Florida Senate - 2008 PROPOSED COMMITTEE SUBSTITUTE

Bill No. CS for SB 928

552926

585-08013-08

Proposed Committee Substitute by the Committee on Governmental

Operations

A bill to be entitled

An act relating to economic development; amending ss.

11.908 and 11.911, F.S.; requiring that the report of the

Small Business Regulatory Advisory Council be included in

recommendations of the Joint Legislative Sunset Committee;

amending s. 11.919, F.S.; requiring agency assistance to

the Small Business Regulatory Advisory Council;

authorizing the council to inspect agency documents;

amending s. 120.54, F.S.; requiring state agencies to

prepare statements of estimated regulatory costs;

requiring agency notification to the Small Business

Regulatory Advisory Council relating to proposed agency

action affecting small businesses; requiring the agency to

adopt regulatory alternatives offered by the council under

certain circumstances; providing for extending the period

for filing a rule when regulatory alternatives are offered

by the council; providing for outside review of regulatory

alternatives that are not adopted by the agency and for

the agency to respond; amending s. 120.74, F.S.; requiring

biennial rule review by each agency to consider the impact

of rules on small businesses; requiring that the results

be included in a report to the Legislature; creating s.

288.7001, F.S.; providing a short title; providing

definitions; creating the Small Business Regulatory

Advisory Council; providing for appointments, membership,

and meetings; providing an administrative location for the

council; providing powers and limitations of the council;

providing for coordinated review of agency rules by the

council as part of agency sunset review; providing

timelines for review; requiring that the council issue a

business-friendly scorecard of agency rules; creating s.

288.7002, F.S.; providing definitions; providing for the

selection of a Small Business Advocate; providing for

preferred qualifications of the advocate; providing duties

of the advocate; providing for agency cooperation with the

advocate; providing for an annual report by the advocate

to the Governor and Legislature; providing an effective

date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Subsection (2) of section 11.908, Florida

Statutes, is amended to read:

11.908 Committee duties.--No later than March 1 of the year

in which a state agency or its advisory committees are scheduled

to be reviewed, the committee shall and the joint committee may:

(2) Consult with the Legislative Budget Commission, the

Small Business Regulatory Advisory Council, relevant substantive

and appropriations committees of the Senate and the House of

Representatives, the Governor's Office of Policy and Budgeting,

the Auditor General, and the Chief Financial Officer, or their

successors, relating to the review of the agency and its advisory

committees.

Section 2. Paragraph (a) of subsection (2) of section

11.911, Florida Statutes, is amended to read:

11.911 Committee recommendations.--

(2) In its report on a state agency, the joint committee

shall:

(a) Make recommendations on the abolition, continuation, or

reorganization of each state agency and its advisory committees

and on the need for the performance of the functions of the

agency and its advisory committees. If the committee recommends

continuation or reorganization, the committee shall include in

its recommendations the report of the Small Business Regulatory

Advisory Council, as provided in s. 288.7001, regarding the rules

of each agency.

Section 3. Section 11.919, Florida Statutes, is amended to

read:

11.919 Assistance of and access to state agencies.--

(1) The committee and the Small Business Regulatory

Advisory Council may access or request information and request

the assistance of state agencies and officers. When assistance is

requested, a state agency or officer shall assist the committee

and the Small Business Regulatory Advisory Council.

Section 4. Paragraph (b) of subsection (3) of section

120.54, Florida Statutes, is amended to read:

120.54 Rulemaking.--

(3) ADOPTION PROCEDURES.--

(b) Special matters to be considered in rule adoption.--

1. Statement of estimated regulatory costs.--Prior to the

adoption, amendment, or repeal of any rule other than an

emergency rule, an agency is encouraged to prepare a statement of

estimated regulatory costs of the proposed rule, as provided by

s. 120.541. However, an agency shall prepare a statement of

estimated regulatory costs of the proposed rule, as provided by

s. 120.541, if the proposed rule will have an impact on small

businesses.

2. Small businesses, small counties, and small cities.--

a. Each agency, before the adoption, amendment, or repeal

of a rule, shall consider the impact of the rule on small

businesses as defined by s. 288.703 and the impact of the rule on

small counties or small cities as defined by s. 120.52. Whenever

practicable, an agency shall tier its rules to reduce

disproportionate impacts on small businesses, small counties, or

small cities to avoid regulating small businesses, small

counties, or small cities that do not contribute significantly to

the problem the rule is designed to address. An agency may define

"small business" to include businesses employing more than 100

persons, may define "small county" to include those with

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populations of more than 75,000, and may define "small city" to

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include those with populations of more than 10,000, if it finds

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that such a definition is necessary to adapt a rule to the needs

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and problems of small businesses, small counties, or small

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cities. The agency shall consider each of the following methods

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for reducing the impact of the proposed rule on small businesses,

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small counties, and small cities, or any combination of these

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entities:

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(I) Establishing less stringent compliance or reporting

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requirements in the rule.

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(II) Establishing less stringent schedules or deadlines in

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the rule for compliance or reporting requirements.

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(III) Consolidating or simplifying the rule's compliance or

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reporting requirements.

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(IV) Establishing performance standards or best-management

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practices to replace design or operational standards in the rule.

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(V) Exempting small businesses, small counties, or small

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cities from any or all requirements of the rule.

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b.(I) If the agency determines that the proposed action

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will affect small businesses as defined by the agency as provided

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in sub-subparagraph a., the agency shall send written notice of

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the rule to the Small Business Regulatory Advisory Council at

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least ombudsman of the Office of Tourism, Trade, and Economic

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Development not less than 28 days prior to the intended action.

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(II) Each agency shall adopt those regulatory alternatives

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offered by the Small Business Regulatory Advisory Council

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ombudsman and provided to the agency no later than 21 days after

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the council's ombudsman's receipt of the written notice of the

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rule which it finds are feasible and consistent with the stated

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objectives of the proposed rule and which would reduce the impact

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on small businesses. When regulatory alternatives are offered by

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the council Small Business ombudsman, the 90-day period for

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filing the rule in subparagraph (e)2. is extended for a period of

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21 days.

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(III) If an agency does not adopt all alternatives offered

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pursuant to this sub-subparagraph, it shall, prior to rule

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adoption or amendment and pursuant to subparagraph (d)1., file a

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detailed written statement with the committee explaining the

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reasons for failure to adopt such alternatives. Within 3 working

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days after of the filing of such notice, the agency shall send a

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copy of such notice to the Small Business Regulatory Advisory

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Council ombudsman. The council may request that the President of

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the Senate and the Speaker of the House of Representatives direct

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the Office of Program Policy Analysis and Government

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Accountability to determine whether the rejected alternatives

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reduce the impact on small businesses while meeting the stated

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objectives of the proposed rule. Within 60 days after the date of

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the directive from the presiding officers, the Office of Program

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Policy Analysis and Government Accountability shall report to the

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Administrative Procedures Committee its findings as to whether

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the rejected alternatives would reduce the impact on small

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businesses while meeting the stated objectives of the proposed

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rule. The Office of Program Policy Analysis and Government

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Accountability shall consider the proposed rule, the economic

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impact statement, the written statement of the agency, the

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proposed alternatives, and any comment submitted during the

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comment period on the proposed rule. The Office of Program Policy

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Analysis and Government Accountability shall submit a report of

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its findings and recommendations to the Governor, the President

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of the Senate, and the Speaker of the House of Representatives.

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The Administrative Procedures Committee shall report such

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findings to the agency and the agency shall respond in writing to

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the Administrative Procedures Committee if the Office of Program

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Policy Analysis and Government Accountability found that the

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regulatory alternatives would reduce the impact on small

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businesses while meeting the stated objectives of the proposed

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rule. If the agency does not adopt the regulatory alternatives,

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it must also provide a detailed written statement to the

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Administrative Procedures Committee as to why it will not adopt

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the alternatives.

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Section 5. Subsection (1) of section 120.74, Florida

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Statutes, is amended to read:

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120.74 Agency review, revision, and report.--

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(1) Each agency shall review and revise its rules as often

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as necessary to ensure that its rules are correct and comply with

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statutory requirements. Additionally, each agency shall perform a

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formal review of its rules every 2 years. In the review, each

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agency must:

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(a) Identify and correct deficiencies in its rules;

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(b) Clarify and simplify its rules;

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(d) Delete rules that are redundant of statutes;

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(e) Seek to improve efficiency, reduce paperwork, or

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decrease costs to government and the private sector; and

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(f) Contact agencies that have concurrent or overlapping

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jurisdiction to determine whether their rules can be coordinated

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to promote efficiency, reduce paperwork, or decrease costs to

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government and the private sector; and.

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(g) Determine whether the rules should be continued without

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change or should be amended or repealed to reduce the impact on

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small businesses while meeting the stated objectives of the

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proposed rule.

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(2) Beginning October 1, 1997, and by October 1 of every

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other year thereafter, the head of each agency shall file a

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report with the President of the Senate, the Speaker of the House

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of Representatives, and the committee, with a copy to each

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appropriate standing committee of the Legislature, which

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certifies that the agency has complied with the requirements of

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this subsection. The report must specify any changes made to its

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rules as a result of the review and, when appropriate, recommend

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statutory changes that will promote efficiency, reduce paperwork,

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or decrease costs to government and the private sector. The

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report must specifically address the economic impact of the rules

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on small businesses. The report must identify the types of cases

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or disputes in which the agency is involved which should be

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conducted under the summary hearing process described in s.

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120.574.

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Section 6. Section 288.7001, Florida Statutes, is created

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to read:

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288.7001 Small Business Regulatory Advisory Council.--

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(1) SHORT TITLE.--This section may be cited as the "Small

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Business Regulatory Relief Act."

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(2) DEFINITIONS.--As used in this section, the term:

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(a) "Agency" has the same meaning as provided in s. 120.52.

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(b) "Council" means the Small Business Regulatory Advisory

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Council.

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(d) "Small business" has the same meaning as provided in s.

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288.703.

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(3) CREATION OF SMALL BUSINESS REGULATORY ADVISORY COUNCIL;

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MEMBERSHIP; POWERS AND DUTIES.--

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(a) The Small Business Regulatory Advisory Council is

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created. The council shall consist of nine members who are

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current or former small business owners, three appointed by the

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Governor, three appointed by the President of the Senate, and

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three appointed by the Speaker of the House of Representatives.

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The initial appointments to the council must be made by September

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1, 2008. The members shall be from different geographic regions

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of the state. Members shall be appointed to 4-year terms; however

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in order to establish staggered terms, for the initial

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appointments, each appointing official shall appoint one member

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to a 2-year term and two members to a 4-year term. A member may

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not serve more than three consecutive terms. Members shall select

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the chairperson from among the members of the council. The

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council shall meet quarterly or upon the call of the chairperson.

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A majority of the members constitutes a quorum for the conduct of

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business. Members of the council shall serve without

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compensation. The appointing official may remove his or her

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appointee without cause at any time. A member whose term has

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expired shall continue to serve on the council until such time as

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a replacement is appointed. Vacancies shall be filled for the

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remainder of the term and by the original appointing official.

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(b) The council is established, assigned to, and

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administratively housed within the Florida Small Business

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Development Center Network, which shall provide staff support to

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the council.

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1. Provide agencies with recommendations regarding proposed

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rules or programs that may adversely affect small businesses;

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2. Consider requests from small business owners to review

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rules or programs adopted by an agency;

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3. Consider requests from small business owners to review

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small business owners' private property rights related to rules

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or programs adopted or implemented by an agency; and

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4. Review rules adopted by an agency to determine whether a

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rule places an unnecessary burden on small businesses and make

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recommendations to the agency to mitigate the adverse effects.

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(d) The council may not:

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1. Initiate or intervene in any administrative or judicial

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proceeding; or

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2. Issue subpoenas.

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(e) The council shall prepare and submit a written annual

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report to the Governor, the President of the Senate, and the

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Speaker of the House of Representatives which describes the

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activities and recommendations of the council.

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(4) PERIODIC REVIEW OF RULES.--

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(a) In coordination with the review schedule provided in s.

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11.905, the council may review rules of agencies subject to

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sunset review in order to determine whether the rules should be

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continued without change or should be amended or repealed to

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reduce the impact of the rules on small businesses, subject to

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the requirement that the recommendations of the council must be

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feasible and consistent with the stated objectives of the rules.

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(b) In reviewing agency rules to reduce the impact on small

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businesses, the council, in coordination with the agency, shall

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consider the following factors:

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1. Continued need for the rule;

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2. The nature of complaints or comments received from the

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public concerning the rule;

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3. The complexity of the rule;

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4. The extent to which the rule overlaps, duplicates, or

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conflicts with other federal, state, or local government rules;

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and

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5. The length of time since the rule has been evaluated or

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the degree to which technology, economic conditions, or other

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factors have changed in the topical area affected by the rule.

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the Joint Legislative Sunset Committee pursuant to s. 11.907, the

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council shall provide a report to the Governor, the President of

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the Senate, the Speaker of the House of Representatives, and the

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Joint Legislative Sunset Committee which includes recommendations

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and evaluations of agency rules and programs regarding regulatory

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fairness for small businesses. A component of the report shall be

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a rating system, developed by the council, entitled "Small

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Business Friendliness and Development Scorecard."

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Section 7. Section 288.7002, Florida Statutes, is created

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to read:

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288.7002 Small Business Advocate.--

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(1) DEFINITIONS.--As used in this section, the term:

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(a) "Advocate" means the Florida Small Business Advocate

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who is also the director of the Office of Small Business

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Advocate.

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(b) "Director" means the director of the Office of Small

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Business Advocate.

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(2) ADMINISTRATION.--The Office of Small Business Advocate

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is established, assigned to, and administratively housed within

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the Florida Small Business Development Center Network. The

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director shall be the Florida Small Business Advocate.

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(3) DIRECTOR OF THE OFFICE OF SMALL BUSINESS ADVOCATE;

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APPOINTMENT; DUTIES.--

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(a) The advocate shall be selected by the director of the

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Florida Small Business Development Center Network, and shall be

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an employee of or under contract with the Florida Small Business

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Development Center Network. Preferred qualifications for the

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advocate include at least 5 years' experience in small

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businesses, extensive knowledge of the issues and challenges of

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importance to small businesses, and actual experience in advocacy

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for and assistance to small businesses.

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(b) The duties and functions of the advocate include all of

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the following:

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1. Act as staff for the Small Business Regulatory Advisory

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Council.

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2. Serve as principal advocate in the state on behalf of

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small businesses, including, but not limited to, advisory

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participation in the consideration of all legislation and

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administrative rules that affect small businesses, and advocacy

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concerning state policy and programs related to small businesses

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with respect to disaster preparedness and recovery, including the

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provision technical assistance.

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3. Represent the views and interests of small businesses

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before agencies whose policies and activities may affect small

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businesses. Among other activities, the advocate may encourage

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standardized applications and information packages that would

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include all the information needed by each agency that a business

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has to deal with in order to prevent an applicant from having to

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fill out duplicative information on forms from various agencies.

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4. Enlist the cooperation and assistance of public and

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private agencies, businesses, and other organizations in

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disseminating information about the programs and services

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provided by all levels of government which are of benefit to

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small businesses, and information on how small businesses can

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participate in, or make use of, those programs and services.

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5. Issue a report every 2 years evaluating the efforts of

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agencies which significantly regulate small businesses, assist

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minority and other small business enterprises, and make

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recommendations that may be appropriate to assist the development

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and strengthening of minority and other small business

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enterprises.

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6. Consult with experts and authorities in the fields of

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small business investment, venture capital investment, and

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commercial banking and other comparable finance institutions

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involved in the financing of business, and with individuals who

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have regulatory, legal, economic, or financial expertise,

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including members of the academic community and individuals who

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generally represent the public interest.

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7. Seek the assistance and cooperation of all agencies and

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departments providing services to, or affecting, small businesses

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in order to ensure the coordination of state efforts.

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8. Receive and respond to complaints from small businesses

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concerning the actions of agencies and the operative effects of

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state laws and rules adversely affecting those businesses. The

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advocate shall establish an annual process for small businesses

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to nominate agency rules or programs for reform. The advocate

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shall publish those nominations online and update the status of

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agency action on the proposed reforms twice yearly.

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9. Counsel small businesses on how to resolve questions and

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problems concerning the relationship of small business to state

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government.

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10. Maintain, publicize, and distribute an annual list of

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any persons serving as small business ombudsmen throughout state

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government.

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11. Coordinate a statewide conference on small businesses

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with public and private organizations and entities impacting

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small business in the state.

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12. Coordinate annual public meetings to share best

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practices for small business disaster preparedness. The meetings

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shall be held in consultation with regional and statewide small

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business organizations and shall take place in different

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locations throughout the state.

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(4) REPORTS AND DOCUMENTS FURNISHED TO SMALL BUSINESS

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ADVOCATE; ANNUAL REPORTS.--

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(a) Each agency of the state shall furnish to the advocate

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the reports, documents, and information that are public records

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and that the director deems necessary to carry out his or her

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functions under this chapter.

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(b) The advocate shall prepare and submit a written annual

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report to the Governor, the President of the Senate, and the

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Speaker of the House of Representatives which describes the

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activities and recommendations of the office.

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Section 8. This act shall take effect July 1, 2008.