Florida Senate - 2013 SB 1696
By Senator Brandes
22-00843A-13 20131696__
1 A bill to be entitled
2 An act relating to administrative procedures; amending
3 s. 120.52, F.S.; defining the term “small business” as
4 used in the Administrative Procedure Act; amending s.
5 120.56, F.S.; providing that the agency has the burden
6 of proof in proceedings challenging the validity of
7 existing rules and unadopted agency statements;
8 amending s. 120.595, F.S.; removing certain exceptions
9 from requirements that attorney fees and costs be
10 rendered against the agency in proceedings in which
11 the petitioner prevails in a challenge to an unadopted
12 agency statement; amending s. 120.573, F.S.;
13 authorizing any party to request mediation of rule
14 challenge and declaratory statement proceedings;
15 amending s. 120.695, F.S.; removing obsolete
16 provisions with respect to required agency review and
17 designation of minor violations; amending ss.
18 420.9072, 420.9075, and 443.091, F.S.; conforming
19 cross-references; providing an effective date.
20
21 Be It Enacted by the Legislature of the State of Florida:
22
23 Section 1. Present subsections (18) through (22) of section
24 120.52, Florida Statutes, are renumbered as subsections (19)
25 through (23), respectively, and a new subsection (18) is added
26 to that section, to read:
27 120.52 Definitions.—As used in this act:
28 (18) “Small business” has the same meaning as provided in
29 s. 288.703.
30 Section 2. Paragraph (a) of subsection (3) and paragraph
31 (b) of subsection (4) of section 120.56, Florida Statutes, are
32 amended to read:
33 120.56 Challenges to rules.—
34 (3) CHALLENGING EXISTING RULES; SPECIAL PROVISIONS.—
35 (a) A substantially affected person may seek an
36 administrative determination of the invalidity of an existing
37 rule at any time during the existence of the rule. The
38 petitioner has the a burden of going forward. The agency then
39 has the burden to prove proving by a preponderance of the
40 evidence that the existing rule is not an invalid exercise of
41 delegated legislative authority as to the objections raised.
42 (4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES; SPECIAL
43 PROVISIONS.—
44 (b) The administrative law judge may extend the hearing
45 date beyond 30 days after assignment of the case for good cause.
46 Upon notification to the administrative law judge provided
47 before the final hearing that the agency has published a notice
48 of rulemaking under s. 120.54(3), such notice shall
49 automatically operate as a stay of proceedings pending adoption
50 of the statement as a rule. The administrative law judge may
51 vacate the stay for good cause shown. A stay of proceedings
52 pending rulemaking shall remain in effect so long as the agency
53 is proceeding expeditiously and in good faith to adopt the
54 statement as a rule. The petitioner has the burden of going
55 forward. If a hearing is held and the petitioner proves the
56 allegations of the petition, The agency then has shall have the
57 burden to prove by a preponderance of the evidence that the
58 statement does not constitute a rule under s. 120.52, that the
59 agency adopted the statement by the rulemaking procedure
60 provided by s. 120.54, or of proving that rulemaking is not
61 feasible or not practicable under s. 120.54(1)(a).
62 Section 3. Section 120.595, Florida Statutes, is amended to
63 read:
64 120.595 Attorney Attorney’s fees.—
65 (1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
66 120.57(1).—
67 (a) The provisions of this subsection are supplemental to,
68 and do not abrogate, other provisions allowing the award of fees
69 or costs in administrative proceedings.
70 (b) The final order in a proceeding pursuant to s.
71 120.57(1) shall award reasonable costs and a reasonable attorney
72 fees attorney’s fee to the prevailing party only where the
73 nonprevailing adverse party has been determined by the
74 administrative law judge to have participated in the proceeding
75 for an improper purpose.
76 (c) In proceedings pursuant to s. 120.57(1), and upon
77 motion, the administrative law judge shall determine whether any
78 party participated in the proceeding for an improper purpose as
79 defined by this subsection. In making such determination, the
80 administrative law judge shall consider whether the
81 nonprevailing adverse party has participated in two or more
82 other such proceedings involving the same prevailing party and
83 the same project as an adverse party and in which such two or
84 more proceedings the nonprevailing adverse party did not
85 establish either the factual or legal merits of its position,
86 and shall consider whether the factual or legal position
87 asserted in the instant proceeding would have been cognizable in
88 the previous proceedings. In such event, it shall be rebuttably
89 presumed that the nonprevailing adverse party participated in
90 the pending proceeding for an improper purpose.
91 (d) In any proceeding in which the administrative law judge
92 determines that a party participated in the proceeding for an
93 improper purpose, the recommended order shall so designate and
94 shall determine the award of costs and attorney attorney’s fees.
95 (e) For the purpose of this subsection:
96 1. “Improper purpose” means participation in a proceeding
97 pursuant to s. 120.57(1) primarily to harass or to cause
98 unnecessary delay or for frivolous purpose or to needlessly
99 increase the cost of litigation, licensing, or securing the
100 approval of an activity.
101 2. “Costs” has the same meaning as the costs allowed in
102 civil actions in this state as provided in chapter 57.
103 3. “Nonprevailing adverse party” means a party that has
104 failed to have substantially changed the outcome of the proposed
105 or final agency action which is the subject of a proceeding. In
106 the event that a proceeding results in any substantial
107 modification or condition intended to resolve the matters raised
108 in a party’s petition, it shall be determined that the party
109 having raised the issue addressed is not a nonprevailing adverse
110 party. The recommended order shall state whether the change is
111 substantial for purposes of this subsection. In no event shall
112 the term “nonprevailing party” or “prevailing party” be deemed
113 to include any party that has intervened in a previously
114 existing proceeding to support the position of an agency.
115 (2) CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO SECTION
116 120.56(2).—If the appellate court or administrative law judge
117 declares a proposed rule or portion of a proposed rule invalid
118 pursuant to s. 120.56(2), a judgment or order shall be rendered
119 against the agency for reasonable costs and reasonable attorney
120 attorney’s fees, unless the agency demonstrates that its actions
121 were substantially justified or special circumstances exist
122 which would make the award unjust. An agency’s actions are
123 “substantially justified” if there was a reasonable basis in law
124 and fact at the time the actions were taken by the agency. If
125 the agency prevails in the proceedings, the appellate court or
126 administrative law judge shall award reasonable costs and
127 reasonable attorney attorney’s fees against a party if the
128 appellate court or administrative law judge determines that a
129 party participated in the proceedings for an improper purpose as
130 defined by paragraph (1)(e). An No award of attorney attorney’s
131 fees as provided by this subsection may not shall exceed
132 $50,000.
133 (3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO SECTION
134 120.56(3) AND (5).—If the appellate court or administrative law
135 judge declares a rule or portion of a rule invalid pursuant to
136 s. 120.56(3) or (5), a judgment or order shall be rendered
137 against the agency for reasonable costs and reasonable attorney
138 attorney’s fees, unless the agency demonstrates that its actions
139 were substantially justified or special circumstances exist
140 which would make the award unjust. An agency’s actions are
141 “substantially justified” if there was a reasonable basis in law
142 and fact at the time the actions were taken by the agency. If
143 the agency prevails in the proceedings, the appellate court or
144 administrative law judge shall award reasonable costs and
145 reasonable attorney attorney’s fees against a party if the
146 appellate court or administrative law judge determines that a
147 party participated in the proceedings for an improper purpose as
148 defined by paragraph (1)(e). An No award of attorney attorney’s
149 fees as provided by this subsection may not shall exceed
150 $50,000.
151 (4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
152 120.56(4).—
153 (a) If the appellate court or administrative law judge
154 determines that all or part of an agency statement violates s.
155 120.54(1)(a), or that the agency must immediately discontinue
156 reliance on the statement and any substantially similar
157 statement pursuant to s. 120.56(4)(e), a judgment or order shall
158 be entered against the agency for reasonable costs and
159 reasonable attorney attorney’s fees, unless the agency
160 demonstrates that the statement is required by the Federal
161 Government to implement or retain a delegated or approved
162 program or to meet a condition to receipt of federal funds.
163 (b) Upon notification to the administrative law judge
164 provided before the final hearing that the agency has published
165 a notice of rulemaking under s. 120.54(3)(a), such notice shall
166 automatically operate as a stay of proceedings pending
167 rulemaking. The administrative law judge may vacate the stay for
168 good cause shown. A stay of proceedings under this paragraph
169 remains in effect so long as the agency is proceeding
170 expeditiously and in good faith to adopt the statement as a
171 rule. The administrative law judge shall award reasonable costs
172 and reasonable attorney attorney’s fees accrued by the
173 petitioner before prior to the date the notice was published,
174 unless the agency proves to the administrative law judge that it
175 did not know and should not have known that the statement was an
176 unadopted rule. Attorneys’ fees and costs under this paragraph
177 and paragraph (a) shall be awarded only upon a finding that the
178 agency received notice that the statement may constitute an
179 unadopted rule at least 30 days before a petition under s.
180 120.56(4) was filed and that the agency failed to publish the
181 required notice of rulemaking pursuant to s. 120.54(3) that
182 addresses the statement within that 30-day period. Notice to the
183 agency may be satisfied by its receipt of a copy of the s.
184 120.56(4) petition, a notice or other paper containing
185 substantially the same information, or a petition filed pursuant
186 to s. 120.54(7). An award of attorney attorney’s fees as
187 provided by this paragraph may not exceed $50,000.
188 (c) Notwithstanding the provisions of chapter 284, an award
189 shall be paid from the budget entity of the secretary, executive
190 director, or equivalent administrative officer of the agency,
191 and the agency is shall not be entitled to payment of an award
192 or reimbursement for payment of an award under any provision of
193 law.
194 (d) If the agency prevails in the proceedings, the
195 appellate court or administrative law judge shall award
196 reasonable costs and attorney attorney’s fees against a party if
197 the appellate court or administrative law judge determines that
198 the party participated in the proceedings for an improper
199 purpose as defined in paragraph (1)(e) or that the party or the
200 party’s attorney knew or should have known that a claim was not
201 supported by the material facts necessary to establish the claim
202 or would not be supported by the application of then-existing
203 law to those material facts.
204 (5) APPEALS.—When there is an appeal, the court in its
205 discretion may award reasonable attorney attorney’s fees and
206 reasonable costs to the prevailing party if the court finds that
207 the appeal was frivolous, meritless, or an abuse of the
208 appellate process, or that the agency action which precipitated
209 the appeal was a gross abuse of the agency’s discretion. Upon
210 review of agency action that precipitates an appeal, if the
211 court finds that the agency improperly rejected or modified
212 findings of fact in a recommended order, the court shall award
213 reasonable attorney attorney’s fees and reasonable costs to a
214 prevailing appellant for the administrative proceeding and the
215 appellate proceeding.
216 (6) OTHER SECTIONS NOT AFFECTED.—Other provisions,
217 including ss. 57.105 and 57.111, authorize the award of attorney
218 attorney’s fees and costs in administrative proceedings. Nothing
219 in This section does not shall affect the availability of
220 attorney attorney’s fees and costs as provided in those
221 sections.
222 Section 4. Section 120.573, Florida Statutes, is amended to
223 read:
224 120.573 Mediation of disputes.—
225 (1) Each announcement of an agency action that affects
226 substantial interests shall advise whether mediation of the
227 administrative dispute for the type of agency action announced
228 is available and that choosing mediation does not affect the
229 right to an administrative hearing. If the agency and all
230 parties to the administrative action agree to mediation, in
231 writing, within 10 days after the time period stated in the
232 announcement for election of an administrative remedy under ss.
233 120.569 and 120.57, the time limitations imposed by ss. 120.569
234 and 120.57 shall be tolled to allow the agency and parties to
235 mediate the administrative dispute. The mediation shall be
236 concluded within 60 days of such agreement unless otherwise
237 agreed by the parties. The mediation agreement shall include
238 provisions for mediator selection, the allocation of costs and
239 fees associated with mediation, and the mediating parties’
240 understanding regarding the confidentiality of discussions and
241 documents introduced during mediation. If mediation results in
242 settlement of the administrative dispute, the agency shall enter
243 a final order incorporating the agreement of the parties. If
244 mediation terminates without settlement of the dispute, the
245 agency shall notify the parties in writing that the
246 administrative hearing processes under ss. 120.569 and 120.57
247 are resumed.
248 (2) Any party to a proceeding conducted pursuant to a
249 petition seeking an administration determination of the
250 invalidity of an existing rule, proposed rule, or unadopted
251 agency statement under s. 120.56 or a proceeding conducted
252 pursuant to a petition seeking a declaratory statement under s.
253 120.565 may request mediation of the dispute under this section.
254 Section 5. Subsection (2) of section 120.695, Florida
255 Statutes, is amended to read:
256 120.695 Notice of noncompliance.—
257 (2)(a) Each agency shall issue a notice of noncompliance as
258 a first response to a minor violation of a rule. A “notice of
259 noncompliance” is a notification by the agency charged with
260 enforcing the rule issued to the person or business subject to
261 the rule. A notice of noncompliance may not be accompanied with
262 a fine or other disciplinary penalty. It must identify the
263 specific rule that is being violated, provide information on how
264 to comply with the rule, and specify a reasonable time for the
265 violator to comply with the rule. A rule is agency action that
266 regulates a business, occupation, or profession, or regulates a
267 person operating a business, occupation, or profession, and
268 that, if not complied with, may result in a disciplinary
269 penalty.
270 (b) Each agency shall review all of its rules and designate
271 those for which A violation would be a minor violation and for
272 which a notice of noncompliance must be the first enforcement
273 action taken against a person or business subject to regulation.
274 A violation of a rule is a minor violation if it does not result
275 in economic or physical harm to a person or adversely affect the
276 public health, safety, or welfare or create a significant threat
277 of such harm. If an agency under the direction of a cabinet
278 officer mails to each licensee a notice of the designated rules
279 at the time of licensure and at least annually thereafter, the
280 provisions of paragraph (a) may be exercised at the discretion
281 of the agency. Such notice shall include a subject-matter index
282 of the rules and information on how the rules may be obtained.
283 (c) The agency’s review and designation must be completed
284 by December 1, 1995; each agency under the direction of the
285 Governor shall make a report to the Governor, and each agency
286 under the joint direction of the Governor and Cabinet shall
287 report to the Governor and Cabinet by January 1, 1996, on which
288 of its rules have been designated as rules the violation of
289 which would be a minor violation.
290 (d) The Governor or the Governor and Cabinet, as
291 appropriate pursuant to paragraph (c), may evaluate the review
292 and designation effects of each agency and may apply a different
293 designation than that applied by the agency.
294 (c)(e) This section does not apply to the regulation of law
295 enforcement personnel or teachers.
296 (f) Designation pursuant to this section is not subject to
297 challenge under this chapter.
298 Section 6. Paragraph (a) of subsection (1) of section
299 420.9072, Florida Statutes, is amended to read:
300 420.9072 State Housing Initiatives Partnership Program.—The
301 State Housing Initiatives Partnership Program is created for the
302 purpose of providing funds to counties and eligible
303 municipalities as an incentive for the creation of local housing
304 partnerships, to expand production of and preserve affordable
305 housing, to further the housing element of the local government
306 comprehensive plan specific to affordable housing, and to
307 increase housing-related employment.
308 (1)(a) In addition to the legislative findings set forth in
309 s. 420.6015, the Legislature finds that affordable housing is
310 most effectively provided by combining available public and
311 private resources to conserve and improve existing housing and
312 provide new housing for very-low-income households, low-income
313 households, and moderate-income households. The Legislature
314 intends to encourage partnerships in order to secure the
315 benefits of cooperation by the public and private sectors and to
316 reduce the cost of housing for the target group by effectively
317 combining all available resources and cost-saving measures. The
318 Legislature further intends that local governments achieve this
319 combination of resources by encouraging active partnerships
320 between government, lenders, builders and developers, real
321 estate professionals, advocates for low-income persons, and
322 community groups to produce affordable housing and provide
323 related services. Extending the partnership concept to encompass
324 cooperative efforts among small counties as defined in s. 120.52
325 120.52(19), and among counties and municipalities is
326 specifically encouraged. Local governments are also intended to
327 establish an affordable housing advisory committee to recommend
328 monetary and nonmonetary incentives for affordable housing as
329 provided in s. 420.9076.
330 Section 7. Subsection (7) of section 420.9075, Florida
331 Statutes, is amended to read:
332 420.9075 Local housing assistance plans; partnerships.—
333 (7) The moneys deposited in the local housing assistance
334 trust fund shall be used to administer and implement the local
335 housing assistance plan. The cost of administering the plan may
336 not exceed 5 percent of the local housing distribution moneys
337 and program income deposited into the trust fund. A county or an
338 eligible municipality may not exceed the 5-percent limitation on
339 administrative costs, unless its governing body finds, by
340 resolution, that 5 percent of the local housing distribution
341 plus 5 percent of program income is insufficient to adequately
342 pay the necessary costs of administering the local housing
343 assistance plan. The cost of administering the program may not
344 exceed 10 percent of the local housing distribution plus 5
345 percent of program income deposited into the trust fund, except
346 that small counties, as defined in s. 120.52 120.52(19), and
347 eligible municipalities receiving a local housing distribution
348 of up to $350,000 may use up to 10 percent of program income for
349 administrative costs.
350 Section 8. Paragraph (d) of subsection (1) of section
351 443.091, Florida Statutes, is amended to read:
352 443.091 Benefit eligibility conditions.—
353 (1) An unemployed individual is eligible to receive
354 benefits for any week only if the Department of Economic
355 Opportunity finds that:
356 (d) She or he is able to work and is available for work. In
357 order to assess eligibility for a claimed week of unemployment,
358 the department shall develop criteria to determine a claimant’s
359 ability to work and availability for work. A claimant must be
360 actively seeking work in order to be considered available for
361 work. This means engaging in systematic and sustained efforts to
362 find work, including contacting at least five prospective
363 employers for each week of unemployment claimed. The department
364 may require the claimant to provide proof of such efforts to the
365 one-stop career center as part of reemployment services. The
366 department shall conduct random reviews of work search
367 information provided by claimants. As an alternative to
368 contacting at least five prospective employers for any week of
369 unemployment claimed, a claimant may, for that same week, report
370 in person to a one-stop career center to meet with a
371 representative of the center and access reemployment services of
372 the center. The center shall keep a record of the services or
373 information provided to the claimant and shall provide the
374 records to the department upon request by the department.
375 However:
376 1. Notwithstanding any other provision of this paragraph or
377 paragraphs (b) and (e), an otherwise eligible individual may not
378 be denied benefits for any week because she or he is in training
379 with the approval of the department, or by reason of s.
380 443.101(2) relating to failure to apply for, or refusal to
381 accept, suitable work. Training may be approved by the
382 department in accordance with criteria prescribed by rule. A
383 claimant’s eligibility during approved training is contingent
384 upon satisfying eligibility conditions prescribed by rule.
385 2. Notwithstanding any other provision of this chapter, an
386 otherwise eligible individual who is in training approved under
387 s. 236(a)(1) of the Trade Act of 1974, as amended, may not be
388 determined ineligible or disqualified for benefits due to
389 enrollment in such training or because of leaving work that is
390 not suitable employment to enter such training. As used in this
391 subparagraph, the term “suitable employment” means work of a
392 substantially equal or higher skill level than the worker’s past
393 adversely affected employment, as defined for purposes of the
394 Trade Act of 1974, as amended, the wages for which are at least
395 80 percent of the worker’s average weekly wage as determined for
396 purposes of the Trade Act of 1974, as amended.
397 3. Notwithstanding any other provision of this section, an
398 otherwise eligible individual may not be denied benefits for any
399 week because she or he is before any state or federal court
400 pursuant to a lawfully issued summons to appear for jury duty.
401 4. Union members who customarily obtain employment through
402 a union hiring hall may satisfy the work search requirements of
403 this paragraph by reporting daily to their union hall.
404 5. The work search requirements of this paragraph do not
405 apply to persons who are unemployed as a result of a temporary
406 layoff or who are claiming benefits under an approved short-time
407 compensation plan as provided in s. 443.1116.
408 6. In small counties as defined in s. 120.52 120.52(19), a
409 claimant engaging in systematic and sustained efforts to find
410 work must contact at least three prospective employers for each
411 week of unemployment claimed.
412 Section 9. This act shall take effect July 1, 2013.