Florida Senate - 2016 CS for CS for SB 372
By the Committees on Appropriations; and Judiciary; and Senator
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.—
51 (7) PETITION TO INITIATE RULEMAKING.—
52 (c) If the agency does not initiate rulemaking or otherwise
53 comply with the requested action within 30 days after
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
83 Section 2. Section 120.55, Florida Statutes, is amended to
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
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
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
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.—
235 (1) GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A
236 RULE OR A PROPOSED RULE.—
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.
287 (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.—
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.
316 (3) CHALLENGING EXISTING RULES IN EFFECT; SPECIAL
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.
325 (4) CHALLENGING AGENCY STATEMENTS DEFINED AS UNADOPTED
326 RULES; SPECIAL PROVISIONS.—
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.
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
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.—
383 (1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING
384 DISPUTED ISSUES OF MATERIAL FACT.—
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
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
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
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
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
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.
471 (2) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS NOT
472 INVOLVING DISPUTED ISSUES OF MATERIAL FACT.—In any case to which
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
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
498 6. The official transcript.
499 7. Any decision, opinion, order, or report by the presiding
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
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
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
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.—
618 (4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
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
631 Section 9. This act shall take effect July 1, 2016.