (4) CHALLENGES TO UNADOPTED RULES AGENCY ACTION PURSUANT TO
  756  SECTION 120.56(4).—
  757         (a) If the appellate court or administrative law judge
  758  determines that all or part of an unadopted rule agency
  759  statement violates s. 120.54(1)(a), or that the agency must
  760  immediately discontinue reliance upon on the unadopted rule
  761  statement and any substantially similar statement pursuant to s.
  762  120.56(4)(e), a judgment or order shall be entered against the
  763  agency for reasonable costs and reasonable attorney attorney’s
  764  fees, unless the agency demonstrates that the statement is
  765  required by the Federal Government to implement or retain a
  766  delegated or approved program or to meet a condition to receipt
  767  of federal funds.
  768         (b) Upon notification to the administrative law judge
  769  provided before the final hearing that the agency has published
  770  a notice of rulemaking under s. 120.54(3)(a), such notice shall
  771  automatically operate as a stay of proceedings pending
  772  rulemaking. The administrative law judge may vacate the stay for
  773  good cause shown. A stay of proceedings under this paragraph
  774  remains in effect so long as the agency is proceeding
  775  expeditiously and in good faith to adopt the statement as a
  776  rule. The administrative law judge shall award reasonable costs
  777  and reasonable attorney attorney’s fees incurred accrued by the
  778  petitioner before prior to the date the notice was published,
  779  unless the agency proves to the administrative law judge that it
  780  did not know and should not have known that the statement was an
  781  unadopted rule. Attorneys’ fees and costs under this paragraph
  782  and paragraph (a) shall be awarded only upon a finding that the
  783  agency received notice that the statement may constitute an
  784  unadopted rule at least 30 days before a petition under s.
  785  120.56(4) was filed and that the agency failed to publish the
  786  required notice of rulemaking pursuant to s. 120.54(3) that
  787  addresses the statement within that 30-day period. Notice to the
  788  agency may be satisfied by its receipt of a copy of the s.
  789  120.56(4) petition, a notice or other paper containing
  790  substantially the same information, or a petition filed pursuant
  791  to s. 120.54(7). An award of attorney attorney’s fees as
  792  provided by this paragraph may not exceed $50,000.
  793         (c) Notwithstanding the provisions of chapter 284, an award
  794  shall be paid from the budget entity of the secretary, executive
  795  director, or equivalent administrative officer of the agency,
  796  and the agency is shall not be entitled to payment of an award
  797  or reimbursement for payment of an award under any provision of
  798  law.
  799         (d) If the agency prevails in the proceedings, the
  800  appellate court or administrative law judge shall award
  801  reasonable costs and attorney attorney’s fees against a party if
  802  the appellate court or administrative law judge determines that
  803  the party participated in the proceedings for an improper
  804  purpose as defined in paragraph (1)(c) (1)(e) or that the party
  805  or the party’s attorney knew or should have known that a claim
  806  was not supported by the material facts necessary to establish
  807  the claim or would not be supported by the application of then
  808  existing law to those material facts.
  809         (5) APPEALS.—When there is an appeal, the court in its
  810  discretion may award reasonable attorney attorney’s fees and
  811  reasonable costs to the prevailing party if the court finds that
  812  the appeal was frivolous, meritless, or an abuse of the
  813  appellate process, or that the agency action that which
  814  precipitated the appeal was a gross abuse of the agency’s
  815  discretion. Upon review of agency action that precipitates an
  816  appeal, if the court finds that the agency improperly rejected
  817  or modified findings of fact in a recommended order, the court
  818  shall award reasonable attorney attorney’s fees and reasonable
  819  costs to a prevailing appellant for the administrative
  820  proceeding and the appellate proceeding.
  821         (6) NOTICE OF INVALIDITY.—A party failing to serve a notice
  822  of proposed challenge under this subsection is not entitled to
  823  an award of reasonable attorney fees and reasonable costs under
  824  this section.
  825         (a) Before filing a petition challenging the validity of a
  826  proposed rule under s. 120.56(2), an adopted rule under s.
  827  120.56(3), or an agency statement defined as an unadopted rule
  828  under s. 120.56(4), a substantially affected person shall serve
  829  the agency head with notice of the proposed challenge. The
  830  notice shall identify the proposed or adopted rule or the
  831  unadopted rule that the person proposes to challenge and a brief
  832  explanation of the basis for that challenge. The notice must be
  833  received by the agency head at least 5 days before the filing of
  834  a petition under s. 120.56(2) and at least 30 days before the
  835  filing of a petition under s. 120.56(3) or s. 120.56(4).
  836         (b) This subsection does not apply to defenses raised and
  837  challenges authorized by s. 120.57(1)(e) or s. 120.57(2)(b).
  838         (7) DETERMINATION OF RECOVERABLE FEES AND COSTS.—For
  839  purposes of this chapter, s. 57.105(5), and s. 57.111, in
  840  addition to an award of reasonable attorney fees and reasonable
  841  costs, the prevailing party shall also recover reasonable
  842  attorney fees and reasonable costs incurred in litigating
  843  entitlement to, and the determination or quantification of,
  844  reasonable attorney fees and reasonable costs for the underlying
  845  matter. Reasonable attorney fees and reasonable costs awarded
  846  for litigating entitlement to, and the determination or
  847  quantification of, reasonable attorney fees and reasonable costs
  848  for the underlying matter are not subject to the limitations on
  849  amounts provided in this chapter or s. 57.111.
  850         (8)(6) OTHER SECTIONS NOT AFFECTED.—Other provisions,
  851  including ss. 57.105 and 57.111, authorize the award of attorney
  852  attorney’s fees and costs in administrative proceedings. Nothing
  853  in This section does not shall affect the availability of
  854  attorney attorney’s fees and costs as provided in those
  855  sections.
  856         Section 10. Paragraph (a) of subsection (2) and subsection
  857  (9) of section 120.68, Florida Statutes, are amended to read:
  858         120.68 Judicial review.—
  859         (2)(a) Judicial review shall be sought in the appellate
  860  district where the agency maintains its headquarters or where a
  861  party resides or as otherwise provided by law. All proceedings
  862  shall be instituted by filing a notice of appeal or petition for
  863  review in accordance with the Florida Rules of Appellate
  864  Procedure within 30 days after the rendition of the order being
  865  appealed. If the appeal is of an order rendered in a proceeding
  866  initiated under s. 120.56 or a final order under s.
  867  120.57(1)(e)4., the agency whose rule is being challenged shall
  868  transmit a copy of the notice of appeal to the committee.
  869         (9) A No petition challenging an agency rule as an invalid
  870  exercise of delegated legislative authority may not shall be
  871  instituted pursuant to this section, except to review an order
  872  entered pursuant to a proceeding under s. 120.56, s.
  873  120.57(1)(e)5., or s. 120.57(2)(b) or an agency’s findings of
  874  immediate danger, necessity, and procedural fairness
  875  prerequisite to the adoption of an emergency rule pursuant to s.
  876  120.54(4), unless the sole issue presented by the petition is
  877  the constitutionality of a rule and there are no disputed issues
  878  of fact.
  879         Section 11. Section 120.695, Florida Statutes, is amended
  880  to read:
  881         120.695 Notice of noncompliance; designation of minor
  882  violation of rules.—
  883         (1) It is the policy of the state that the purpose of
  884  regulation is to protect the public by attaining compliance with
  885  the policies established by the Legislature. Fines and other
  886  penalties may be provided in order to assure compliance;
  887  however, the collection of fines and the imposition of penalties
  888  are intended to be secondary to the primary goal of attaining
  889  compliance with an agency’s rules. It is the intent of the
  890  Legislature that an agency charged with enforcing rules shall
  891  issue a notice of noncompliance as its first response to a minor
  892  violation of a rule in any instance in which it is reasonable to
  893  assume that the violator was unaware of the rule or unclear as
  894  to how to comply with it.
  895         (2)(a) Each agency shall issue a notice of noncompliance as
  896  a first response to a minor violation of a rule. A “notice of
  897  noncompliance” is a notification by the agency charged with
  898  enforcing the rule issued to the person or business subject to
  899  the rule. A notice of noncompliance may not be accompanied with
  900  a fine or other disciplinary penalty. It must identify the
  901  specific rule that is being violated, provide information on how
  902  to comply with the rule, and specify a reasonable time for the
  903  violator to comply with the rule. A rule is agency action that
  904  regulates a business, occupation, or profession, or regulates a
  905  person operating a business, occupation, or profession, and
  906  that, if not complied with, may result in a disciplinary
  907  penalty.
  908         (b) Each agency shall review all of its rules and designate
  909  those for which a violation would be a minor violation and for
  910  which a notice of noncompliance must be the first enforcement
  911  action taken against a person or business subject to regulation.
  912  A violation of a rule is a minor violation if it does not result
  913  in economic or physical harm to a person or adversely affect the
  914  public health, safety, or welfare or create a significant threat
  915  of such harm. If an agency under the direction of a cabinet
  916  officer mails to each licensee a notice of the designated rules
  917  at the time of licensure and at least annually thereafter, the
  918  provisions of paragraph (a) may be exercised at the discretion
  919  of the agency. Such notice shall include a subject-matter index
  920  of the rules and information on how the rules may be obtained.
  921         (c)1. Within 3 months after any request of the rules
  922  ombudsman in the Executive Office of the Governor, The agency’s
  923  review and designation must be completed by December 1, 1995;
  924  each agency shall review under the direction of the Governor
  925  shall make a report to the Governor, and each agency under the
  926  joint direction of the Governor and Cabinet shall report to the
  927  Governor and Cabinet by January 1, 1996, on which of its rules
  928  and certify to the President of the Senate, the Speaker of the
  929  House of Representatives, the Administrative Procedures
  930  Committee, and the rules ombudsman any designated rules, have
  931  been designated as rules the violation of which would be a minor
  932  violation under paragraph (b), consistent with the legislative
  933  intent stated in subsection (1). The rules ombudsman shall
  934  promptly report to the Governor, the President of the Senate,
  935  the Speaker of the House of Representatives, and the
  936  Administrative Procedures Committee each failure of an agency to
  937  timely complete the review and file the certification as
  938  required by this section.
  939         2. Beginning July 1, 2015, each agency shall:
  940         a. Publish all rules that the agency has designated as
  941  rules that the violation of which would be a minor violation,
  942  either as a complete list on the agency’s Internet web page or
  943  by incorporation of the designations in the agency’s
  944  disciplinary guidelines adopted as a rule.
  945         b. Ensure that all investigative and enforcement personnel
  946  are knowledgeable about the agency’s designations under this
  947  section.
  948         3. For each rule filed for adoption, the agency head shall
  949  certify whether any part of the rule is designated as a rule
  950  that the violation of which would be a minor violation and shall
  951  update the listing required by sub-subparagraph 2.a.
  952         (d) The Governor or the Governor and Cabinet, as
  953  appropriate pursuant to paragraph (c), may evaluate the review
  954  and designation effects of each agency subject to the direction
  955  and supervision of such authority and may direct apply a
  956  different designation than that applied by such the agency.
  957         (e) Notwithstanding s. 120.52(1)(a), this section does not
  958  apply to:
  959         1. The Department of Corrections;
  960         2. Educational units;
  961         3. The regulation of law enforcement personnel; or
  962         4. The regulation of teachers.
  963         (f) Designation pursuant to this section is not subject to
  964  challenge under this chapter.
  965         Section 12. This act shall take effect July 1, 2015.