CODING: Words stricken are deletions; words underlined are additions.
                                                  SENATE AMENDMENT
    Bill No. CS for SB 1274
    Amendment No. ___
                            CHAMBER ACTION
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11  Senator King moved the following amendment:
12
13         Senate Amendment (with title amendment) 
14         On page 16, between lines 20 and 21,
15
16  insert:
17         Section 6.  Paragraph (d) of subsection (3) and
18  paragraph (d) of subsection (4) of section 57.111, Florida
19  Statutes, are amended to read:
20         57.111  Civil actions and administrative proceedings
21  initiated by state agencies; attorneys' fees and costs.--
22         (3)  As used in this section:
23         (d)  The term "small business party" means:
24         1.a.  A sole proprietor of an unincorporated business,
25  including a professional practice, whose principal office is
26  in this state, who is domiciled in this state, and whose
27  business or professional practice has, at the time the action
28  is initiated by a state agency, not more than 25 full-time
29  employees or a net worth of not more than $5 $5 million,
30  including both personal and business investments; or
31         b.  A partnership or corporation, including a
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                                                  SENATE AMENDMENT
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    Amendment No. ___
  1  professional practice, which has its principal office in this
  2  state and has at the time the action is initiated by a state
  3  agency not more than 25 full-time employees or a net worth of
  4  not more than $5 $2 million; or
  5         2.  Either small business party as defined in
  6  subparagraph 1., without regard to the number of its employees
  7  or its net worth, in any action under s. 72.011 or in any
  8  administrative proceeding under that section to contest the
  9  legality of any assessment of tax imposed for the sale or use
10  of services as provided in chapter 212, or interest thereon,
11  or penalty therefor.
12         (4)
13         (d)  The court, or the administrative law judge in the
14  case of a proceeding under chapter 120, shall promptly conduct
15  an evidentiary hearing on the application for an award of
16  attorney's fees and shall issue a judgment, or a final order
17  in the case of an administrative law judge.  The final order
18  of an administrative law judge is reviewable in accordance
19  with the provisions of s. 120.68.  If the court affirms the
20  award of attorney's fees and costs in whole or in part, it
21  may, in its discretion, award additional attorney's fees and
22  costs for the appeal.
23         1.  No award of attorney's fees and costs shall be made
24  in any case in which the state agency was a nominal party.
25         2.  No award of attorney's fees and costs for an action
26  initiated by a state agency shall exceed $50,000 $15,000.
27         Section 7.  Paragraph (e) of subsection (2) of section
28  120.569, Florida Statutes, is amended to read:
29         120.569  Decisions which affect substantial
30  interests.--
31         (2)
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                                                  SENATE AMENDMENT
    Bill No. CS for SB 1274
    Amendment No. ___
  1         (e)1.  Every pleading, written motion, and other paper
  2  filed in a proceeding must be signed by at least one attorney
  3  or qualified representative of record in the attorney's or
  4  qualified representative's individual name, or, if the party
  5  is not represented by an attorney or qualified representative,
  6  the pleading, written motion, or other paper must be signed by
  7  the party. An unsigned paper shall be stricken unless omission
  8  of the signature is corrected promptly after being called to
  9  the attention of the attorney, qualified representative, or
10  party.
11         2.  By presenting a pleading, written motion, or other
12  paper, whether by signing, filing, submitting, or later
13  advocating, an attorney, qualified representative, or
14  unrepresented party is certifying that, to the best of the
15  person's knowledge, information, and belief, formed after an
16  inquiry reasonable under the circumstances:
17         a.  The pleading, written motion, or other paper is not
18  being presented for any improper purpose, such as to harass or
19  to cause unnecessary delay or needless increase in the cost of
20  litigation;
21         b.  The claims, defenses, and other legal contentions
22  contained in the pleading, written motion, or other paper are
23  warranted by existing law or by a nonfrivolous argument for
24  the extension, modification, or reversal of existing law or
25  the establishment of new law;
26         c.  The allegations and other factual contentions have
27  evidentiary support or, if specifically identified, are likely
28  to have evidentiary support after a reasonable opportunity for
29  further investigation or discovery; and
30         d.  The denials of factual contentions are warranted on
31  the evidence or, if specifically identified, are reasonably
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                                                  SENATE AMENDMENT
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    Amendment No. ___
  1  based on a lack of information or belief.
  2         3.  If, after notice and a reasonable opportunity to
  3  respond, the presiding officer determines that subparagraph 2.
  4  has been violated, the presiding officer shall impose an
  5  appropriate sanction against the person who signed it, the
  6  represented party, or both, which must include an order to pay
  7  the other party or parties the amount of reasonable expenses
  8  incurred because of the filing of the pleading, motion, or
  9  other paper, including reasonable attorney's fees. However:
10         a.  Monetary sanctions may not be awarded against a
11  represented party for a violation of sub-subparagraph 2.b.
12         b.  Monetary sanctions may not be awarded under this
13  paragraph based on a violation of discovery rules, which are
14  subject to sanctions under paragraph (f).
15         c.  This paragraph does not authorize the award of
16  sanctions against any person who comments on or objects to a
17  draft permit during an authorized period for public comment or
18  at a public hearing.
19         4.  Sanctions under this paragraph may be initiated at
20  any time after the initiation of a proceeding either by motion
21  or on the presiding officer's own initiative. A motion shall
22  describe the specific conduct alleged to violate subparagraph
23  2. The motion shall be served upon the attorney or qualified
24  representative of a party or an unrepresented party against
25  whom such sanctions are sought and shall be filed with the
26  presiding officer. However, such motion shall not be acted
27  upon by the presiding officer or called up for hearing by the
28  movant unless, within 14 days after service of the motion, or
29  such other period as the presiding officer may prescribe, the
30  challenged paper, claim, defense, contention, allegation, or
31  denial is not withdrawn or appropriately corrected. A
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                                                  SENATE AMENDMENT
    Bill No. CS for SB 1274
    Amendment No. ___
  1  presiding officer's own initiative to impose sanctions may be
  2  undertaken only after entering an order describing the
  3  specific conduct that appears to violate subparagraph 2. and
  4  directing the attorney or qualified representative of a party
  5  or the unrepresented party to show cause why subparagraph 2.
  6  has not been violated. When imposing sanctions, the presiding
  7  officer shall describe the conduct determined to constitute a
  8  violation of subparagraph 2. and explain the basis for the
  9  sanction imposed. All pleadings, motions, or other papers
10  filed in the proceeding must be signed by the party, the
11  party's attorney, or the party's qualified representative. The
12  signature constitutes a certificate that the person has read
13  the pleading, motion, or other paper and that, based upon
14  reasonable inquiry, it is not interposed for any improper
15  purposes, such as to harass or to cause unnecessary delay, or
16  for frivolous purpose or needless increase in the cost of
17  litigation. If a pleading, motion, or other paper is signed in
18  violation of these requirements, the presiding officer shall
19  impose upon the person who signed it, the represented party,
20  or both, an appropriate sanction, which may include an order
21  to pay the other party or parties the amount of reasonable
22  expenses incurred because of the filing of the pleading,
23  motion, or other paper, including a reasonable attorney's fee.
24         Section 8.  Paragraphs (c) and (e) of subsection (1) of
25  section 120.595, Florida Statutes, are amended to read:
26         120.595  Attorney's fees.--
27         (1)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
28  120.57(1).--
29         (c)  In proceedings pursuant to s. 120.57(1), and upon
30  motion, the administrative law judge shall determine whether
31  any party participated in the proceeding for an improper
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                                                  SENATE AMENDMENT
    Bill No. CS for SB 1274
    Amendment No. ___
  1  purpose as defined by this subsection and s. 120.569(2)(e). In
  2  making such determination, the administrative law judge shall
  3  consider whether the nonprevailing adverse party has
  4  participated in two or more other such proceedings involving
  5  the same prevailing party and the same project as an adverse
  6  party and in which such two or more proceedings the
  7  nonprevailing adverse party did not establish either the
  8  factual or legal merits of its position, and shall consider
  9  whether the factual or legal position asserted in the instant
10  proceeding would have been cognizable in the previous
11  proceedings. In such event, it shall be rebuttably presumed
12  that the nonprevailing adverse party participated in the
13  pending proceeding for an improper purpose.
14         (e)  For the purpose of this subsection:
15         1.  "Improper purpose" means participation in a
16  proceeding pursuant to s. 120.57(1) primarily to harass or to
17  cause unnecessary delay or for frivolous purpose or to
18  needlessly increase the cost of litigation, licensing, or
19  securing the approval of an activity.
20         2.  "Costs" has the same meaning as the costs allowed
21  in civil actions in this state as provided in chapter 57.
22         3.  "Nonprevailing adverse party" means a party that
23  has failed to have substantially changed the outcome of the
24  proposed or final agency action which is the subject of a
25  proceeding. In the event that a proceeding results in any
26  substantial modification or condition intended to resolve the
27  matters raised in a party's petition, it shall be determined
28  that the party having raised the issue addressed is not a
29  nonprevailing adverse party.  The recommended order shall
30  state whether the change is substantial for purposes of this
31  subsection. In no event shall the term "nonprevailing party"
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                                                  SENATE AMENDMENT
    Bill No. CS for SB 1274
    Amendment No. ___
  1  or "prevailing party" be deemed to include any party that has
  2  intervened in a previously existing proceeding to support the
  3  position of an agency.
  4         Section 9.  Subsection (1) of section 373.114, Florida
  5  Statutes, is amended to read:
  6         373.114  Land and Water Adjudicatory Commission; review
  7  of district rules and orders; department review of district
  8  rules.--
  9         (1)  Except as provided in subsection (2), the Governor
10  and Cabinet, sitting as the Land and Water Adjudicatory
11  Commission, have the exclusive authority to review any order
12  or rule of a water management district, other than a rule
13  relating to an internal procedure of the district or an order
14  resulting from an evidentiary hearing held pursuant to s.
15  120.569 or s. 120.57, to ensure consistency with the
16  provisions and purposes of this chapter. Subsequent to the
17  legislative ratification of the delineation methodology
18  pursuant to s. 373.421(1), this subsection also shall apply to
19  an order of the department, or a local government exercising
20  delegated authority, pursuant to ss. 373.403-373.443, except
21  an order pertaining to activities or operations subject to
22  conceptual plan approval pursuant to chapter 378 or an order
23  resulting from an evidentiary hearing held pursuant to s.
24  120.569 or s. 120.57.
25         (a)  Such review may be initiated by the department or
26  by a party to the proceeding below by filing a request for
27  review with the Land and Water Adjudicatory Commission and
28  serving a copy on the department and on any person named in
29  the rule or order within 20 days after adoption of the rule or
30  the rendering of the order. For the purposes of this section,
31  the term "party" means any affected person who submitted oral
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                                                  SENATE AMENDMENT
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    Amendment No. ___
  1  or written testimony, sworn or unsworn, of a substantive
  2  nature which stated with particularity objections to or
  3  support for the rule or order that are cognizable within the
  4  scope of the provisions and purposes of this chapter, or any
  5  person who participated as a party in a proceeding challenging
  6  the validity of a rule instituted pursuant to chapter 120.  In
  7  order for the commission to accept a request for review
  8  initiated by a party below, with regard to a specific order,
  9  four members of the commission must determine on the basis of
10  the record below that the activity authorized by the order
11  would substantially affect natural resources of statewide or
12  regional significance. Review of an order may also be accepted
13  if four members of the commission determine that the order
14  raises issues of policy, statutory interpretation, or rule
15  interpretation that have regional or statewide significance
16  from the standpoint of agency precedent. The party requesting
17  the commission to review an order must allege with
18  particularity, and the commission must find, that:
19         1.  The order is in conflict with statutory
20  requirements; or
21         2.  The order is in conflict with the requirements of a
22  duly adopted rule.
23         (b)  Review by the Land and Water Adjudicatory
24  Commission is appellate in nature and shall be based solely on
25  the record below.  If there was no evidentiary administrative
26  proceeding below, the facts contained in the proposed agency
27  action, including any technical staff report, shall be deemed
28  undisputed.  The matter shall be heard by the commission not
29  more than 60 days after receipt of the request for review,
30  unless waived by the parties.
31         (c)  If the Land and Water Adjudicatory Commission
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  1  determines that a rule of a water management district is not
  2  consistent with the provisions and purposes of this chapter,
  3  it may require the water management district to initiate
  4  rulemaking proceedings to amend or repeal the rule.  If the
  5  commission determines that an order is not consistent with the
  6  provisions and purposes of this chapter, the commission may
  7  rescind or modify the order or remand the proceeding for
  8  further action consistent with the order of the Land and Water
  9  Adjudicatory Commission only if the commission determines that
10  the activity authorized by the order would substantially
11  affect natural resources of statewide or regional
12  significance.  In the case of an order which does not itself
13  substantially affect natural resources of statewide or
14  regional significance, but which raises issues of policy that
15  have regional or statewide significance from the standpoint of
16  agency precedent, the commission may direct the district to
17  initiate rulemaking to amend its rules to assure that future
18  actions are consistent with the provisions and purposes of
19  this chapter without modifying the order.
20         (d)  In a review under this section of a construction
21  permit issued pursuant to a conceptual permit under part IV,
22  which conceptual permit is issued after July 1, 1993, a party
23  to the review may not raise an issue which was or could have
24  been raised in a review of the conceptual permit under this
25  section.
26         (e)  A request for review under this section shall not
27  be a precondition to the seeking of judicial review pursuant
28  to s. 120.68 or the seeking of an administrative determination
29  of rule validity pursuant to s. 120.56.
30         (f)  The Florida Land and Water Adjudicatory Commission
31  may adopt rules to set forth its procedures for reviewing an
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  1  order or rule of a water management district consistent with
  2  the provisions of this section.
  3         (g)  For the purpose of this section, it shall be
  4  presumed that activity authorized by an order will not affect
  5  resources of statewide or regional significance if the
  6  proposed activity:
  7         1.  Occupies an area less than 10 acres in size, and
  8         2.  Does not create impervious surfaces greater than 2
  9  acres in size, and
10         3.  Is not located within 550 feet of the shoreline of
11  a named body of water designated as Outstanding Florida
12  Waters, and
13         4.  Does not adversely affect threatened or endangered
14  species.
15
16  This paragraph shall not operate to hold that any activity
17  that exceeds these limits is presumed to affect resources of
18  statewide or regional significance.  The determination of
19  whether an activity will substantially affect resources of
20  statewide or regional significance shall be made on a
21  case-by-case basis, based upon facts contained in the record
22  below.
23         Section 10.  Subsection (5) of section 403.412, Florida
24  Statutes, is amended to read:
25         403.412  Environmental Protection Act.--
26         (5)  In any administrative, licensing, or other
27  proceedings authorized by law for the protection of the air,
28  water, or other natural resources of the state from pollution,
29  impairment, or destruction, the Department of Legal Affairs, a
30  political subdivision or municipality of the state, or a
31  citizen of the state shall have standing to intervene as a
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  1  party on the filing of a verified pleading asserting that the
  2  activity, conduct, or product to be licensed or permitted has
  3  or will have the effect of impairing, polluting, or otherwise
  4  injuring the air, water, or other natural resources of the
  5  state. However, a citizen of this state whose substantial
  6  interests have not been determined by agency action may not
  7  institute, initiate, petition, or request a proceeding
  8  pursuant to s. 120.569 or s. 120.57. This subsection does not
  9  limit the ability of a nonprofit corporation or association,
10  organized in whole or in part to promote conservation, to
11  protect the environment or other biological values, or to
12  preserve historical sites to initiate, petition, or request a
13  proceeding pursuant to s. 120.569 or s. 120.57 upon asserting
14  in a verified petition that the activity, conduct, or product
15  to be licensed or permitted has or will have the effect of
16  impairing, polluting, or otherwise injuring the air, water, or
17  other natural resources of the state.  The verified petition
18  must also assert and be subject to subsequent proof, that the
19  corporation or association itself, or a substantial number of
20  its members, have substantial interests that will be affected
21  by the conduct, activity, or product to be licensed or
22  permitted.  Such substantial interests include the use and
23  enjoyment of the air, water, or other natural resources of the
24  state that will be affected as a result of the issuance of a
25  license or permit.
26         Section 11.  Paragraph (b) of subsection (1) of section
27  120.52, Florida Statutes, is amended to read:
28         120.52  Definitions.--As used in this act:
29         (1)  "Agency" means:
30         (b)  Each:
31         1.  State officer and state department, and each
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                                                  SENATE AMENDMENT
    Bill No. CS for SB 1274
    Amendment No. ___
  1  departmental unit described in s. 20.04.
  2         2.  State authority, including a regional water supply
  3  authority.
  4         3.  State board.
  5         4.  State commission, including the Commission on
  6  Ethics and the Fish and Wildlife Conservation Commission when
  7  acting pursuant to statutory authority derived from the
  8  Legislature.
  9         5.  Regional planning agency.
10         6.  Multicounty special district with a majority of its
11  governing board comprised of nonelected persons.
12         7.  Educational units.
13         8.  Entity described in chapters 163, 373, 380, and 582
14  and s. 186.504.
15
16  This definition does not include any legal entity or agency
17  created in whole or in part pursuant to chapter 361, part II,
18  an expressway authority pursuant to chapter 348, any legal or
19  administrative entity created by an interlocal agreement
20  pursuant to s. 163.01(7), unless any party to such agreement
21  is otherwise an agency as defined in this subsection, or any
22  multicounty special district with a majority of its governing
23  board comprised of elected persons; however, this definition
24  shall include a regional water supply authority.
25
26  (Redesignate subsequent sections.)
27
28
29  ================ T I T L E   A M E N D M E N T ===============
30  And the title is amended as follows:
31         On page 2, line 5, after the semicolon
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    Amendment No. ___
  1  and insert:
  2         amending s. 57.111, F.S.; increasing the
  3         maximum net worth for qualification as a small
  4         business party under the Florida Equal Access
  5         to Justice Act; increasing the limitation on
  6         the amount of attorney's fees and costs that
  7         may be awarded under the act; amending s.
  8         120.569, F.S.; revising requirements for
  9         pleadings, motions, and other papers filed
10         under ch. 120, F.S.; providing for sanctions,
11         including an award of attorney's fees; amending
12         s. 120.595, F.S.; redefining the term "improper
13         purpose" for purposes of provisions authorizing
14         challenges to agency action; amending s.
15         373.114, F.S.; providing that water management
16         district orders resulting from certain
17         evidentiary hearings are not subject to the
18         Land and Water Adjudicatory Commission's review
19         authority; amending s. 403.412, F.S.; providing
20         that a citizen of this state who is not a
21         substantially affected person may not initiate
22         certain administrative proceedings under the
23         Environmental Protection Act of 1971; amending
24         s. 120.52, F.S.; clarifying which governmental
25         entities are subject to the Administrative
26         Procedure Act;
27
28
29
30
31
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