Florida Senate - 2016                       CS for CS for SB 372
       By the Committees on Appropriations; and Judiciary; and Senator
       576-03012-16                                           2016372c2
    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. 403.8141,
   39         F.S.; providing that administrative challenges to
   40         proposed regulatory permits related to special events
   41         are subject to certain summary hearing provisions;
   42         amending s. 120.595, F.S.; conforming a cross
   43         reference; providing an effective date.
   45  Be It Enacted by the Legislature of the State of Florida:
   47         Section 1. Paragraph (c) of subsection (7) of section
   48  120.54, Florida Statutes, is amended, and paragraph (d) is added
   49  to that subsection, to read:
   50         120.54 Rulemaking.—
   52         (c) If the agency does not initiate rulemaking or otherwise
   53  comply with the requested action within 30 days after following
   54  the public hearing provided for in by paragraph (b), if the
   55  agency does not initiate rulemaking or otherwise comply with the
   56  requested action, the agency shall publish in the Florida
   57  Administrative Register a statement of its reasons for not
   58  initiating rulemaking or otherwise complying with the requested
   59  action, and of any changes it will make in the scope or
   60  application of the unadopted rule. The agency shall file the
   61  statement with the committee. The committee shall forward a copy
   62  of the statement to the substantive committee with primary
   63  oversight jurisdiction of the agency in each house of the
   64  Legislature. The committee or the committee with primary
   65  oversight jurisdiction may hold a hearing directed to the
   66  statement of the agency. The committee holding the hearing may
   67  recommend to the Legislature the introduction of legislation
   68  making the rule a statutory standard or limiting or otherwise
   69  modifying the authority of the agency.
   70         (d) If the agency initiates rulemaking after the public
   71  hearing provided for in paragraph (b), the agency shall publish
   72  a notice of rule development within 30 days after the hearing
   73  and file a notice of proposed rule within 180 days after the
   74  notice of rule development unless, before the 180th day, the
   75  agency publishes in the Florida Administrative Register a
   76  statement explaining its reasons for not having filed the
   77  notice. If rulemaking is initiated under this paragraph, the
   78  agency may not rely on the unadopted rule unless the agency
   79  publishes in the Florida Administrative Register a statement
   80  explaining why rulemaking under paragraph (1)(a) is not feasible
   81  or practicable until the conclusion of the rulemaking
   82  proceeding.
   83         Section 2. Section 120.55, Florida Statutes, is amended to
   84  read:
   85         120.55 Publication.—
   86         (1) The Department of State shall:
   87         (a)1. Through a continuous revision and publication system,
   88  compile and publish electronically, on a an Internet website
   89  managed by the department, the “Florida Administrative Code.”
   90  The Florida Administrative Code shall contain all rules adopted
   91  by each agency, citing the grant of rulemaking authority and the
   92  specific law implemented pursuant to which each rule was
   93  adopted, all history notes as authorized in s. 120.545(7),
   94  complete indexes to all rules contained in the code, and any
   95  other material required or authorized by law or deemed useful by
   96  the department. The electronic code shall display each rule
   97  chapter currently in effect in browse mode and allow full text
   98  search of the code and each rule chapter. The department may
   99  contract with a publishing firm for a printed publication;
  100  however, the department shall retain responsibility for the code
  101  as provided in this section. The electronic publication shall be
  102  the official compilation of the administrative rules of this
  103  state. The Department of State shall retain the copyright over
  104  the Florida Administrative Code.
  105         2. Rules general in form but applicable to only one school
  106  district, community college district, or county, or a part
  107  thereof, or state university rules relating to internal
  108  personnel or business and finance shall not be published in the
  109  Florida Administrative Code. Exclusion from publication in the
  110  Florida Administrative Code shall not affect the validity or
  111  effectiveness of such rules.
  112         3. At the beginning of the section of the code dealing with
  113  an agency that files copies of its rules with the department,
  114  the department shall publish the address and telephone number of
  115  the executive offices of each agency, the manner by which the
  116  agency indexes its rules, a listing of all rules of that agency
  117  excluded from publication in the code, and a statement as to
  118  where those rules may be inspected.
  119         4. Forms shall not be published in the Florida
  120  Administrative Code; but any form which an agency uses in its
  121  dealings with the public, along with any accompanying
  122  instructions, shall be filed with the committee before it is
  123  used. Any form or instruction which meets the definition of
  124  “rule” provided in s. 120.52 shall be incorporated by reference
  125  into the appropriate rule. The reference shall specifically
  126  state that the form is being incorporated by reference and shall
  127  include the number, title, and effective date of the form and an
  128  explanation of how the form may be obtained. Each form created
  129  by an agency which is incorporated by reference in a rule notice
  130  of which is given under s. 120.54(3)(a) after December 31, 2007,
  131  must clearly display the number, title, and effective date of
  132  the form and the number of the rule in which the form is
  133  incorporated.
  134         5. The department shall allow adopted rules and material
  135  incorporated by reference to be filed in electronic form as
  136  prescribed by department rule. When a rule is filed for adoption
  137  with incorporated material in electronic form, the department’s
  138  publication of the Florida Administrative Code on its Internet
  139  website must contain a hyperlink from the incorporating
  140  reference in the rule directly to that material. The department
  141  may not allow hyperlinks from rules in the Florida
  142  Administrative Code to any material other than that filed with
  143  and maintained by the department, but may allow hyperlinks to
  144  incorporated material maintained by the department from the
  145  adopting agency’s website or other sites.
  146         (b) Electronically publish on a an Internet website managed
  147  by the department a continuous revision and publication entitled
  148  the “Florida Administrative Register,” which shall serve as the
  149  official publication and must contain:
  150         1. All notices required by s. 120.54(2) and (3)(a)
  151  120.54(3)(a), showing the text of all rules proposed for
  152  consideration.
  153         2. All notices of public meetings, hearings, and workshops
  154  conducted in accordance with s. 120.525, including a statement
  155  of the manner in which a copy of the agenda may be obtained.
  156         3. A notice of each request for authorization to amend or
  157  repeal an existing uniform rule or for the adoption of new
  158  uniform rules.
  159         4. Notice of petitions for declaratory statements or
  160  administrative determinations.
  161         5. A summary of each objection to any rule filed by the
  162  Administrative Procedures Committee.
  163         6. A list of rules filed for adoption in the previous 7
  164  days.
  165         7. A list of all rules filed for adoption pending
  166  legislative ratification under s. 120.541(3). A rule shall be
  167  removed from the list once notice of ratification or withdrawal
  168  of the rule is received.
  169         8.6. Any other material required or authorized by law or
  170  deemed useful by the department.
  172  The department may contract with a publishing firm for a printed
  173  publication of the Florida Administrative Register and make
  174  copies available on an annual subscription basis.
  175         (c) Prescribe by rule the style and form required for
  176  rules, notices, and other materials submitted for filing.
  177         (d) Charge each agency using the Florida Administrative
  178  Register a space rate to cover the costs related to the Florida
  179  Administrative Register and the Florida Administrative Code.
  180         (e) Maintain a permanent record of all notices published in
  181  the Florida Administrative Register.
  182         (2) The Florida Administrative Register Internet website
  183  must allow users to:
  184         (a) Search for notices by type, publication date, rule
  185  number, word, subject, and agency.
  186         (b) Search a database that makes available all notices
  187  published on the website for a period of at least 5 years.
  188         (c) Subscribe to an automated e-mail notification of
  189  selected notices to be sent out before or concurrently with
  190  publication of the electronic Florida Administrative Register.
  191  Such notification must include in the text of the e-mail a
  192  summary of the content of each notice.
  193         (d) View agency forms and other materials submitted to the
  194  department in electronic form and incorporated by reference in
  195  proposed rules.
  196         (e) Comment on proposed rules.
  197         (3) Publication of material required by paragraph (1)(b) on
  198  the Florida Administrative Register Internet website does not
  199  preclude publication of such material on an agency’s website or
  200  by other means.
  201         (4) Each agency shall provide copies of its rules upon
  202  request, with citations to the grant of rulemaking authority and
  203  the specific law implemented for each rule.
  204         (5) Each agency that provides an e-mail notification
  205  service to inform licensees or other registered recipients of
  206  notices shall use that service to notify recipients of each
  207  notice required under s. 120.54(2) and (3) and provide Internet
  208  links to the appropriate rule page on the Secretary of State’s
  209  website or Internet links to an agency website that contains the
  210  proposed rule or final rule.
  211         (6)(5) Any publication of a proposed rule promulgated by an
  212  agency, whether published in the Florida Administrative Register
  213  or elsewhere, shall include, along with the rule, the name of
  214  the person or persons originating such rule, the name of the
  215  agency head who approved the rule, and the date upon which the
  216  rule was approved.
  217         (7)(6) Access to the Florida Administrative Register
  218  Internet website and its contents, including the e-mail
  219  notification service, shall be free for the public.
  220         (8)(7)(a) All fees and moneys collected by the Department
  221  of State under this chapter shall be deposited in the Records
  222  Management Trust Fund for the purpose of paying for costs
  223  incurred by the department in carrying out this chapter.
  224         (b) The unencumbered balance in the Records Management
  225  Trust Fund for fees collected pursuant to this chapter may not
  226  exceed $300,000 at the beginning of each fiscal year, and any
  227  excess shall be transferred to the General Revenue Fund.
  228         (9) The failure to comply with this section may not be
  229  raised in a proceeding challenging the validity of a rule
  230  pursuant to s. 120.52(8)(a).
  231         Section 3. Subsection (1), paragraph (a) of subsection (2),
  232  paragraph (a) of subsection (3), and subsection (4) of section
  233  120.56, Florida Statutes, are amended to read:
  234         120.56 Challenges to rules.—
  237         (a) Any person substantially affected by a rule or a
  238  proposed rule may seek an administrative determination of the
  239  invalidity of the rule on the ground that the rule is an invalid
  240  exercise of delegated legislative authority.
  241         (b) The petition challenging the validity of a proposed or
  242  adopted rule under this section seeking an administrative
  243  determination must state: with particularity
  244         1. The particular provisions alleged to be invalid and a
  245  statement with sufficient explanation of the facts or grounds
  246  for the alleged invalidity. and
  247         2. Facts sufficient to show that the petitioner person
  248  challenging a rule is substantially affected by the challenged
  249  adopted rule it, or that the person challenging a proposed rule
  250  would be substantially affected by the proposed rule it.
  251         (c) The petition shall be filed by electronic means with
  252  the division which shall, immediately upon filing, forward by
  253  electronic means copies to the agency whose rule is challenged,
  254  the Department of State, and the committee. Within 10 days after
  255  receiving the petition, the division director shall, if the
  256  petition complies with the requirements of paragraph (b), assign
  257  an administrative law judge who shall conduct a hearing within
  258  30 days thereafter, unless the petition is withdrawn or a
  259  continuance is granted by agreement of the parties or for good
  260  cause shown. Evidence of good cause includes, but is not limited
  261  to, written notice of an agency’s decision to modify or withdraw
  262  the proposed rule or a written notice from the chair of the
  263  committee stating that the committee will consider an objection
  264  to the rule at its next scheduled meeting. The failure of an
  265  agency to follow the applicable rulemaking procedures or
  266  requirements set forth in this chapter shall be presumed to be
  267  material; however, the agency may rebut this presumption by
  268  showing that the substantial interests of the petitioner and the
  269  fairness of the proceedings have not been impaired.
  270         (d) Within 30 days after the hearing, the administrative
  271  law judge shall render a decision and state the reasons for his
  272  or her decision therefor in writing. The division shall
  273  forthwith transmit by electronic means copies of the
  274  administrative law judge’s decision to the agency, the
  275  Department of State, and the committee.
  276         (e) Hearings held under this section shall be de novo in
  277  nature. The standard of proof shall be the preponderance of the
  278  evidence. Hearings shall be conducted in the same manner as
  279  provided by ss. 120.569 and 120.57, except that the
  280  administrative law judge’s order shall be final agency action.
  281  The petitioner and the agency whose rule is challenged shall be
  282  adverse parties. Other substantially affected persons may join
  283  the proceedings as intervenors on appropriate terms which shall
  284  not unduly delay the proceedings. Failure to proceed under this
  285  section does shall not constitute failure to exhaust
  286  administrative remedies.
  288         (a) A substantially affected person may seek an
  289  administrative determination of the invalidity of a proposed
  290  rule by filing a petition alleging the invalidity of a proposed
  291  rule shall be filed seeking such a determination with the
  292  division within 21 days after the date of publication of the
  293  notice required by s. 120.54(3)(a); within 10 days after the
  294  final public hearing is held on the proposed rule as provided by
  295  s. 120.54(3)(e)2.; within 20 days after the statement of
  296  estimated regulatory costs or revised statement of estimated
  297  regulatory costs, if applicable, has been prepared and made
  298  available as provided in s. 120.541(1)(d); or within 20 days
  299  after the date of publication of the notice required by s.
  300  120.54(3)(d). The petition must state with particularity the
  301  objections to the proposed rule and the reasons that the
  302  proposed rule is an invalid exercise of delegated legislative
  303  authority. The petitioner has the burden to prove by a
  304  preponderance of the evidence that it would be substantially
  305  affected by the proposed rule of going forward. The agency then
  306  has the burden to prove by a preponderance of the evidence that
  307  the proposed rule is not an invalid exercise of delegated
  308  legislative authority as to the objections raised. A person who
  309  is substantially affected by a change in the proposed rule may
  310  seek a determination of the validity of such change. A person
  311  who is not substantially affected by the proposed rule as
  312  initially noticed, but who is substantially affected by the rule
  313  as a result of a change, may challenge any provision of the
  314  resulting proposed rule and is not limited to challenging the
  315  change to the proposed rule.
  318         (a) A petition alleging substantially affected person may
  319  seek an administrative determination of the invalidity of an
  320  existing rule may be filed at any time during which the
  321  existence of the rule is in effect. The petitioner has the a
  322  burden of proving by a preponderance of the evidence that the
  323  existing rule is an invalid exercise of delegated legislative
  324  authority as to the objections raised.
  327         (a) Any person substantially affected by an agency
  328  statement that is an unadopted rule may seek an administrative
  329  determination that the statement violates s. 120.54(1)(a). The
  330  petition shall include the text of the statement or a
  331  description of the statement and shall state with particularity
  332  facts sufficient to show that the statement constitutes an
  333  unadopted a rule under s. 120.52 and that the agency has not
  334  adopted the statement by the rulemaking procedure provided by s.
  335  120.54.
  336         (b) The administrative law judge may extend the hearing
  337  date beyond 30 days after assignment of the case for good cause.
  338  Upon notification to the administrative law judge provided
  339  before the final hearing that the agency has published a notice
  340  of rulemaking under s. 120.54(3), such notice shall
  341  automatically operate as a stay of proceedings pending adoption
  342  of the statement as a rule. The administrative law judge may
  343  vacate the stay for good cause shown. A stay of proceedings
  344  pending rulemaking shall remain in effect so long as the agency
  345  is proceeding expeditiously and in good faith to adopt the
  346  statement as a rule.
  347         (c) If a hearing is held and the petitioner proves the
  348  allegations of the petition, the agency shall have the burden of
  349  proving that rulemaking is not feasible or not practicable under
  350  s. 120.54(1)(a).
  351         (d)(c) The administrative law judge may determine whether
  352  all or part of a statement violates s. 120.54(1)(a). The
  353  decision of the administrative law judge shall constitute a
  354  final order. The division shall transmit a copy of the final
  355  order to the Department of State and the committee. The
  356  Department of State shall publish notice of the final order in
  357  the first available issue of the Florida Administrative
  358  Register.
  359         (e)(d) If an administrative law judge enters a final order
  360  that all or part of an unadopted rule agency statement violates
  361  s. 120.54(1)(a), the agency must immediately discontinue all
  362  reliance upon the unadopted rule statement or any substantially
  363  similar statement as a basis for agency action.
  364         (f)(e) If proposed rules addressing the challenged
  365  unadopted rule statement are determined to be an invalid
  366  exercise of delegated legislative authority as defined in s.
  367  120.52(8)(b)-(f), the agency must immediately discontinue
  368  reliance upon on the unadopted rule statement and any
  369  substantially similar statement until rules addressing the
  370  subject are properly adopted, and the administrative law judge
  371  shall enter a final order to that effect.
  372         (g)(f) All proceedings to determine a violation of s.
  373  120.54(1)(a) shall be brought pursuant to this subsection. A
  374  proceeding pursuant to this subsection may be consolidated with
  375  a proceeding under subsection (3) or under any other section of
  376  this chapter. This paragraph does not prevent a party whose
  377  substantial interests have been determined by an agency action
  378  from bringing a proceeding pursuant to s. 120.57(1)(e).
  379         Section 4. Paragraphs (e) and (h) of subsection (1) and
  380  subsection (2) of section 120.57, Florida Statutes, are amended
  381  to read:
  382         120.57 Additional procedures for particular cases.—
  385         (e)1. An agency or an administrative law judge may not base
  386  agency action that determines the substantial interests of a
  387  party on an unadopted rule or a rule that is an invalid exercise
  388  of delegated legislative authority. The administrative law judge
  389  shall determine whether an agency statement constitutes an
  390  unadopted rule. This subparagraph does not preclude application
  391  of valid adopted rules and applicable provisions of law to the
  392  facts.
  393         2. In a matter initiated as a result of agency action
  394  proposing to determine the substantial interests of a party, the
  395  party’s timely petition for hearing may challenge the proposed
  396  agency action based on a rule that is an invalid exercise of
  397  delegated legislative authority or based on an alleged unadopted
  398  rule. For challenges brought under this subparagraph:
  399         a. The challenge may be pled as a defense using the
  400  procedures set forth in s. 120.56(1)(b).
  401         b. Section 120.56(3)(a) applies to a challenge alleging
  402  that a rule is an invalid exercise of delegated legislative
  403  authority.
  404         c. Section 120.56(4)(c) applies to a challenge alleging an
  405  unadopted rule.
  406         d. This subparagraph does not preclude the consolidation of
  407  any proceeding under s. 120.56 with any proceeding under this
  408  paragraph.
  409         3.2. Notwithstanding subparagraph 1., if an agency
  410  demonstrates that the statute being implemented directs it to
  411  adopt rules, that the agency has not had time to adopt those
  412  rules because the requirement was so recently enacted, and that
  413  the agency has initiated rulemaking and is proceeding
  414  expeditiously and in good faith to adopt the required rules,
  415  then the agency’s action may be based upon those unadopted rules
  416  if, subject to de novo review by the administrative law judge
  417  determines that rulemaking is neither feasible nor practicable
  418  and the unadopted rules would not constitute an invalid exercise
  419  of delegated legislative authority if adopted as rules. An
  420  unadopted rule The agency action shall not be presumed valid or
  421  invalid. The agency must demonstrate that the unadopted rule:
  422         a. Is within the powers, functions, and duties delegated by
  423  the Legislature or, if the agency is operating pursuant to
  424  authority vested in the agency by derived from the State
  425  Constitution, is within that authority;
  426         b. Does not enlarge, modify, or contravene the specific
  427  provisions of law implemented;
  428         c. Is not vague, establishes adequate standards for agency
  429  decisions, or does not vest unbridled discretion in the agency;
  430         d. Is not arbitrary or capricious. A rule is arbitrary if
  431  it is not supported by logic or the necessary facts; a rule is
  432  capricious if it is adopted without thought or reason or is
  433  irrational;
  434         e. Is not being applied to the substantially affected party
  435  without due notice; and
  436         f. Does not impose excessive regulatory costs on the
  437  regulated person, county, or city.
  438         4.3. The recommended and final orders in any proceeding
  439  shall be governed by the provisions of paragraphs (k) and (l),
  440  except that the administrative law judge’s determination
  441  regarding an unadopted rule under subparagraph 1. or
  442  subparagraph 2. shall not be rejected by the agency unless the
  443  agency first determines from a review of the complete record,
  444  and states with particularity in the order, that such
  445  determination is clearly erroneous or does not comply with
  446  essential requirements of law. In any proceeding for review
  447  under s. 120.68, if the court finds that the agency’s rejection
  448  of the determination regarding the unadopted rule does not
  449  comport with the provisions of this subparagraph, the agency
  450  action shall be set aside and the court shall award to the
  451  prevailing party the reasonable costs and a reasonable attorney
  452  attorney’s fee for the initial proceeding and the proceeding for
  453  review.
  454         5. A petitioner may pursue a separate, collateral challenge
  455  under s. 120.56 even if an adequate remedy exists through a
  456  proceeding under this section. The administrative law judge may
  457  consolidate the proceedings.
  458         (h) Any party to a proceeding in which an administrative
  459  law judge of the Division of Administrative Hearings has final
  460  order authority may move for a summary final order when there is
  461  no genuine issue as to any material fact. A summary final order
  462  shall be rendered if the administrative law judge determines
  463  from the pleadings, depositions, answers to interrogatories, and
  464  admissions on file, together with affidavits, if any, that no
  465  genuine issue as to any material fact exists and that the moving
  466  party is entitled as a matter of law to the entry of a final
  467  order. A summary final order shall consist of findings of fact,
  468  if any, conclusions of law, a disposition or penalty, if
  469  applicable, and any other information required by law to be
  470  contained in the final order.
  473  subsection (1) does not apply:
  474         (a) The agency shall:
  475         1. Give reasonable notice to affected persons of the action
  476  of the agency, whether proposed or already taken, or of its
  477  decision to refuse action, together with a summary of the
  478  factual, legal, and policy grounds therefor.
  479         2. Give parties or their counsel the option, at a
  480  convenient time and place, to present to the agency or hearing
  481  officer written or oral evidence in opposition to the action of
  482  the agency or to its refusal to act, or a written statement
  483  challenging the grounds upon which the agency has chosen to
  484  justify its action or inaction.
  485         3. If the objections of the parties are overruled, provide
  486  a written explanation within 7 days.
  487         (b) An agency may not base agency action that determines
  488  the substantial interests of a party on an unadopted rule or a
  489  rule that is an invalid exercise of delegated legislative
  490  authority.
  491         (c)(b) The record shall only consist of:
  492         1. The notice and summary of grounds.
  493         2. Evidence received.
  494         3. All written statements submitted.
  495         4. Any decision overruling objections.
  496         5. All matters placed on the record after an ex parte
  497  communication.
  498         6. The official transcript.
  499         7. Any decision, opinion, order, or report by the presiding
  500  officer.
  501         Section 5. Subsections (1) and (9) of section 120.68,
  502  Florida Statutes, are amended to read:
  503         120.68 Judicial review.—
  504         (1)(a) A party who is adversely affected by final agency
  505  action is entitled to judicial review.
  506         (b) A preliminary, procedural, or intermediate order of the
  507  agency or of an administrative law judge of the Division of
  508  Administrative Hearings is immediately reviewable if review of
  509  the final agency decision would not provide an adequate remedy.
  510         (9) A No petition challenging an agency rule as an invalid
  511  exercise of delegated legislative authority shall not be
  512  instituted pursuant to this section, except to review an order
  513  entered pursuant to a proceeding under s. 120.56, s.
  514  120.57(1)(e)1., or s. 120.57(2)(b) or an agency’s findings of
  515  immediate danger, necessity, and procedural fairness
  516  prerequisite to the adoption of an emergency rule pursuant to s.
  517  120.54(4), unless the sole issue presented by the petition is
  518  the constitutionality of a rule and there are no disputed issues
  519  of fact.
  520         Section 6. Section 120.695, Florida Statutes, is amended to
  521  read:
  522         120.695 Notice of noncompliance; designation of minor
  523  violation of rules.—
  524         (1) It is the policy of the state that the purpose of
  525  regulation is to protect the public by attaining compliance with
  526  the policies established by the Legislature. Fines and other
  527  penalties may be provided in order to assure compliance;
  528  however, the collection of fines and the imposition of penalties
  529  are intended to be secondary to the primary goal of attaining
  530  compliance with an agency’s rules. It is the intent of the
  531  Legislature that an agency charged with enforcing rules shall
  532  issue a notice of noncompliance as its first response to a minor
  533  violation of a rule in any instance in which it is reasonable to
  534  assume that the violator was unaware of the rule or unclear as
  535  to how to comply with it.
  536         (2)(a) Each agency shall issue a notice of noncompliance as
  537  a first response to a minor violation of a rule. A “notice of
  538  noncompliance” is a notification by the agency charged with
  539  enforcing the rule issued to the person or business subject to
  540  the rule. A notice of noncompliance may not be accompanied with
  541  a fine or other disciplinary penalty. It must identify the
  542  specific rule that is being violated, provide information on how
  543  to comply with the rule, and specify a reasonable time for the
  544  violator to comply with the rule. A rule is agency action that
  545  regulates a business, occupation, or profession, or regulates a
  546  person operating a business, occupation, or profession, and
  547  that, if not complied with, may result in a disciplinary
  548  penalty.
  549         (b) Each agency shall review all of its rules and designate
  550  those for which a violation would be a minor violation and for
  551  which a notice of noncompliance must be the first enforcement
  552  action taken against a person or business subject to regulation.
  553  A violation of a rule is a minor violation if it does not result
  554  in economic or physical harm to a person or adversely affect the
  555  public health, safety, or welfare or create a significant threat
  556  of such harm. If an agency under the direction of a cabinet
  557  officer mails to each licensee a notice of the designated rules
  558  at the time of licensure and at least annually thereafter, the
  559  provisions of paragraph (a) may be exercised at the discretion
  560  of the agency. Such notice shall include a subject-matter index
  561  of the rules and information on how the rules may be obtained.
  562         (c)1. No later than June 30, 2017, and after such date
  563  within 3 months after any request of the rules ombudsman in the
  564  Executive Office of the Governor, The agency’s review and
  565  designation must be completed by December 1, 1995; each agency
  566  shall review under the direction of the Governor shall make a
  567  report to the Governor, and each agency under the joint
  568  direction of the Governor and Cabinet shall report to the
  569  Governor and Cabinet by January 1, 1996, on which of its rules
  570  and certify to the President of the Senate, the Speaker of the
  571  House of Representatives, the committee, and the rules ombudsman
  572  those rules that have been designated as rules the violation of
  573  which would be a minor violation under paragraph (b), consistent
  574  with the legislative intent stated in subsection (1).
  575         2. Beginning July 1, 2017, each agency shall:
  576         a. Publish all rules that the agency has designated as
  577  rules the violation of which would be a minor violation, either
  578  as a complete list on the agency’s website or by incorporation
  579  of the designations in the agency’s disciplinary guidelines
  580  adopted as a rule.
  581         b. Ensure that all investigative and enforcement personnel
  582  are knowledgeable about the agency’s designations under this
  583  section.
  584         3. For each rule filed for adoption, the agency head shall
  585  certify whether any part of the rule is designated as a rule the
  586  violation of which would be a minor violation and shall update
  587  the listing required by sub-subparagraph 2.a.
  588         (d) The Governor or the Governor and Cabinet, as
  589  appropriate pursuant to paragraph (c), may evaluate the review
  590  and designation effects of each agency subject to the direction
  591  and supervision of such authority and may direct apply a
  592  different designation than that applied by such the agency.
  593         (e) Notwithstanding s. 120.52(1)(a), this section does not
  594  apply to:
  595         1. The Department of Corrections;
  596         2. Educational units;
  597         3. The regulation of law enforcement personnel; or
  598         4. The regulation of teachers.
  599         (f) Designation pursuant to this section is not subject to
  600  challenge under this chapter.
  601         Section 7. Section 403.8141, Florida Statutes, is amended
  602  to read:
  603         403.8141 Special event permits.—
  604         (1) The department shall issue permits for special events
  605  under s. 253.0345. The permits must be for a period that runs
  606  concurrently with the lease or letter of consent issued pursuant
  607  to s. 253.0345 and must allow for the movement of temporary
  608  structures within the footprint of the lease area.
  609         (2)Administrative challenges to any proposed regulatory
  610  permits related to special events are subject to the summary
  611  hearing provisions of s. 120.574, except that the summary
  612  proceeding must be conducted within 30 days after a party files
  613  a motion for a summary hearing, regardless of whether the
  614  parties agree to the summary proceeding.
  615         Section 8. Paragraph (a) of subsection (4) of section
  616  120.595, Florida Statutes, is amended to read:
  617         120.595 Attorney’s fees.—
  619  120.56(4).—
  620         (a) If the appellate court or administrative law judge
  621  determines that all or part of an agency statement violates s.
  622  120.54(1)(a), or that the agency must immediately discontinue
  623  reliance on the statement and any substantially similar
  624  statement pursuant to s. 120.56(4)(f) s. 120.56(4)(e), a
  625  judgment or order shall be entered against the agency for
  626  reasonable costs and reasonable attorney’s fees, unless the
  627  agency demonstrates that the statement is required by the
  628  Federal Government to implement or retain a delegated or
  629  approved program or to meet a condition to receipt of federal
  630  funds.
  631         Section 9. This act shall take effect July 1, 2016.