Florida Senate - 2016 CS for SB 372
By the Committee on Judiciary; and Senator Lee
1 A bill to be entitled
2 An act relating to administrative procedures; amending
3 s. 120.54, F.S.; providing procedures for agencies to
4 follow when initiating rulemaking after certain public
5 hearings; limiting reliance upon an unadopted rule in
6 certain circumstances; amending s. 120.55, F.S.;
7 providing for publication of notices of rule
8 development and of rules filed for adoption; providing
9 for additional notice of rule development, proposals,
10 and adoptions in the Florida Administrative Register;
11 requiring certain agencies to provide additional e
12 mail notifications concerning specified rulemaking and
13 rule development activities; providing that failure to
14 follow certain provisions does not constitute grounds
15 to challenge validity of a rule; amending s. 120.56,
16 F.S.; clarifying language regarding challenges to
17 rules; specifying the petitioner’s burden of proof in
18 proposed rule challenges; amending s. 120.57, F.S.;
19 conforming proceedings that oppose agency action based
20 on an invalid or unadopted rule to proceedings used
21 for challenging rules; authorizing the administrative
22 law judge to make certain findings on the validity of
23 certain alleged unadopted rules; authorizing a
24 petitioner to file certain collateral challenges
25 regarding the validity of a rule; authorizing the
26 administrative law judge to consolidate proceedings in
27 such rule challenges; providing that agency action may
28 not be based on an invalid or unadopted rule; amending
29 s. 120.68, F.S.; specifying legal authority to file a
30 petition challenging an agency rule as an invalid
31 exercise of delegated legislative authority; amending
32 s. 120.695, F.S.; removing obsolete provisions with
33 respect to required agency review and designation of
34 minor violations; requiring agency review and
35 certification of minor violation rules by a specified
36 date; requiring minor violation certification for all
37 rules adopted after a specified date; requiring public
38 notice; providing applicability; amending s. 120.595,
39 F.S.; conforming a cross-reference; providing an
40 effective date.
42 Be It Enacted by the Legislature of the State of Florida:
44 Section 1. Paragraph (c) of subsection (7) of section
45 120.54, Florida Statutes, is amended, and paragraph (d) is added
46 to that subsection, to read:
47 120.54 Rulemaking.—
48 (7) PETITION TO INITIATE RULEMAKING.—
49 (c) If the agency does not initiate rulemaking or otherwise
50 comply with the requested action within 30 days after
51 the public hearing provided for in by paragraph (b), if the
52 agency does not initiate rulemaking or otherwise comply with the
53 requested action, the agency shall publish in the Florida
54 Administrative Register a statement of its reasons for not
55 initiating rulemaking or otherwise complying with the requested
56 action , and of any changes it will make in the scope or
57 application of the unadopted rule. The agency shall file the
58 statement with the committee. The committee shall forward a copy
59 of the statement to the substantive committee with primary
60 oversight jurisdiction of the agency in each house of the
61 Legislature. The committee or the committee with primary
62 oversight jurisdiction may hold a hearing directed to the
63 statement of the agency. The committee holding the hearing may
64 recommend to the Legislature the introduction of legislation
65 making the rule a statutory standard or limiting or otherwise
66 modifying the authority of the agency.
67 (d) If the agency initiates rulemaking after the public
68 hearing provided for in paragraph (b), the agency shall publish
69 a notice of rule development within 30 days after the hearing
70 and file a notice of proposed rule within 180 days after the
71 notice of rule development unless, before the 180th day, the
72 agency publishes in the Florida Administrative Register a
73 statement explaining its reasons for not having filed the
74 notice. If rulemaking is initiated under this paragraph, the
75 agency may not rely on the unadopted rule unless the agency
76 publishes in the Florida Administrative Register a statement
77 explaining why rulemaking under paragraph (1)(a) was not
78 previously feasible or practicable before the public hearing.
79 Section 2. Section 120.55, Florida Statutes, is amended to
81 120.55 Publication.—
82 (1) The Department of State shall:
83 (a)1. Through a continuous revision and publication system,
84 compile and publish electronically, on a an Internet website
85 managed by the department, the “Florida Administrative Code.”
86 The Florida Administrative Code shall contain all rules adopted
87 by each agency, citing the grant of rulemaking authority and the
88 specific law implemented pursuant to which each rule was
89 adopted, all history notes as authorized in s. 120.545(7),
90 complete indexes to all rules contained in the code, and any
91 other material required or authorized by law or deemed useful by
92 the department. The electronic code shall display each rule
93 chapter currently in effect in browse mode and allow full text
94 search of the code and each rule chapter. The department may
95 contract with a publishing firm for a printed publication;
96 however, the department shall retain responsibility for the code
97 as provided in this section. The electronic publication shall be
98 the official compilation of the administrative rules of this
99 state. The Department of State shall retain the copyright over
100 the Florida Administrative Code.
101 2. Rules general in form but applicable to only one school
102 district, community college district, or county, or a part
103 thereof, or state university rules relating to internal
104 personnel or business and finance shall not be published in the
105 Florida Administrative Code. Exclusion from publication in the
106 Florida Administrative Code shall not affect the validity or
107 effectiveness of such rules.
108 3. At the beginning of the section of the code dealing with
109 an agency that files copies of its rules with the department,
110 the department shall publish the address and telephone number of
111 the executive offices of each agency, the manner by which the
112 agency indexes its rules, a listing of all rules of that agency
113 excluded from publication in the code, and a statement as to
114 where those rules may be inspected.
115 4. Forms shall not be published in the Florida
116 Administrative Code; but any form which an agency uses in its
117 dealings with the public, along with any accompanying
118 instructions, shall be filed with the committee before it is
119 used. Any form or instruction which meets the definition of
120 “rule” provided in s. 120.52 shall be incorporated by reference
121 into the appropriate rule. The reference shall specifically
122 state that the form is being incorporated by reference and shall
123 include the number, title, and effective date of the form and an
124 explanation of how the form may be obtained. Each form created
125 by an agency which is incorporated by reference in a rule notice
126 of which is given under s. 120.54(3)(a) after December 31, 2007,
127 must clearly display the number, title, and effective date of
128 the form and the number of the rule in which the form is
130 5. The department shall allow adopted rules and material
131 incorporated by reference to be filed in electronic form as
132 prescribed by department rule. When a rule is filed for adoption
133 with incorporated material in electronic form, the department’s
134 publication of the Florida Administrative Code on its Internet
135 website must contain a hyperlink from the incorporating
136 reference in the rule directly to that material. The department
137 may not allow hyperlinks from rules in the Florida
138 Administrative Code to any material other than that filed with
139 and maintained by the department, but may allow hyperlinks to
140 incorporated material maintained by the department from the
141 adopting agency’s website or other sites.
142 (b) Electronically publish on a an Internet website managed
143 by the department a continuous revision and publication entitled
144 the “Florida Administrative Register,” which shall serve as the
145 official publication and must contain:
146 1. All notices required by s. 120.54(2) and (3)(a)
147 120.54(3)(a), showing the text of all rules proposed for
149 2. All notices of public meetings, hearings, and workshops
150 conducted in accordance with s. 120.525, including a statement
151 of the manner in which a copy of the agenda may be obtained.
152 3. A notice of each request for authorization to amend or
153 repeal an existing uniform rule or for the adoption of new
154 uniform rules.
155 4. Notice of petitions for declaratory statements or
156 administrative determinations.
157 5. A summary of each objection to any rule filed by the
158 Administrative Procedures Committee.
159 6. A list of rules filed for adoption in the previous 7
161 7. A list of all rules filed for adoption pending
162 legislative ratification under s. 120.541(3). A rule shall be
163 removed from the list once notice of ratification or withdrawal
164 of the rule is received.
165 8. 6. Any other material required or authorized by law or
166 deemed useful by the department.
168 The department may contract with a publishing firm for a printed
169 publication of the Florida Administrative Register and make
170 copies available on an annual subscription basis.
171 (c) Prescribe by rule the style and form required for
172 rules, notices, and other materials submitted for filing.
173 (d) Charge each agency using the Florida Administrative
174 Register a space rate to cover the costs related to the Florida
175 Administrative Register and the Florida Administrative Code.
176 (e) Maintain a permanent record of all notices published in
177 the Florida Administrative Register.
178 (2) The Florida Administrative Register Internet website
179 must allow users to:
180 (a) Search for notices by type, publication date, rule
181 number, word, subject, and agency.
182 (b) Search a database that makes available all notices
183 published on the website for a period of at least 5 years.
184 (c) Subscribe to an automated e-mail notification of
185 selected notices to be sent out before or concurrently with
186 publication of the electronic Florida Administrative Register.
187 Such notification must include in the text of the e-mail a
188 summary of the content of each notice.
189 (d) View agency forms and other materials submitted to the
190 department in electronic form and incorporated by reference in
191 proposed rules.
192 (e) Comment on proposed rules.
193 (3) Publication of material required by paragraph (1)(b) on
194 the Florida Administrative Register Internet website does not
195 preclude publication of such material on an agency’s website or
196 by other means.
197 (4) Each agency shall provide copies of its rules upon
198 request, with citations to the grant of rulemaking authority and
199 the specific law implemented for each rule.
200 (5) Each agency that provides an e-mail notification
201 service to inform licensees or other registered recipients of
202 notices shall use that service to notify recipients of each
203 notice required under s. 120.54(2) and (3) and provide Internet
204 links to the appropriate rule page on the Secretary of State’s
205 website or Internet links to an agency website that contains the
206 proposed rule or final rule.
207 (6) (5) Any publication of a proposed rule promulgated by an
208 agency, whether published in the Florida Administrative Register
209 or elsewhere, shall include, along with the rule, the name of
210 the person or persons originating such rule, the name of the
211 agency head who approved the rule, and the date upon which the
212 rule was approved.
213 (7) (6) Access to the Florida Administrative Register
214 Internet website and its contents, including the e-mail
215 notification service, shall be free for the public.
216 (8) (7)(a) All fees and moneys collected by the Department
217 of State under this chapter shall be deposited in the Records
218 Management Trust Fund for the purpose of paying for costs
219 incurred by the department in carrying out this chapter.
220 (b) The unencumbered balance in the Records Management
221 Trust Fund for fees collected pursuant to this chapter may not
222 exceed $300,000 at the beginning of each fiscal year, and any
223 excess shall be transferred to the General Revenue Fund.
224 (9) The failure to comply with this section may not be
225 raised in a proceeding challenging the validity of a rule
226 pursuant to s. 120.52(8)(a).
227 Section 3. Subsection (1), paragraph (a) of subsection (2),
228 paragraph (a) of subsection (3), and subsection (4) of section
229 120.56, Florida Statutes, are amended to read:
230 120.56 Challenges to rules.—
231 (1) GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A
232 RULE OR A PROPOSED RULE.—
233 (a) Any person substantially affected by a rule or a
234 proposed rule may seek an administrative determination of the
235 invalidity of the rule on the ground that the rule is an invalid
236 exercise of delegated legislative authority.
237 (b) The petition challenging the validity of a proposed or
238 adopted rule under this section seeking an administrative
239 determination must state: with particularity
240 1. The particular provisions alleged to be invalid and a
241 statement with sufficient explanation of the facts or grounds
242 for the alleged invalidity. and
243 2. Facts sufficient to show that the petitioner person
244 challenging a rule is substantially affected by the challenged
245 adopted rule it, or that the person challenging a proposed rule
246 would be substantially affected by the proposed rule it.
247 (c) The petition shall be filed by electronic means with
248 the division which shall, immediately upon filing, forward by
249 electronic means copies to the agency whose rule is challenged,
250 the Department of State, and the committee. Within 10 days after
251 receiving the petition, the division director shall, if the
252 petition complies with the requirements of paragraph (b), assign
253 an administrative law judge who shall conduct a hearing within
254 30 days thereafter, unless the petition is withdrawn or a
255 continuance is granted by agreement of the parties or for good
256 cause shown. Evidence of good cause includes, but is not limited
257 to, written notice of an agency’s decision to modify or withdraw
258 the proposed rule or a written notice from the chair of the
259 committee stating that the committee will consider an objection
260 to the rule at its next scheduled meeting. The failure of an
261 agency to follow the applicable rulemaking procedures or
262 requirements set forth in this chapter shall be presumed to be
263 material; however, the agency may rebut this presumption by
264 showing that the substantial interests of the petitioner and the
265 fairness of the proceedings have not been impaired.
266 (d) Within 30 days after the hearing, the administrative
267 law judge shall render a decision and state the reasons for his
268 or her decision therefor in writing. The division shall
269 forthwith transmit by electronic means copies of the
270 administrative law judge’s decision to the agency, the
271 Department of State, and the committee.
272 (e) Hearings held under this section shall be de novo in
273 nature. The standard of proof shall be the preponderance of the
274 evidence. Hearings shall be conducted in the same manner as
275 provided by ss. 120.569 and 120.57, except that the
276 administrative law judge’s order shall be final agency action.
277 The petitioner and the agency whose rule is challenged shall be
278 adverse parties. Other substantially affected persons may join
279 the proceedings as intervenors on appropriate terms which shall
280 not unduly delay the proceedings. Failure to proceed under this
281 section does shall not constitute failure to exhaust
282 administrative remedies.
283 (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.—
284 (a) A substantially affected person may seek an
285 administrative determination of the invalidity of a proposed
286 rule by filing a petition alleging the invalidity of a proposed
287 rule shall be filed seeking such a determination with the
288 division within 21 days after the date of publication of the
289 notice required by s. 120.54(3)(a); within 10 days after the
290 final public hearing is held on the proposed rule as provided by
291 s. 120.54(3)(e)2.; within 20 days after the statement of
292 estimated regulatory costs or revised statement of estimated
293 regulatory costs, if applicable, has been prepared and made
294 available as provided in s. 120.541(1)(d); or within 20 days
295 after the date of publication of the notice required by s.
296 120.54(3)(d). The petition must state with particularity the
297 objections to the proposed rule and the reasons that the
298 proposed rule is an invalid exercise of delegated legislative
299 authority. The petitioner has the burden to prove by a
300 preponderance of the evidence that it would be substantially
301 affected by the proposed rule of going forward. The agency then
302 has the burden to prove by a preponderance of the evidence that
303 the proposed rule is not an invalid exercise of delegated
304 legislative authority as to the objections raised. A person who
305 is substantially affected by a change in the proposed rule may
306 seek a determination of the validity of such change. A person
307 who is not substantially affected by the proposed rule as
308 initially noticed, but who is substantially affected by the rule
309 as a result of a change, may challenge any provision of the
310 resulting proposed rule and is not limited to challenging the
311 change to the proposed rule.
312 (3) CHALLENGING EXISTING RULES IN EFFECT; SPECIAL
314 (a) A petition alleging substantially affected person may
315 seek an administrative determination of the invalidity of an
316 existing rule may be filed at any time during which the
317 existence of the rule is in effect. The petitioner has the a
318 burden of proving by a preponderance of the evidence that the
319 existing rule is an invalid exercise of delegated legislative
320 authority as to the objections raised.
321 (4) CHALLENGING AGENCY STATEMENTS DEFINED AS UNADOPTED
322 RULES; SPECIAL PROVISIONS.—
323 (a) Any person substantially affected by an agency
324 statement that is an unadopted rule may seek an administrative
325 determination that the statement violates s. 120.54(1)(a). The
326 petition shall include the text of the statement or a
327 description of the statement and shall state with particularity
328 facts sufficient to show that the statement constitutes an
329 unadopted a rule under s. 120.52 and that the agency has not
330 adopted the statement by the rulemaking procedure provided by s.
332 (b) The administrative law judge may extend the hearing
333 date beyond 30 days after assignment of the case for good cause.
334 Upon notification to the administrative law judge provided
335 before the final hearing that the agency has published a notice
336 of rulemaking under s. 120.54(3), such notice shall
337 automatically operate as a stay of proceedings pending adoption
338 of the statement as a rule. The administrative law judge may
339 vacate the stay for good cause shown. A stay of proceedings
340 pending rulemaking shall remain in effect so long as the agency
341 is proceeding expeditiously and in good faith to adopt the
342 statement as a rule.
343 (c) If a hearing is held and the petitioner proves the
344 allegations of the petition, the agency shall have the burden of
345 proving that rulemaking is not feasible or not practicable under
346 s. 120.54(1)(a).
347 (d) (c) The administrative law judge may determine whether
348 all or part of a statement violates s. 120.54(1)(a). The
349 decision of the administrative law judge shall constitute a
350 final order. The division shall transmit a copy of the final
351 order to the Department of State and the committee. The
352 Department of State shall publish notice of the final order in
353 the first available issue of the Florida Administrative
355 (e) (d) If an administrative law judge enters a final order
356 that all or part of an unadopted rule agency statement violates
357 s. 120.54(1)(a), the agency must immediately discontinue all
358 reliance upon the unadopted rule statement or any substantially
359 similar statement as a basis for agency action.
360 (f) (e) If proposed rules addressing the challenged
361 unadopted rule statement are determined to be an invalid
362 exercise of delegated legislative authority as defined in s.
363 120.52(8)(b)-(f), the agency must immediately discontinue
364 reliance upon on the unadopted rule statement and any
365 substantially similar statement until rules addressing the
366 subject are properly adopted, and the administrative law judge
367 shall enter a final order to that effect.
368 (g) (f) All proceedings to determine a violation of s.
369 120.54(1)(a) shall be brought pursuant to this subsection. A
370 proceeding pursuant to this subsection may be consolidated with
371 a proceeding under subsection (3) or under any other section of
372 this chapter. This paragraph does not prevent a party whose
373 substantial interests have been determined by an agency action
374 from bringing a proceeding pursuant to s. 120.57(1)(e).
375 Section 4. Paragraphs (e) and (h) of subsection (1) and
376 subsection (2) of section 120.57, Florida Statutes, are amended
377 to read:
378 120.57 Additional procedures for particular cases.—
379 (1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING
380 DISPUTED ISSUES OF MATERIAL FACT.—
381 (e)1. An agency or an administrative law judge may not base
382 agency action that determines the substantial interests of a
383 party on an unadopted rule or a rule that is an invalid exercise
384 of delegated legislative authority. The administrative law judge
385 shall determine whether an agency statement constitutes an
386 unadopted rule. This subparagraph does not preclude application
387 of valid adopted rules and applicable provisions of law to the
389 2. In a matter initiated as a result of agency action
390 proposing to determine the substantial interests of a party, the
391 party’s timely petition for hearing may challenge the proposed
392 agency action based on a rule that is an invalid exercise of
393 delegated legislative authority or based on an alleged unadopted
394 rule. For challenges brought under this subparagraph:
395 a. The challenge may be pled as a defense using the
396 procedures set forth in s. 120.56(1).
397 b. Section 120.56(3)(a) applies to a challenge alleging
398 that a rule is an invalid exercise of delegated legislative
400 c. Section 120.56(4)(c) applies to a challenge alleging an
401 unadopted rule.
402 d. This subparagraph does not preclude the consolidation of
403 any proceeding under s. 120.56 with any proceeding under this
405 3. 2. Notwithstanding subparagraph 1., if an agency
406 demonstrates that the statute being implemented directs it to
407 adopt rules, that the agency has not had time to adopt those
408 rules because the requirement was so recently enacted, and that
409 the agency has initiated rulemaking and is proceeding
410 expeditiously and in good faith to adopt the required rules,
411 then the agency’s action may be based upon those unadopted rules
412 if , subject to de novo review by the administrative law judge
413 determines that rulemaking is neither feasible nor practicable
414 and the unadopted rules would not constitute an invalid exercise
415 of delegated legislative authority if adopted as rules. An
416 unadopted rule The agency action shall not be presumed valid or
417 invalid. The agency must demonstrate that the unadopted rule:
418 a. Is within the powers, functions, and duties delegated by
419 the Legislature or, if the agency is operating pursuant to
420 authority vested in the agency by derived from the State
421 Constitution, is within that authority;
422 b. Does not enlarge, modify, or contravene the specific
423 provisions of law implemented;
424 c. Is not vague, establishes adequate standards for agency
425 decisions, or does not vest unbridled discretion in the agency;
426 d. Is not arbitrary or capricious. A rule is arbitrary if
427 it is not supported by logic or the necessary facts; a rule is
428 capricious if it is adopted without thought or reason or is
430 e. Is not being applied to the substantially affected party
431 without due notice; and
432 f. Does not impose excessive regulatory costs on the
433 regulated person, county, or city.
434 4. 3. The recommended and final orders in any proceeding
435 shall be governed by the provisions of paragraphs (k) and (l),
436 except that the administrative law judge’s determination
437 regarding an unadopted rule under subparagraph 1. or
438 subparagraph 2. shall not be rejected by the agency unless the
439 agency first determines from a review of the complete record,
440 and states with particularity in the order, that such
441 determination is clearly erroneous or does not comply with
442 essential requirements of law. In any proceeding for review
443 under s. 120.68, if the court finds that the agency’s rejection
444 of the determination regarding the unadopted rule does not
445 comport with the provisions of this subparagraph, the agency
446 action shall be set aside and the court shall award to the
447 prevailing party the reasonable costs and a reasonable attorney
448 attorney’s fee for the initial proceeding and the proceeding for
450 5. A petitioner may pursue a separate, collateral challenge
451 under s. 120.56 even if an adequate remedy exists through a
452 proceeding under this section. The administrative law judge may
453 consolidate the proceedings.
454 (h) Any party to a proceeding in which an administrative
455 law judge of the Division of Administrative Hearings has final
456 order authority may move for a summary final order when there is
457 no genuine issue as to any material fact. A summary final order
458 shall be rendered if the administrative law judge determines
459 from the pleadings, depositions, answers to interrogatories, and
460 admissions on file, together with affidavits, if any, that no
461 genuine issue as to any material fact exists and that the moving
462 party is entitled as a matter of law to the entry of a final
463 order. A summary final order shall consist of findings of fact,
464 if any, conclusions of law, a disposition or penalty, if
465 applicable, and any other information required by law to be
466 contained in the final order.
467 (2) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS NOT
468 INVOLVING DISPUTED ISSUES OF MATERIAL FACT.—In any case to which
469 subsection (1) does not apply:
470 (a) The agency shall:
471 1. Give reasonable notice to affected persons of the action
472 of the agency, whether proposed or already taken, or of its
473 decision to refuse action, together with a summary of the
474 factual, legal, and policy grounds therefor.
475 2. Give parties or their counsel the option, at a
476 convenient time and place, to present to the agency or hearing
477 officer written or oral evidence in opposition to the action of
478 the agency or to its refusal to act, or a written statement
479 challenging the grounds upon which the agency has chosen to
480 justify its action or inaction.
481 3. If the objections of the parties are overruled, provide
482 a written explanation within 7 days.
483 (b) An agency may not base agency action that determines
484 the substantial interests of a party on an unadopted rule or a
485 rule that is an invalid exercise of delegated legislative
487 (c) (b) The record shall only consist of:
488 1. The notice and summary of grounds.
489 2. Evidence received.
490 3. All written statements submitted.
491 4. Any decision overruling objections.
492 5. All matters placed on the record after an ex parte
494 6. The official transcript.
495 7. Any decision, opinion, order, or report by the presiding
497 Section 5. Subsections (1) and (9) of section 120.68,
498 Florida Statutes, are amended to read:
499 120.68 Judicial review.—
500 (1)(a) A party who is adversely affected by final agency
501 action is entitled to judicial review.
502 (b) A preliminary, procedural, or intermediate order of the
503 agency or of an administrative law judge of the Division of
504 Administrative Hearings is immediately reviewable if review of
505 the final agency decision would not provide an adequate remedy.
506 (9) A No petition challenging an agency rule as an invalid
507 exercise of delegated legislative authority shall not be
508 instituted pursuant to this section, except to review an order
509 entered pursuant to a proceeding under s. 120.56, s.
510 120.57(1)(e)1., or s. 120.57(2)(b) or an agency’s findings of
511 immediate danger, necessity, and procedural fairness
512 prerequisite to the adoption of an emergency rule pursuant to s.
513 120.54(4), unless the sole issue presented by the petition is
514 the constitutionality of a rule and there are no disputed issues
515 of fact.
516 Section 6. Section 120.695, Florida Statutes, is amended to
518 120.695 Notice of noncompliance; designation of minor
519 violation of rules.—
520 (1) It is the policy of the state that the purpose of
521 regulation is to protect the public by attaining compliance with
522 the policies established by the Legislature. Fines and other
523 penalties may be provided in order to assure compliance;
524 however, the collection of fines and the imposition of penalties
525 are intended to be secondary to the primary goal of attaining
526 compliance with an agency’s rules. It is the intent of the
527 Legislature that an agency charged with enforcing rules shall
528 issue a notice of noncompliance as its first response to a minor
529 violation of a rule in any instance in which it is reasonable to
530 assume that the violator was unaware of the rule or unclear as
531 to how to comply with it.
532 (2)(a) Each agency shall issue a notice of noncompliance as
533 a first response to a minor violation of a rule. A “notice of
534 noncompliance” is a notification by the agency charged with
535 enforcing the rule issued to the person or business subject to
536 the rule. A notice of noncompliance may not be accompanied with
537 a fine or other disciplinary penalty. It must identify the
538 specific rule that is being violated, provide information on how
539 to comply with the rule, and specify a reasonable time for the
540 violator to comply with the rule. A rule is agency action that
541 regulates a business, occupation, or profession, or regulates a
542 person operating a business, occupation, or profession, and
543 that, if not complied with, may result in a disciplinary
545 (b) Each agency shall review all of its rules and designate
546 those for which a violation would be a minor violation and for
547 which a notice of noncompliance must be the first enforcement
548 action taken against a person or business subject to regulation.
549 A violation of a rule is a minor violation if it does not result
550 in economic or physical harm to a person or adversely affect the
551 public health, safety, or welfare or create a significant threat
552 of such harm. If an agency under the direction of a cabinet
553 officer mails to each licensee a notice of the designated rules
554 at the time of licensure and at least annually thereafter, the
555 provisions of paragraph (a) may be exercised at the discretion
556 of the agency. Such notice shall include a subject-matter index
557 of the rules and information on how the rules may be obtained.
558 (c)1. No later than June 30, 2017, and after such date
559 within 3 months after any request of the rules ombudsman in the
560 Executive Office of the Governor, The agency’s review and
561 designation must be completed by December 1, 1995; each agency
562 shall review under the direction of the Governor shall make a
563 report to the Governor, and each agency under the joint
564 direction of the Governor and Cabinet shall report to the
565 Governor and Cabinet by January 1, 1996, on which of its rules
566 and certify to the President of the Senate, the Speaker of the
567 House of Representatives, the committee, and the rules ombudsman
568 those rules that have been designated as rules the violation of
569 which would be a minor violation under paragraph (b), consistent
570 with the legislative intent stated in subsection (1).
571 2. Beginning July 1, 2017, each agency shall:
572 a. Publish all rules that the agency has designated as
573 rules the violation of which would be a minor violation, either
574 as a complete list on the agency’s website or by incorporation
575 of the designations in the agency’s disciplinary guidelines
576 adopted as a rule.
577 b. Ensure that all investigative and enforcement personnel
578 are knowledgeable about the agency’s designations under this
580 3. For each rule filed for adoption, the agency head shall
581 certify whether any part of the rule is designated as a rule the
582 violation of which would be a minor violation and shall update
583 the listing required by sub-subparagraph 2.a.
584 (d) The Governor or the Governor and Cabinet, as
585 appropriate pursuant to paragraph (c), may evaluate the review
586 and designation effects of each agency subject to the direction
587 and supervision of such authority and may direct apply a
588 different designation than that applied by such the agency.
589 (e) Notwithstanding s. 120.52(1)(a), this section does not
590 apply to:
591 1. The Department of Corrections;
592 2. Educational units;
593 3. The regulation of law enforcement personnel; or
594 4. The regulation of teachers.
595 (f) Designation pursuant to this section is not subject to
596 challenge under this chapter.
597 Section 7. Paragraph (a) of subsection (4) of section
598 120.595, Florida Statutes, is amended to read:
599 120.595 Attorney’s fees.—
600 (4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
602 (a) If the appellate court or administrative law judge
603 determines that all or part of an agency statement violates s.
604 120.54(1)(a), or that the agency must immediately discontinue
605 reliance on the statement and any substantially similar
606 statement pursuant to s. 120.56(4)(f) s. 120.56(4)(e), a
607 judgment or order shall be entered against the agency for
608 reasonable costs and reasonable attorney’s fees, unless the
609 agency demonstrates that the statement is required by the
610 Federal Government to implement or retain a delegated or
611 approved program or to meet a condition to receipt of federal
613 Section 8. This act shall take effect July 1, 2016.