Florida Senate - 2014                        COMMITTEE AMENDMENT
       Bill No. SB 1626
       
       
       
       
       
       
                                Ì797186SÎ797186                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                                       .                                
                                       .                                
                                       .                                
                                       .                                
                                       .                                
       —————————————————————————————————————————————————————————————————




       —————————————————————————————————————————————————————————————————
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraph (e) of subsection (3) of section
    6  57.111, Florida Statutes, is amended to read:
    7         57.111 Civil actions and administrative proceedings
    8  initiated by state agencies; attorney attorneys’ fees and
    9  costs.—
   10         (3) As used in this section:
   11         (e) A proceeding is “substantially justified” if it had a
   12  reasonable basis in law and fact at the time it was initiated by
   13  a state agency. A proceeding is not substantially justified if
   14  the specified law, rule, or order at issue in the current agency
   15  action is the subject upon which the substantially affected
   16  party previously petitioned the agency for a declaratory
   17  statement under s. 120.565; the current agency action involves
   18  identical or substantially similar facts and circumstances as
   19  those raised in the previous petition; and:
   20         1. The agency action contradicts the declaratory statement
   21  issued by the agency upon the previous petition; or
   22         2. The agency denied the previous petition under s. 120.565
   23  before initiating the current agency action against the
   24  substantially affected party.
   25         Section 2. Paragraph (c) of subsection (7) of section
   26  120.54, Florida Statutes, is amended, and a new paragraph (d) is
   27  added, to read:
   28         120.54 Rulemaking.—
   29         (7) PETITION TO INITIATE RULEMAKING.—
   30         (c) Within 30 days after following the public hearing
   31  provided for in by paragraph (b), if the agency does not
   32  initiate rulemaking or otherwise comply with the requested
   33  action, the agency shall publish in the Florida Administrative
   34  Register a statement of its reasons for not initiating
   35  rulemaking or otherwise complying with the requested action, and
   36  of any changes it will make in the scope or application of the
   37  unadopted rule. The agency shall file the statement with the
   38  committee. The committee shall forward a copy of the statement
   39  to the substantive committee with primary oversight jurisdiction
   40  of the agency in each house of the Legislature. The committee or
   41  the committee with primary oversight jurisdiction may hold a
   42  hearing directed to the statement of the agency. The committee
   43  holding the hearing may recommend to the Legislature the
   44  introduction of legislation making the rule a statutory standard
   45  or limiting or otherwise modifying the authority of the agency.
   46         (d) If the agency initiates rulemaking following a public
   47  hearing under paragraph (b), the agency shall publish its notice
   48  of rule development within 30 days after the hearing and file
   49  its notice of proposed rule within 180 days after the notice of
   50  rule development unless by such deadline the agency publishes in
   51  the Florida Administrative Register a statement explaining its
   52  reasons why a proposed rule has not been filed. If rulemaking is
   53  initiated under this paragraph, the agency may not rely on the
   54  unadopted rule unless the agency publishes in the Florida
   55  Administrative Register a statement explaining why rulemaking
   56  has not been feasible or practicable under s. 120.54(1)(a).
   57         Section 3. Section 120.55, Florida Statutes, is amended to
   58  read:
   59         120.55 Publication.—
   60         (1) The Department of State shall:
   61         (a)1. Through a continuous revision and publication system,
   62  compile and publish electronically, on an Internet website
   63  managed by the department, the “Florida Administrative Code.”
   64  The Florida Administrative Code shall contain all rules adopted
   65  by each agency, citing the grant of rulemaking authority and the
   66  specific law implemented pursuant to which each rule was
   67  adopted, all history notes as authorized in s. 120.545(7),
   68  complete indexes to all rules contained in the code, and any
   69  other material required or authorized by law or deemed useful by
   70  the department. The electronic code shall display each rule
   71  chapter currently in effect in browse mode and allow full text
   72  search of the code and each rule chapter. The department may
   73  contract with a publishing firm for a printed publication;
   74  however, the department shall retain responsibility for the code
   75  as provided in this section. The electronic publication shall be
   76  the official compilation of the administrative rules of this
   77  state. The Department of State shall retain the copyright over
   78  the Florida Administrative Code.
   79         2. Rules general in form but applicable to only one school
   80  district, community college district, or county, or a part
   81  thereof, or state university rules relating to internal
   82  personnel or business and finance shall not be published in the
   83  Florida Administrative Code. Exclusion from publication in the
   84  Florida Administrative Code shall not affect the validity or
   85  effectiveness of such rules.
   86         3. At the beginning of the section of the code dealing with
   87  an agency that files copies of its rules with the department,
   88  the department shall publish the address and telephone number of
   89  the executive offices of each agency, the manner by which the
   90  agency indexes its rules, a listing of all rules of that agency
   91  excluded from publication in the code, and a statement as to
   92  where those rules may be inspected.
   93         4. Forms shall not be published in the Florida
   94  Administrative Code; but any form which an agency uses in its
   95  dealings with the public, along with any accompanying
   96  instructions, shall be filed with the committee before it is
   97  used. Any form or instruction which meets the definition of
   98  “rule” provided in s. 120.52 shall be incorporated by reference
   99  into the appropriate rule. The reference shall specifically
  100  state that the form is being incorporated by reference and shall
  101  include the number, title, and effective date of the form and an
  102  explanation of how the form may be obtained. Each form created
  103  by an agency which is incorporated by reference in a rule notice
  104  of which is given under s. 120.54(3)(a) after December 31, 2007,
  105  must clearly display the number, title, and effective date of
  106  the form and the number of the rule in which the form is
  107  incorporated.
  108         5. The department shall allow adopted rules and material
  109  incorporated by reference to be filed in electronic form as
  110  prescribed by department rule. When a rule is filed for adoption
  111  with incorporated material in electronic form, the department’s
  112  publication of the Florida Administrative Code on its Internet
  113  website must contain a hyperlink from the incorporating
  114  reference in the rule directly to that material. The department
  115  may not allow hyperlinks from rules in the Florida
  116  Administrative Code to any material other than that filed with
  117  and maintained by the department, but may allow hyperlinks to
  118  incorporated material maintained by the department from the
  119  adopting agency’s website or other sites.
  120         (b) Electronically publish on an Internet website managed
  121  by the department a continuous revision and publication entitled
  122  the “Florida Administrative Register,” which shall serve as the
  123  official publication and must contain:
  124         1. All notices required by s. 120.54(2) and (3)(a) s.
  125  120.54(3)(a), showing the text of all rules proposed for
  126  consideration.
  127         2. All notices of public meetings, hearings, and workshops
  128  conducted in accordance with s. 120.525, including a statement
  129  of the manner in which a copy of the agenda may be obtained.
  130         3. A notice of each request for authorization to amend or
  131  repeal an existing uniform rule or for the adoption of new
  132  uniform rules.
  133         4. Notice of petitions for declaratory statements or
  134  administrative determinations.
  135         5. A summary of each objection to any rule filed by the
  136  Administrative Procedures Committee.
  137         6. A listing of rules filed for adoption in the previous 7
  138  days.
  139         7. A listing of all rules filed for adoption pending
  140  legislative ratification under s. 120.541(3) until notice of
  141  ratification or withdrawal of such rule is received.
  142         8.6. Any other material required or authorized by law or
  143  deemed useful by the department.
  144  
  145  The department may contract with a publishing firm for a printed
  146  publication of the Florida Administrative Register and make
  147  copies available on an annual subscription basis.
  148         (c) Prescribe by rule the style and form required for
  149  rules, notices, and other materials submitted for filing.
  150         (d) Charge each agency using the Florida Administrative
  151  Register a space rate to cover the costs related to the Florida
  152  Administrative Register and the Florida Administrative Code.
  153         (e) Maintain a permanent record of all notices published in
  154  the Florida Administrative Register.
  155         (2) The Florida Administrative Register Internet website
  156  must allow users to:
  157         (a) Search for notices by type, publication date, rule
  158  number, word, subject, and agency.
  159         (b) Search a database that makes available all notices
  160  published on the website for a period of at least 5 years.
  161         (c) Subscribe to an automated e-mail notification of
  162  selected notices to be sent out before or concurrently with
  163  publication of the electronic Florida Administrative Register.
  164  Such notification must include in the text of the e-mail a
  165  summary of the content of each notice.
  166         (d) View agency forms and other materials submitted to the
  167  department in electronic form and incorporated by reference in
  168  proposed rules.
  169         (e) Comment on proposed rules.
  170         (3) Publication of material required by paragraph (1)(b) on
  171  the Florida Administrative Register Internet website does not
  172  preclude publication of such material on an agency’s website or
  173  by other means.
  174         (4) Each agency shall provide copies of its rules upon
  175  request, with citations to the grant of rulemaking authority and
  176  the specific law implemented for each rule.
  177         (5) Each agency that provides an e-mail alert service to
  178  inform licensees or other registered recipients of important
  179  notices shall use such service to notify recipients of each
  180  notice required under s. 120.54(2) and (3)(a), including a
  181  notice of rule development, notice of proposed rules, and notice
  182  of filing rules for adoption, and provide Internet links to the
  183  appropriate rule page on the Secretary of State’s website or
  184  Internet links to an agency website that contains the proposed
  185  rule or final rule.
  186         (6)(5) Any publication of a proposed rule promulgated by an
  187  agency, whether published in the Florida Administrative Register
  188  or elsewhere, shall include, along with the rule, the name of
  189  the person or persons originating such rule, the name of the
  190  agency head who approved the rule, and the date upon which the
  191  rule was approved.
  192         (7)(6) Access to the Florida Administrative Register
  193  Internet website and its contents, including the e-mail
  194  notification service, shall be free for the public.
  195         (8)(a)(7)(a) All fees and moneys collected by the
  196  Department of State under this chapter shall be deposited in the
  197  Records Management Trust Fund for the purpose of paying for
  198  costs incurred by the department in carrying out this chapter.
  199         (b) The unencumbered balance in the Records Management
  200  Trust Fund for fees collected pursuant to this chapter may not
  201  exceed $300,000 at the beginning of each fiscal year, and any
  202  excess shall be transferred to the General Revenue Fund.
  203         Section 4. Paragraph (b) of subsection (1), paragraph (a)
  204  of subsection (2), and subsection (4) of section 120.56, Florida
  205  Statutes, are amended to read:
  206         120.56 Challenges to rules.—
  207         (1) GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A
  208  RULE OR A PROPOSED RULE.—
  209         (b) The petition challenging the validity of a proposed or
  210  adopted rule under this section seeking an administrative
  211  determination must state with particularity:
  212         1. The particular provisions alleged to be invalid and
  213  include a statement with sufficient explanation of the facts or
  214  grounds for the alleged invalidity; and
  215         2. Facts sufficient to show that the petitioner person
  216  challenging a rule is substantially affected by the challenged
  217  adopted rule it, or that the person challenging a proposed rule
  218  would be substantially affected by the proposed rule it.
  219         (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.—
  220         (a) A substantially affected person may seek an
  221  administrative determination of the invalidity of a proposed
  222  rule by filing a petition seeking such a determination with the
  223  division within 21 days after the date of publication of the
  224  notice required by s. 120.54(3)(a); within 10 days after the
  225  final public hearing is held on the proposed rule as provided by
  226  s. 120.54(3)(e)2.; within 20 days after the statement of
  227  estimated regulatory costs or revised statement of estimated
  228  regulatory costs, if applicable, has been prepared and made
  229  available as provided in s. 120.541(1)(d); or within 20 days
  230  after the date of publication of the notice required by s.
  231  120.54(3)(d). The petition must state with particularity the
  232  objections to the proposed rule and the reasons that the
  233  proposed rule is an invalid exercise of delegated legislative
  234  authority. The petitioner has the burden of going forward with
  235  evidence sufficient to support the petition. The agency then has
  236  the burden to prove by a preponderance of the evidence that the
  237  proposed rule is not an invalid exercise of delegated
  238  legislative authority as to the objections raised. A person who
  239  is substantially affected by a change in the proposed rule may
  240  seek a determination of the validity of such change. A person
  241  who is not substantially affected by the proposed rule as
  242  initially noticed, but who is substantially affected by the rule
  243  as a result of a change, may challenge any provision of the
  244  resulting rule and is not limited to challenging the change to
  245  the proposed rule.
  246         (4) CHALLENGING AGENCY STATEMENTS DEFINED AS UNADOPTED
  247  RULES; SPECIAL PROVISIONS.—
  248         (a) A Any person substantially affected by an agency
  249  statement that is an unadopted rule may seek an administrative
  250  determination that the statement violates s. 120.54(1)(a). The
  251  petition shall include the text of the statement or a
  252  description of the statement and shall state with particularity
  253  facts sufficient to show that the statement constitutes an a
  254  unadopted rule under s. 120.52 and that the agency has not
  255  adopted the statement by the rulemaking procedure provided by s.
  256  120.54.
  257         (b) The administrative law judge may extend the hearing
  258  date beyond 30 days after assignment of the case for good cause.
  259  Upon notification to the administrative law judge provided
  260  before the final hearing that the agency has published a notice
  261  of rulemaking under s. 120.54(3), such notice shall
  262  automatically operate as a stay of proceedings pending adoption
  263  of the statement as a rule. The administrative law judge may
  264  vacate the stay for good cause shown. A stay of proceedings
  265  pending rulemaking shall remain in effect so long as the agency
  266  is proceeding expeditiously and in good faith to adopt the
  267  statement as a rule. If a hearing is held and the petitioner
  268  proves the allegations of the petition, the agency shall have
  269  the burden of proving
  270         (c) The petitioner has the burden of going forward with
  271  evidence sufficient to support the petition. The agency then has
  272  the burden to prove by a preponderance of the evidence that the
  273  statement does not meet the definition of an unadopted rule, the
  274  statement was adopted as a rule in compliance with s. 120.54, or
  275  that rulemaking is not feasible or not practicable under s.
  276  120.54(1)(a).
  277         (d)(c) The administrative law judge may determine whether
  278  all or part of a statement violates s. 120.54(1)(a). The
  279  decision of the administrative law judge shall constitute a
  280  final order. The division shall transmit a copy of the final
  281  order to the Department of State and the committee. The
  282  Department of State shall publish notice of the final order in
  283  the first available issue of the Florida Administrative
  284  Register.
  285         (e)(d) If an administrative law judge enters a final order
  286  that all or part of an unadopted rule agency statement violates
  287  s. 120.54(1)(a), the agency must immediately discontinue all
  288  reliance on upon the unadopted rule statement or any
  289  substantially similar statement as a basis for agency action.
  290         (f)(e) If proposed rules addressing the challenged
  291  unadopted rule statement are determined to be an invalid
  292  exercise of delegated legislative authority as defined in s.
  293  120.52(8)(b)-(f), the agency must immediately discontinue
  294  reliance on the unadopted rule statement and any substantially
  295  similar statement until rules addressing the subject are
  296  properly adopted, and the administrative law judge shall enter a
  297  final order to that effect.
  298         (g)(f) All proceedings to determine a violation of s.
  299  120.54(1)(a) shall be brought pursuant to this subsection. A
  300  proceeding pursuant to this subsection may be consolidated with
  301  a proceeding under subsection (3) or under any other section of
  302  this chapter. This paragraph does not prevent a party whose
  303  substantial interests have been determined by an agency action
  304  from bringing a proceeding pursuant to s. 120.57(1)(e).
  305         Section 5. Paragraph (l) of subsection (2) of section
  306  120.569, Florida Statutes, is amended to read:
  307         120.569 Decisions which affect substantial interests.—
  308         (2)
  309         (l) Unless the time period is waived or extended with the
  310  consent of all parties, the final order in a proceeding which
  311  affects substantial interests must be in writing and include
  312  findings of fact, if any, and conclusions of law separately
  313  stated, and it must be rendered within 90 days:
  314         1. After the hearing is concluded, if conducted by the
  315  agency;
  316         2. After a recommended order is submitted to the agency and
  317  mailed to all parties, if the hearing is conducted by an
  318  administrative law judge, except that, at the election of the
  319  agency, the time for rendering the final order may be extended
  320  up to 10 days after entry of a mandate on any appeal from a
  321  final order under s. 120.57(1)(e)4.; or
  322         3. After the agency has received the written and oral
  323  material it has authorized to be submitted, if there has been no
  324  hearing.
  325         Section 6. Paragraphs (e) and (h) of subsection (1) and
  326  subsection (2) of section 120.57, Florida Statutes, are amended
  327  to read:
  328         120.57 Additional procedures for particular cases.—
  329         (1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING
  330  DISPUTED ISSUES OF MATERIAL FACT.—
  331         (e)1. An agency or an administrative law judge may not base
  332  agency action that determines the substantial interests of a
  333  party on an unadopted rule or a rule that is an invalid exercise
  334  of delegated legislative authority. The administrative law judge
  335  shall determine whether an agency statement constitutes an
  336  unadopted rule. This subparagraph does not preclude application
  337  of valid adopted rules and applicable provisions of law to the
  338  facts.
  339         2. In a matter initiated as a result of agency action
  340  proposing to determine the substantial interests of a party, the
  341  party’s timely petition for hearing may challenge the proposed
  342  agency action based on a rule that is an invalid exercise of
  343  delegated legislative authority or based on an alleged unadopted
  344  rule. For challenges brought under this subparagraph:
  345         a. The challenge shall be pled as a defense using the
  346  procedures set forth in s. 120.56(1)(b).
  347         b. Section 120.56(3)(a) applies to a challenge alleging
  348  that a rule is an invalid exercise of delegated legislative
  349  authority.
  350         c. Section 120.56(4)(c) applies to a challenge alleging an
  351  unadopted rule.
  352         d. The agency has 15 days from the date of receipt of a
  353  challenge under this subparagraph to serve the challenging party
  354  with a notice as to whether the agency will continue to rely
  355  upon the rule or the alleged unadopted rule as a basis for the
  356  action determining the party’s substantive interests. Failure to
  357  timely serve the notice constitutes a binding stipulation that
  358  the agency may not rely upon the rule or unadopted rule further
  359  in the proceeding. The agency shall include a copy of this
  360  notice with the referral of the matter to the division under s.
  361  120.569(2)(a).
  362         e. This subparagraph does not preclude the consolidation of
  363  any proceeding under s. 120.56 with any proceeding under this
  364  paragraph.
  365         3.2. Notwithstanding subparagraph 1., if an agency
  366  demonstrates that the statute being implemented directs it to
  367  adopt rules, that the agency has not had time to adopt those
  368  rules because the requirement was so recently enacted, and that
  369  the agency has initiated rulemaking and is proceeding
  370  expeditiously and in good faith to adopt the required rules,
  371  then the agency’s action may be based upon those unadopted rules
  372  if, subject to de novo review by the administrative law judge
  373  determines that rulemaking is neither feasible nor practicable
  374  and the unadopted rules would not constitute an invalid exercise
  375  of delegated legislative authority if adopted as rules. An
  376  unadopted rule The agency action shall not be presumed valid or
  377  invalid. The agency must demonstrate that the unadopted rule:
  378         a. Is within the powers, functions, and duties delegated by
  379  the Legislature or, if the agency is operating pursuant to
  380  authority vested in the agency by derived from the State
  381  Constitution, is within that authority;
  382         b. Does not enlarge, modify, or contravene the specific
  383  provisions of law implemented;
  384         c. Is not vague, establishes adequate standards for agency
  385  decisions, or does not vest unbridled discretion in the agency;
  386         d. Is not arbitrary or capricious. A rule is arbitrary if
  387  it is not supported by logic or the necessary facts; a rule is
  388  capricious if it is adopted without thought or reason or is
  389  irrational;
  390         e. Is not being applied to the substantially affected party
  391  without due notice; and
  392         f. Does not impose excessive regulatory costs on the
  393  regulated person, county, or city.
  394         4. If the agency timely serves notice of continued reliance
  395  upon a challenged rule or an alleged unadopted rule under sub
  396  subparagraph 2.d., the administrative law judge shall determine
  397  whether the challenged rule is an invalid exercise of delegated
  398  legislative authority or whether the challenged agency statement
  399  constitutes an unadopted rule and if that unadopted rule meets
  400  the requirements of subparagraph 3. The determination shall be
  401  rendered as a separate final order no earlier than the date on
  402  which the administrative law judge serves the recommended order.
  403         5.3. The recommended and final orders in any proceeding
  404  shall be governed by the provisions of paragraphs (k) and (l),
  405  except that the administrative law judge’s determination
  406  regarding an unadopted rule under subparagraph 4. 1. or
  407  subparagraph 2. shall be included as a conclusion of law that
  408  the agency may not reject not be rejected by the agency unless
  409  the agency first determines from a review of the complete
  410  record, and states with particularity in the order, that such
  411  determination is clearly erroneous or does not comply with
  412  essential requirements of law. In any proceeding for review
  413  under s. 120.68, if the court finds that the agency’s rejection
  414  of the determination regarding the unadopted rule does not
  415  comport with the provisions of this subparagraph, the agency
  416  action shall be set aside and the court shall award to the
  417  prevailing party the reasonable costs and a reasonable
  418  attorney’s fee for the initial proceeding and the proceeding for
  419  review.
  420         (h) Any party to a proceeding in which an administrative
  421  law judge of the Division of Administrative Hearings has final
  422  order authority may move for a summary final order when there is
  423  no genuine issue as to any material fact. A summary final order
  424  shall be rendered if the administrative law judge determines
  425  from the pleadings, depositions, answers to interrogatories, and
  426  admissions on file, together with affidavits, if any, that no
  427  genuine issue as to any material fact exists and that the moving
  428  party is entitled as a matter of law to the entry of a final
  429  order. A summary final order shall consist of findings of fact,
  430  if any, conclusions of law, a disposition or penalty, if
  431  applicable, and any other information required by law to be
  432  contained in the final order. This paragraph does not apply to
  433  proceedings authorized by paragraph (e).
  434         (2) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS NOT
  435  INVOLVING DISPUTED ISSUES OF MATERIAL FACT.—In any case to which
  436  subsection (1) does not apply:
  437         (a) The agency shall:
  438         1. Give reasonable notice to affected persons of the action
  439  of the agency, whether proposed or already taken, or of its
  440  decision to refuse action, together with a summary of the
  441  factual, legal, and policy grounds therefor.
  442         2. Give parties or their counsel the option, at a
  443  convenient time and place, to present to the agency or hearing
  444  officer written or oral evidence in opposition to the action of
  445  the agency or to its refusal to act, or a written statement
  446  challenging the grounds upon which the agency has chosen to
  447  justify its action or inaction.
  448         3. If the objections of the parties are overruled, provide
  449  a written explanation within 7 days.
  450         (b) An agency may not base agency action that determines
  451  the substantial interests of a party on an unadopted rule or a
  452  rule that is an invalid exercise of delegated legislative
  453  authority. No later than the date provided by the agency under
  454  subparagraph (a)2. for presenting material in opposition to the
  455  agency’s proposed action or refusal to act, the party may file a
  456  petition under s. 120.56 challenging the rule, portion of rule,
  457  or unadopted rule upon which the agency bases its proposed
  458  action or refusal to act. The filing of a challenge under s.
  459  120.56 pursuant to this paragraph shall stay all proceedings on
  460  the agency’s proposed action or refusal to act until entry of
  461  the final order by the administrative law judge, which shall
  462  provide additional notice that the stay of the pending agency
  463  action is terminated and any further stay pending appeal of the
  464  final order must be sought from the appellate court.
  465         (c)(b) The record shall only consist of:
  466         1. The notice and summary of grounds.
  467         2. Evidence received.
  468         3. All written statements submitted.
  469         4. Any decision overruling objections.
  470         5. All matters placed on the record after an ex parte
  471  communication.
  472         6. The official transcript.
  473         7. Any decision, opinion, order, or report by the presiding
  474  officer.
  475         Section 7. Section 120.595, Florida Statutes, is amended to
  476  read:
  477         120.595 Attorney Attorney’s fees and costs.—
  478         (1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
  479  120.57(1).—
  480         (a) The provisions of This subsection is are supplemental
  481  to, and does do not abrogate, other provisions allowing the
  482  award of fees or costs in administrative proceedings.
  483         (b) The final order in a proceeding conducted pursuant to
  484  s. 120.57(1) must shall award all reasonable costs and all a
  485  reasonable attorney fees attorney’s fee to the prevailing party
  486  only if where the administrative law judge determines that the
  487  nonprevailing adverse party has been determined by the
  488  administrative law judge to have participated in the proceeding
  489  for an improper purpose.
  490         (c) In proceedings conducted pursuant to s. 120.57(1), it
  491  shall be rebuttably presumed that a nonprevailing adverse party
  492  participated in the current proceeding for an improper purpose
  493  if the administrative law judge determines that:
  494         1. The nonprevailing adverse party participated in another
  495  such proceeding involving the same prevailing party and project
  496  as an adverse party in which the nonprevailing adverse party did
  497  not establish either the factual or legal merits of its
  498  position.
  499         2. The factual or legal position asserted in the current
  500  proceeding would have been cognizable in the previous proceeding
  501  and upon motion, the administrative law judge shall determine
  502  whether any party participated in the proceeding for an improper
  503  purpose as defined by this subsection. In making such
  504  determination, the administrative law judge shall consider
  505  whether the nonprevailing adverse party has participated in two
  506  or more other such proceedings involving the same prevailing
  507  party and the same project as an adverse party and in which such
  508  two or more proceedings the nonprevailing adverse party did not
  509  establish either the factual or legal merits of its position,
  510  and shall consider whether the factual or legal position
  511  asserted in the instant proceeding would have been cognizable in
  512  the previous proceedings. In such event, it shall be rebuttably
  513  presumed that the nonprevailing adverse party participated in
  514  the pending proceeding for an improper purpose.
  515         (d) In a any proceeding in which the administrative law
  516  judge determines that a party participated in the proceeding for
  517  an improper purpose, the recommended order shall so designate
  518  that party and shall determine the award of costs and attorney
  519  attorney’s fees.
  520         (e) For purposes the purpose of this subsection, the term:
  521         1. “Improper purpose” means participation in a proceeding
  522  pursuant to s. 120.57(1) primarily to harass or to cause
  523  unnecessary delay or for frivolous purpose or to needlessly
  524  increase the cost of litigation, licensing, or securing the
  525  approval of an activity.
  526         2. “Costs” has the same meaning as the costs allowed in
  527  civil actions in this state as provided in chapter 57.
  528         3. “Nonprevailing adverse party” means a party that has
  529  failed to have substantially changed the outcome of the proposed
  530  or final agency action which is the subject of a proceeding. If
  531  In the event that a proceeding results in any substantial
  532  modification or condition intended to resolve the matters raised
  533  in a party’s petition, it shall be determined that the party
  534  having raised the issue addressed is not a nonprevailing adverse
  535  party. The recommended order shall state whether the change is
  536  substantial for purposes of this subsection. In no event shall
  537  The term “nonprevailing party” or “prevailing party” may not be
  538  deemed to include a any party that has intervened in a
  539  previously existing proceeding to support the position of an
  540  agency.
  541         (f) For challenges brought under s. 120.57(1)(e), when the
  542  agency relies on a challenged rule or an alleged unadopted rule
  543  pursuant to s. 120.57(1)(e)2.d., if the appellate court or the
  544  administrative law judge declares the rule or portion of the
  545  rule to be invalid or that the agency statement is an unadopted
  546  rule that does not meet the requirements of s. 120.57(1)(e)4., a
  547  judgment or order shall be rendered against the agency for
  548  reasonable costs and reasonable attorney fees, unless the agency
  549  demonstrates that special circumstances exist which would make
  550  the award unjust. An award of attorney fees as provided by this
  551  paragraph may not exceed $50,000.
  552         (2) CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO SECTION
  553  120.56(2).—If the appellate court or administrative law judge
  554  declares a proposed rule or portion of a proposed rule invalid
  555  pursuant to s. 120.56(2), a judgment or order shall be rendered
  556  against the agency for reasonable costs and reasonable attorney
  557  attorney’s fees, unless the agency demonstrates that its actions
  558  were substantially justified or special circumstances exist
  559  which would make the award unjust. An agency’s actions are
  560  “substantially justified” if there was a reasonable basis in law
  561  and fact at the time the actions were taken by the agency. If
  562  the agency prevails in the proceedings, the appellate court or
  563  administrative law judge shall award reasonable costs and
  564  reasonable attorney’s fees against a party if the appellate
  565  court or administrative law judge determines that a party
  566  participated in the proceedings for an improper purpose as
  567  defined by paragraph (1)(e). An No award of attorney attorney’s
  568  fees as provided by this subsection may not shall exceed
  569  $50,000.
  570         (3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO SECTION
  571  120.56(3) AND (5).—If the appellate court or administrative law
  572  judge declares a rule or portion of a rule invalid pursuant to
  573  s. 120.56(3) or (5), a judgment or order shall be rendered
  574  against the agency for reasonable costs and reasonable attorney
  575  attorney’s fees, unless the agency demonstrates that its actions
  576  were substantially justified or special circumstances exist
  577  which would make the award unjust. An agency’s actions are
  578  “substantially justified” if there was a reasonable basis in law
  579  and fact at the time the actions were taken by the agency. If
  580  the agency prevails in the proceedings, the appellate court or
  581  administrative law judge shall award reasonable costs and
  582  reasonable attorney’s fees against a party if the appellate
  583  court or administrative law judge determines that a party
  584  participated in the proceedings for an improper purpose as
  585  defined by paragraph (1)(e). An No award of attorney attorney’s
  586  fees as provided by this subsection may not shall exceed
  587  $50,000.
  588         (4) CHALLENGES TO UNADOPTED RULES AGENCY ACTION PURSUANT TO
  589  SECTION 120.56(4).—
  590         (a) If the appellate court or administrative law judge
  591  determines that all or part of an unadopted rule agency
  592  statement violates s. 120.54(1)(a), or that the agency must
  593  immediately discontinue reliance upon on the unadopted rule
  594  statement and any substantially similar statement pursuant to s.
  595  120.56(4)(f) s. 120.56(4)(e), a judgment or order shall be
  596  entered against the agency for reasonable costs and reasonable
  597  attorney attorney’s fees, unless the agency demonstrates that
  598  the statement is required by the Federal Government to implement
  599  or retain a delegated or approved program or to meet a condition
  600  to receipt of federal funds.
  601         (b) Upon notification to the administrative law judge
  602  provided before the final hearing that the agency has published
  603  a notice of rulemaking under s. 120.54(3)(a), such notice shall
  604  automatically operate as a stay of proceedings pending
  605  rulemaking. The administrative law judge may vacate the stay for
  606  good cause shown. A stay of proceedings under this paragraph
  607  remains in effect so long as the agency is proceeding
  608  expeditiously and in good faith to adopt the statement as a
  609  rule. The administrative law judge shall award reasonable costs
  610  and reasonable attorney attorney’s fees incurred accrued by the
  611  petitioner before prior to the date the notice was published,
  612  unless the agency proves to the administrative law judge that it
  613  did not know and should not have known that the statement was an
  614  unadopted rule. Attorneys’ fees and costs under this paragraph
  615  and paragraph (a) shall be awarded only upon a finding that the
  616  agency received notice that the statement may constitute an
  617  unadopted rule at least 30 days before a petition under s.
  618  120.56(4) was filed and that the agency failed to publish the
  619  required notice of rulemaking pursuant to s. 120.54(3) that
  620  addresses the statement within that 30-day period. Notice to the
  621  agency may be satisfied by its receipt of a copy of the s.
  622  120.56(4) petition, a notice or other paper containing
  623  substantially the same information, or a petition filed pursuant
  624  to s. 120.54(7). An award of attorney attorney’s fees as
  625  provided by this paragraph may not exceed $50,000.
  626         (c) Notwithstanding the provisions of chapter 284, an award
  627  shall be paid from the budget entity of the secretary, executive
  628  director, or equivalent administrative officer of the agency,
  629  and the agency is shall not be entitled to payment of an award
  630  or reimbursement for payment of an award under any provision of
  631  law.
  632         (d) If the agency prevails in the proceedings, the
  633  appellate court or administrative law judge shall award
  634  reasonable costs and attorney’s fees against a party if the
  635  appellate court or administrative law judge determines that the
  636  party participated in the proceedings for an improper purpose as
  637  defined in paragraph (1)(e) or that the party or the party’s
  638  attorney knew or should have known that a claim was not
  639  supported by the material facts necessary to establish the claim
  640  or would not be supported by the application of then-existing
  641  law to those material facts.
  642         (5) APPEALS.—When there is an appeal, the court in its
  643  discretion may award reasonable attorney attorney’s fees and
  644  reasonable costs to the prevailing party if the court finds that
  645  the appeal was frivolous, meritless, or an abuse of the
  646  appellate process, or that the agency action which precipitated
  647  the appeal was a gross abuse of the agency’s discretion. Upon
  648  review of agency action that precipitates an appeal, if the
  649  court finds that the agency improperly rejected or modified
  650  findings of fact in a recommended order, the court shall award
  651  reasonable attorney attorney’s fees and reasonable costs to a
  652  prevailing appellant for the administrative proceeding and the
  653  appellate proceeding.
  654         (6) NOTICE OF INVALIDITY.—A party failing to serve a notice
  655  of proposed challenge under this subsection is not entitled to
  656  an award of reasonable costs and reasonable attorney fees under
  657  this section.
  658         (a) Before filing a petition challenging the validity of a
  659  proposed rule under s. 120.56(2), an adopted rule under s.
  660  120.56(3), or an agency statement defined as an unadopted rule
  661  under s. 120.56(4), a substantially affected person shall serve
  662  the agency head with notice of the proposed challenge. The
  663  notice shall identify the proposed or adopted rule or the
  664  unadopted rule that the person proposes to challenge and a brief
  665  explanation of the basis for that challenge. The notice must be
  666  received by the agency head at least 5 days before the filing of
  667  a petition under s. 120.56(2), and at least 30 days before the
  668  filing of a petition under s. 120.56(3) or s. 120.56(4).
  669         (b) This subsection does not apply to defenses raised and
  670  challenges authorized by s. 120.57(1)(e) or s. 120.57(2)(b).
  671         (7) DETERMINATION OF RECOVERABLE FEES AND COSTS.—For
  672  purposes of this chapter, s. 57.105(5), and s. 57.111, in
  673  addition to an award of reasonable attorney fees and costs, the
  674  prevailing party, if the prevailing party is not a state agency,
  675  shall also recover reasonable attorney fees and costs incurred
  676  in litigating entitlement to, and the determination or
  677  quantification of, reasonable attorney fees and costs for the
  678  underlying matter. Reasonable attorney fees and costs awarded
  679  for litigating entitlement to, and the determination or
  680  quantification of, reasonable attorney fees and costs for the
  681  underlying matter are not subject to the limitations on amounts
  682  provided in this chapter or s. 57.111.
  683         (8)(6) OTHER SECTIONS NOT AFFECTED.—Other provisions,
  684  including ss. 57.105 and 57.111, authorize the award of attorney
  685  attorney’s fees and costs in administrative proceedings. Nothing
  686  in this section shall affect the availability of attorney
  687  attorney’s fees and costs as provided in those sections.
  688         Section 8. Subsections (1), (2), and (9) of section 120.68,
  689  Florida Statutes, are amended to read:
  690         120.68 Judicial review.—
  691         (1)(a) A party who is adversely affected by final agency
  692  action is entitled to judicial review.
  693         (b) A preliminary, procedural, or intermediate order of the
  694  agency or of an administrative law judge of the Division of
  695  Administrative Hearings, or a final order under s.
  696  120.57(1)(e)4., is immediately reviewable if review of the final
  697  agency decision would not provide an adequate remedy.
  698         (2)(a) Judicial review shall be sought in the appellate
  699  district where the agency maintains its headquarters or where a
  700  party resides or as otherwise provided by law.
  701         (b) All proceedings shall be instituted by filing a notice
  702  of appeal or petition for review in accordance with the Florida
  703  Rules of Appellate Procedure within 30 days after the date that
  704  rendition of the order being appealed was filed with the agency
  705  clerk. Such time is hereby extended for any party 10 days from
  706  receipt by such party of the notice of the order, if such notice
  707  is received after the 25th day from the filing of the order. If
  708  the appeal is of an order rendered in a proceeding initiated
  709  under s. 120.56, or a final order under s. 120.57(1)(e)4., the
  710  agency whose rule is being challenged shall transmit a copy of
  711  the notice of appeal to the committee.
  712         (c)(b) When proceedings under this chapter are consolidated
  713  for final hearing and the parties to the consolidated proceeding
  714  seek review of final or interlocutory orders in more than one
  715  district court of appeal, the courts of appeal are authorized to
  716  transfer and consolidate the review proceedings. The court may
  717  transfer such appellate proceedings on its own motion, upon
  718  motion of a party to one of the appellate proceedings, or by
  719  stipulation of the parties to the appellate proceedings. In
  720  determining whether to transfer a proceeding, the court may
  721  consider such factors as the interrelationship of the parties
  722  and the proceedings, the desirability of avoiding inconsistent
  723  results in related matters, judicial economy, and the burden on
  724  the parties of reproducing the record for use in multiple
  725  appellate courts.
  726         (9) No petition challenging an agency rule as an invalid
  727  exercise of delegated legislative authority shall be instituted
  728  pursuant to this section, except to review an order entered
  729  pursuant to a proceeding under s. 120.56, under s.
  730  120.57(1)(e)5., or under s. 120.57(2)(b), or an agency’s
  731  findings of immediate danger, necessity, and procedural fairness
  732  prerequisite to the adoption of an emergency rule pursuant to s.
  733  120.54(4), unless the sole issue presented by the petition is
  734  the constitutionality of a rule and there are no disputed issues
  735  of fact.
  736         Section 9. Section 120.695, Florida Statutes, is amended to
  737  read:
  738         120.695 Notice of noncompliance; designation of minor
  739  violation rules.—
  740         (1) It is the policy of the state that the purpose of
  741  regulation is to protect the public by attaining compliance with
  742  the policies established by the Legislature. Fines and other
  743  penalties may be provided in order to assure compliance;
  744  however, the collection of fines and the imposition of penalties
  745  are intended to be secondary to the primary goal of attaining
  746  compliance with an agency’s rules. It is the intent of the
  747  Legislature that an agency charged with enforcing rules shall
  748  issue a notice of noncompliance as its first response to a minor
  749  violation of a rule in any instance in which it is reasonable to
  750  assume that the violator was unaware of the rule or unclear as
  751  to how to comply with it.
  752         (2)(a) Each agency shall issue a notice of noncompliance as
  753  a first response to a minor violation of a rule. A “notice of
  754  noncompliance” is a notification by the agency charged with
  755  enforcing the rule issued to the person or business subject to
  756  the rule. A notice of noncompliance may not be accompanied with
  757  a fine or other disciplinary penalty. It must identify the
  758  specific rule that is being violated, provide information on how
  759  to comply with the rule, and specify a reasonable time for the
  760  violator to comply with the rule. A rule is agency action that
  761  regulates a business, occupation, or profession, or regulates a
  762  person operating a business, occupation, or profession, and
  763  that, if not complied with, may result in a disciplinary
  764  penalty.
  765         (b) Each agency shall review all of its rules and designate
  766  those for which a violation would be a minor violation and for
  767  which a notice of noncompliance must be the first enforcement
  768  action taken against a person or business subject to regulation.
  769  A violation of a rule is a minor violation if it does not result
  770  in economic or physical harm to a person or adversely affect the
  771  public health, safety, or welfare or create a significant threat
  772  of such harm. If an agency under the direction of a cabinet
  773  officer mails to each licensee a notice of the designated rules
  774  at the time of licensure and at least annually thereafter, the
  775  provisions of paragraph (a) may be exercised at the discretion
  776  of the agency. Such notice shall include a subject-matter index
  777  of the rules and information on how the rules may be obtained.
  778         (c) The agency’s review and designation must be completed
  779  by December 1, 1995;
  780         1. No later than June 30, 2015, and thereafter within 3
  781  months after any request of the rules ombudsman in the Executive
  782  Office of the Governor, each agency shall review under the
  783  direction of the Governor shall make a report to the Governor,
  784  and each agency under the joint direction of the Governor and
  785  Cabinet shall report to the Governor and Cabinet by January 1,
  786  1996, on which of its rules and certify to the President of the
  787  Senate, the Speaker of the House of Representatives, the
  788  Administrative Procedures Committee, and the rules ombudsman
  789  those rules that have been designated as rules the violation of
  790  which would be a minor violation under paragraph (b), consistent
  791  with the legislative intent stated in subsection (1). The rules
  792  ombudsman shall promptly report the failure of an agency to
  793  timely complete the required review and file the required
  794  certification to the Governor, the President of the Senate, the
  795  Speaker of the House of Representatives, and the Administrative
  796  Procedures Committee.
  797         2. Beginning on July 1, 2015, each agency shall:
  798         a. Publish all rules that it has designated as rules the
  799  violation of which would be a minor violation, either as a
  800  complete list on the agency’s Internet website or by
  801  incorporation of the designations in the agency’s disciplinary
  802  guidelines, which shall be adopted as a rule.
  803         b. Ensure that all investigative and enforcement personnel
  804  are knowledgeable of the agency’s designations under this
  805  section.
  806         3. For each rule filed for adoption, the agency head shall
  807  certify whether any part of the rule is designated as a rule the
  808  violation of which would be a minor violation and shall update
  809  the listing required by sub-subparagraph 2.a.
  810         (d) The Governor or the Governor and Cabinet, as
  811  appropriate pursuant to paragraph (c), may evaluate the review
  812  and designation effects of each agency subject to the direction
  813  and supervision of such authority and may direct apply a
  814  different designation than that applied by such the agency.
  815         (e) Notwithstanding s. 120.52(1)(a), this section does not
  816  apply to:
  817         1. The Department of Corrections;
  818         2. Educational units;
  819         3. The regulation of law enforcement personnel; or
  820         4. The regulation of teachers.
  821         (f) Designation pursuant to this section is not subject to
  822  challenge under this chapter.
  823         Section 10. This act shall take effect July 1, 2014.
  824  
  825  ================= T I T L E A M E N D M E N T ================
  826  And the title is amended as follows:
  827         Delete everything before the enacting clause
  828  and insert:
  829                        A bill to be entitled                      
  830         An act relating to administrative procedures; amending
  831         s. 57.111, F.S.; providing conditions under which a
  832         proceeding is not substantially justified for purposes
  833         of an award under the Florida Equal Access to Justice
  834         Act; amending s. 120.54, F.S.; requiring agencies to
  835         publish its notice of rule development within 30 days
  836         if initiating rulemaking at the request of the
  837         petitioner; requiring an agency to publish its notice
  838         of proposed rule within 180 days of the notice of rule
  839         development; providing an exception; limiting reliance
  840         upon an unadopted rule in certain circumstances;
  841         amending s. 120.55, F.S.; providing for publication of
  842         notices of rule development and of rules filed for
  843         adoption; providing additional notice of rule
  844         development, proposals, and adoptions; amending s.
  845         120.56, F.S.; providing that the petitioner
  846         challenging a proposed rule or unadopted agency
  847         statement has the burden of going forward with
  848         evidence sufficient to support the petition; amending
  849         s. 120.569, F.S.; granting agencies additional time to
  850         render final orders in certain circumstances; amending
  851         s. 120.57, F.S.; conforming proceedings that oppose
  852         agency action based on an invalid or unadopted rule to
  853         proceedings used for challenging rules; requiring the
  854         agency to issue a notice stating whether the agency
  855         will rely on the challenged rule or alleged unadopted
  856         rule; authorizing the administrative law judge to make
  857         certain findings on the validity of certain alleged
  858         unadopted rules; authorizing the administrative law
  859         judge to issue a separate final order on certain rules
  860         and alleged unadopted rules; prohibiting agencies from
  861         rejecting specific conclusions of law; providing for
  862         stay of proceedings not involving disputed issues of
  863         fact upon timely filing of a rule challenge; providing
  864         that the final order terminates the stay; amending s.
  865         120.595, F.S.; requiring that a final order in
  866         specified administrative proceedings award all
  867         reasonable costs and attorney fees to a prevailing
  868         party under certain circumstances; revising the
  869         criteria used by an administrative law judge to
  870         determine whether a party participated in a proceeding
  871         for an improper purpose; removing certain exceptions
  872         from requirements that attorney fees and costs be
  873         rendered against the agency in proceedings in which
  874         the petitioner prevails in a rule challenge; requiring
  875         service of notice of invalidity to an agency before
  876         bringing a rule challenge as a condition precedent to
  877         award of attorney fees and costs; authorizing the
  878         recovery of reasonable attorney fees and costs
  879         incurred by a prevailing party in litigating
  880         entitlement to or quantification of underlying
  881         attorney fees and costs; removing certain limitations
  882         on such attorney fees and costs; removing
  883         redundancies; amending s. 120.68, F.S.; providing for
  884         appellate review of orders rendered in challenges to
  885         specified rules or unadopted rules; amending s.
  886         120.695, F.S.; removing obsolete provisions with
  887         respect to required agency review and designation of
  888         minor violations; requiring agency review and
  889         certification of minor violation rules by a specified
  890         date; requiring the reporting of agency failure to
  891         complete the review and file certification of such
  892         rules; requiring minor violation certification for all
  893         rules adopted after a specified date; requiring public
  894         notice; providing for applicability; providing an
  895         effective date.