HB 0023 2003
1	A bill to be entitled
2	An act relating to administrative procedures; amending s.
3	120.54, F.S.; revising language with respect to uniform
4	rules; providing requirements with respect to the
5	application of alleged facts to specific rules or
6	statutes; amending s. 120.569, F.S.; revising language
7	with respect to decisions which affect substantial
8	interest; providing for initial scheduling orders by the
9	administrative law judge; providing for a discovery
10	period; amending s. 120.57, F.S.; revising language with
11	respect to additional procedures applicable to hearings
12	involving disputed issues of material fact; providing that
13	an order relinquishing jurisdiction shall be rendered
14	under certain circumstances; amending s. 120.595, F.S.;
15	redefining the term “improper purpose” and conforming a
16	cross reference; providing for the award of reasonable
17	attorney’s fees and costs under certain circumstances;
18	amending s. 120.60, F.S.; revising language with respect
19	to licensing; amending s. 120.68, F.S.; revising language
20	with respect to judicial review; providing additional
21	grounds for certain petitions challenging an agency rule
22	as an invalid exercise of delegated legislative authority;
23	providing an effective date.
24
25	Be It Enacted by the Legislature of the State of Florida:
26
27	Section 1. Paragraph (b) of subsection (5) of section
28	120.54, Florida Statutes, is amended to read:
29	120.54 Rulemaking.--
30	(5) UNIFORM RULES.--
31	(b) The uniform rules of procedure adopted by the
32	commission pursuant to this subsection shall include, butare
33	notbelimited to:
34	1. Uniform rules for the scheduling of public meetings,
35	hearings, and workshops.
36	2. Uniform rules for use by each state agency that provide
37	procedures for conducting public meetings, hearings, and
38	workshops, and for taking evidence, testimony, and argument at
39	such public meetings, hearings, and workshops, in person and by
40	means of communications media technology. The rules shall
41	provide that all evidence, testimony, and argument presented
42	shall be afforded equal consideration, regardless of the method
43	of communication. If a public meeting, hearing, or workshop is
44	to be conducted by means of communications media technology, or
45	if attendance may be provided by such means, the notice shall so
46	state. The notice for public meetings, hearings, and workshops
47	utilizing communications media technology shall state how
48	persons interested in attending may do so and shall name
49	locations, if any, where communications media technology
50	facilities will be available. Nothing in this paragraph shall be
51	construed to diminish the right to inspect public records under
52	chapter 119. Limiting points of access to public meetings,
53	hearings, and workshops subject to the provisions of s. 286.011
54	to places not normally open to the public shall be presumed to
55	violate the right of access of the public, and any official
56	action taken under such circumstances is void and of no effect.
57	Other laws relating to public meetings, hearings, and workshops,
58	including penal and remedial provisions, shall apply to public
59	meetings, hearings, and workshops conducted by means of
60	communications media technology, and shall be liberally
61	construed in their application to such public meetings,
62	hearings, and workshops. As used in this subparagraph,
63	"communications media technology" means the electronic
64	transmission of printed matter, audio, full-motion video,
65	freeze-frame video, compressed video, and digital video by any
66	method available.
67	3. Uniform rules of procedure for the filing of notice of
68	protests and formal written protests.
69	4. Uniform rules of procedure for the filing of petitions
70	for administrative hearings pursuant to s. 120.569 or s. 120.57.
71	Such rules shallrequire the petition to stateinclude:
72	a. The identification of the petitioner.
73	b.A statement ofWhen and how the petitioner received
74	notice of the agency's action or proposed action.
75	c.An explanation ofHow the petitioner's substantial
76	interests are or will be affected by the action or proposed
77	action.
78	d.A statement ofAll material facts disputed by the
79	petitioner or a statement that there are no disputed facts.
80	e.A statement ofThe ultimate facts alleged, including a
81	statement of the specific facts the petitioner contends warrant
82	reversal or modification of the agency's proposed action.
83	f.A statement ofThe specific rules or statutesthatthe
84	petitioner contends require reversal or modification of the
85	agency's proposed actionand to explain how the alleged facts
86	relate to the specific rules or statutes.
87	g.A statement ofThe relief sought by the petitioner,
88	stating precisely the action petitioner wishes the agency to
89	take with respect to the proposed action.
90	5. Uniform rules of procedure for the filing and prompt
91	disposition of petitions for declaratory statements.
92	6. Provision of a method by which each agency head shall
93	provide a description of the agency's organization and general
94	course of its operations.
95	7. Uniform rules establishing procedures for granting or
96	denying petitions for variances and waivers pursuant to s.
97	120.542.
98	Section 2. Paragraph (o) is added to subsection (2) of
99	section 120.569, Florida Statutes, to read:
100	120.569 Decisions which affect substantial interests.--
101	(2)(o) On the request of any party, the administrative law
102	judge shall enter an initial scheduling order to facilitate the
103	just, speedy, and inexpensive determination of the proceeding.
104	The initial scheduling order shall establish a discovery period,
105	including a deadline by which all discovery shall be completed,
106	and the date by which the parties shall identify expert
107	witnesses and their opinions. The initial scheduling order also
108	may require the parties to meet and file a joint report by a
109	date certain.
110	Section 3. Paragraph (i) of subsection (1) of section
111	120.57, Florida Statutes, is amended to read:
112	120.57 Additional procedures for particular cases.--
113	(1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING
114	DISPUTED ISSUES OF MATERIAL FACT.--
115	(i) When, in any proceeding conducted pursuant to this
116	subsection, a dispute of material fact no longer exists, any
117	party may move the administrative law judge to relinquish
118	jurisdiction to the agency.An order relinquishing jurisdiction
119	shall be rendered if the administrative law judge determines
120	fromIn ruling on such a motion, the administrative law judge
121	may considerthe pleadings, depositions, answers to
122	interrogatories, and admissions on file, together with
123	supporting and opposing affidavits, if any, that no genuine
124	issue as to any material fact exists. If the administrative law
125	judge enters an order relinquishing jurisdiction, the agency may
126	promptly conduct a proceeding pursuant to subsection (2), if
127	appropriate, but the parties may not raise any issues of
128	disputed fact that could have been raised before the
129	administrative law judge. An order entered by an administrative
130	law judge relinquishing jurisdiction to the agency based upon a
131	determination that no genuine dispute of material fact exists,
132	need not contain findings of fact, conclusions of law, or a
133	recommended disposition or penalty.
134	Section 4. Paragraphs (c) and (e) of subsection (1) and
135	subsection (5) of section 120.595, Florida Statutes, are amended
136	to read:
137	120.595 Attorney's fees.--
138	(1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
139	120.57(1).--
140	(c) In proceedings pursuant to s. 120.57(1), and upon
141	motion, the administrative law judge shall determine whether any
142	party participated in the proceeding for an improper purpose as
143	defined by this subsectionand s. 120.569(2)(e). In making such
144	determination, the administrative law judge shall consider
145	whether the nonprevailing adverse party has participated in two
146	or more other such proceedings involving the same prevailing
147	party and the same project as an adverse party and in which such
148	two or more proceedings the nonprevailing adverse party did not
149	establish either the factual or legal merits of its position,
150	and shall consider whether the factual or legal position
151	asserted in the instant proceeding would have been cognizable in
152	the previous proceedings. In such event, it shall be rebuttably
153	presumed that the nonprevailing adverse party participated in
154	the pending proceeding for an improper purpose.
155	(e) For the purpose of this subsection:
156	1. "Improper purpose" means participation in a proceeding
157	pursuant to s. 120.57(1) primarily to harass or to cause
158	unnecessary delay or for frivolous purpose or to needlessly
159	increase the cost oflitigation,licensing,or securing the
160	approval of an activity.
161	2. "Costs" has the same meaning as the costs allowed in
162	civil actions in this state as provided in chapter 57.
163	3. "Nonprevailing adverse party" means a party that has
164	failed to have substantially changed the outcome of the proposed
165	or final agency action which is the subject of a proceeding. In
166	the event that a proceeding results in any substantial
167	modification or condition intended to resolve the matters raised
168	in a party's petition, it shall be determined that the party
169	having raised the issue addressed is not a nonprevailing adverse
170	party. The recommended order shall state whether the change is
171	substantial for purposes of this subsection. In no event shall
172	the term "nonprevailing party" or "prevailing party" be deemed
173	to include any party that has intervened in a previously
174	existing proceeding to support the position of an agency.
175	(5) APPEALS.--When there is an appeal, the court in its
176	discretion may award reasonable attorney's fees and reasonable
177	costs to the prevailing party if the court finds that the appeal
178	was frivolous, meritless, or an abuse of the appellate process,
179	or that the agency action which precipitated the appeal was a
180	gross abuse of the agency's discretion. Upon review of agency
181	action that precipitates an appeal, if the court finds that the
182	agency improperly rejected or modified findings of fact in a
183	recommended order, the court shall award reasonable attorney's
184	fees and reasonable costs to a prevailing appellant for the
185	administrative proceeding and the appellate proceeding.If the
186	court finds that the agency improperly rejected or modified a
187	conclusion of law or an interpretation of an administrative rule
188	over which it does not have substantive jurisdiction, the court
189	may award reasonable attorney’s fees and reasonable costs of the
190	appeal to the prevailing appellant.
191	Section 5. Subsection (1) of section 120.60, Florida
192	Statutes, is amended to read:
193	120.60 Licensing.--
194	(1) Upon receipt of an application for a license, an
195	agency shall examine the application and, within 30 days after
196	such receipt, notify the applicant of any apparent errors or
197	omissions and request any additional information the agency is
198	permitted by law to require. An agency shall not deny a license
199	for failure to correct an error or omission or to supply
200	additional information unless the agency timely notified the
201	applicant within this 30-day period. An application shall be
202	considered complete upon receipt of all requested information
203	and correction of any error or omission for which the applicant
204	was timely notified or when the time for such notification has
205	expired. Every application for a license shall be approved or
206	denied within 90 days after receipt of a completed application
207	unless a shorter period of time for agency action is provided by
208	law. The 90-day time period shall be tolled by the initiation of
209	a proceeding under ss. 120.569 and 120.57.AnyAnapplication
210	for a licensethat is notmust beapproved or denied within the
211	90-day or shorter time period, within 15 days afterthe
212	conclusion of a public hearing held on the application, or
213	within 45 days after a recommended order is submitted to the
214	agency and the parties, whicheveraction and timeframeislatest
215	and applicable, is considered approved unless the recommended
216	order recommends that the agency deny the license. Subject to
217	the satisfactory completion of an examination if required as a
218	prerequisite to licensure, any license that is considered
219	approved shall be issued and may include such reasonable
220	conditions as are authorized by lawlater. The agency must
221	approve any application for a license or for an examination
222	required for licensure if the agency has not approved or denied
223	the application within the time periods prescribed by this
224	subsection.
225	Section 6. Subsection (9) of section 120.68, Florida
226	Statutes, is amended to read:
227	120.68 Judicial review.--
228	(9) No petition challenging an agency rule as an invalid
229	exercise of delegated legislative authority shall be instituted
230	pursuant to this section, except to review an order entered
231	pursuant to a proceeding under s. 120.56or an agency’s findings
232	of immediate danger, necessity, and procedural fairness
233	prerequisite to the adoption of an emergency rule pursuant to s.
234	120.54(4), unless the sole issue presented by the petition is
235	the constitutionality of a rule and there are no disputed issues
236	of fact.
237	Section 7. This act shall take effect upon becoming a law.
238