Florida Senate - 2014                                    SB 1626
       
       
        
       By Senator Lee
       
       
       
       
       
       24-01138-14                                           20141626__
    1                        A bill to be entitled                      
    2         An act relating to administrative procedures; amending
    3         s. 57.111, F.S.; providing conditions under which a
    4         proceeding is not substantially justified for purposes
    5         of an award under the Florida Equal Access to Justice
    6         Act; amending s. 120.54, F.S.; requiring agencies to
    7         set a time for workshops if initiating rulemaking at
    8         the request of the petitioner; amending s. 120.55,
    9         F.S.; providing for publication of notices of rule
   10         development and of rules filed for adoption; providing
   11         additional notice of rule development, proposals, and
   12         adoptions; amending s. 120.56, F.S.; clarifying that
   13         petitions for administrative determinations apply to
   14         rules or proposed rules; providing that a petitioner
   15         challenging a rule, proposed rule, or agency statement
   16         has the burden of going forward after which the agency
   17         has the burden of proving that the rule, proposed
   18         rule, or agency statement is not invalid; prohibiting
   19         an administrative law judge from bifurcating certain
   20         petitions challenging agency action into separate
   21         cases; amending s. 120.565, F.S.; authorizing certain
   22         parties to provide to an agency their understanding of
   23         how certain rules apply to specific facts; requiring
   24         the agency to provide a declaratory statement within
   25         60 days; authorizing the administrative law judge to
   26         award attorney fees under certain circumstances;
   27         amending s. 120.569, F.S.; granting agencies
   28         additional time to render final orders in certain
   29         circumstances; amending s. 120.57, F.S.; conforming
   30         proceedings that oppose agency action based on an
   31         invalid or unadopted rule to proceedings used for
   32         challenging rules; requiring the agency to issue a
   33         notice stating whether the agency will rely on the
   34         challenged rule or alleged unadopted rule; authorizing
   35         the administrative law judge to make certain findings
   36         on the validity of certain alleged unadopted rules;
   37         authorizing the administrative law judge to issue a
   38         separate final order on certain rules and alleged
   39         unadopted rules; prohibiting agencies from rejecting
   40         specific conclusions of law; providing for stay of
   41         proceedings not involving disputed issues of fact upon
   42         timely filing of a rule challenge; providing that the
   43         final order terminates the stay; amending s. 120.573,
   44         F.S.; authorizing a party to request mediation of a
   45         rule challenge and declaratory statement proceedings;
   46         amending s. 120.595, F.S.; providing for an award of
   47         attorney fees and costs in specified challenges to
   48         agency action; providing criteria that, if met,
   49         establish that a nonprevailing party participated in
   50         an administrative proceeding for an improper purpose;
   51         revising provisions providing for the award of
   52         attorney fees and costs by the appellate court or
   53         administrative law judge against the agency or party
   54         in specified administrative challenges; providing
   55         exceptions for the award of attorney fees and costs;
   56         capping the amount of attorney fees that may be
   57         awarded; requiring notice of a proposed challenge by
   58         the petitioner as a condition precedent to filing a
   59         challenge and being eligible for the reimbursement of
   60         attorney fees and costs; authorizing the recovery of
   61         attorney fees and costs incurred in litigating
   62         entitlement to attorney fees and costs in
   63         administrative actions; providing such attorney fees
   64         and costs are not limited in amount; amending s.
   65         120.68, F.S.; requiring specified agencies in appeals
   66         of certain final orders to provide a copy of the
   67         notice of appeal to the Administrative Procedures
   68         Committee; amending s. 120.695, F.S.; removing
   69         obsolete provisions with respect to required agency
   70         review and designation of minor violations; requiring
   71         agency review and certification of minor violation
   72         rules by a specified date; requiring the reporting of
   73         agency failure to complete the review and file
   74         certification of such rules; requiring minor violation
   75         certification for all rules adopted after a specified
   76         date; requiring public notice; providing for
   77         nonapplicability; conforming provisions to changes
   78         made by the act; providing an effective date.
   79          
   80  Be It Enacted by the Legislature of the State of Florida:
   81  
   82         Section 1. Paragraph (e) of subsection (3) of section
   83  57.111, Florida Statutes, is amended to read:
   84         57.111 Civil actions and administrative proceedings
   85  initiated by state agencies; attorney attorneys’ fees and
   86  costs.—
   87         (3) As used in this section:
   88         (e) A proceeding is “substantially justified” if it had a
   89  reasonable basis in law and fact at the time it was initiated by
   90  a state agency. A proceeding is not substantially justified if
   91  the specified law, rule, or order at issue in the current agency
   92  action is the subject upon which the substantially affected
   93  party previously petitioned the agency for a declaratory
   94  statement under s. 120.565; the current agency action involves
   95  identical or substantially similar facts and circumstances as
   96  those raised in the previous petition and:
   97         1. The agency action contradicts the declaratory statement
   98  issued by the agency upon the previous petition; or
   99         2. The agency denied the previous petition under s. 120.565
  100  before initiating the current agency action against the
  101  substantially affected party.
  102         Section 2. Paragraph (c) of subsection (7) of section
  103  120.54, Florida Statutes, is amended to read:
  104         120.54 Rulemaking.—
  105         (7) PETITION TO INITIATE RULEMAKING.—
  106         (c) Within 30 days after following the public hearing
  107  provided for in by paragraph (b), if the petition’s requested
  108  action requires rulemaking and the agency initiates rulemaking,
  109  the agency shall establish a time certain for the rulemaking
  110  workshops and shall discontinue reliance upon the agency
  111  statement or unadopted rule until it adopts appropriate rules
  112  pursuant to subsection (3). If the agency does not initiate
  113  rulemaking or otherwise comply with the requested action, the
  114  agency shall publish in the Florida Administrative Register a
  115  statement of its reasons for not initiating rulemaking or
  116  otherwise complying with the requested action, and of any
  117  changes it will make in the scope or application of the
  118  unadopted rule. The agency shall file the statement with the
  119  committee. The committee shall forward a copy of the statement
  120  to the substantive committee with primary oversight jurisdiction
  121  of the agency in each house of the Legislature. The committee or
  122  the committee with primary oversight jurisdiction may hold a
  123  hearing directed to the statement of the agency. The committee
  124  holding the hearing may recommend to the Legislature the
  125  introduction of legislation making the rule a statutory standard
  126  or limiting or otherwise modifying the authority of the agency.
  127         Section 3. Section 120.55, Florida Statutes, is amended to
  128  read:
  129         120.55 Publication.—
  130         (1) The Department of State shall:
  131         (a)1. Through a continuous revision and publication system,
  132  compile and publish electronically, on an Internet website
  133  managed by the department, the “Florida Administrative Code.”
  134  The Florida Administrative Code shall contain all rules adopted
  135  by each agency, citing the grant of rulemaking authority and the
  136  specific law implemented pursuant to which each rule was
  137  adopted, all history notes as authorized in s. 120.545(7),
  138  complete indexes to all rules contained in the code, and any
  139  other material required or authorized by law or deemed useful by
  140  the department. The electronic code shall display each rule
  141  chapter currently in effect in browse mode and allow full text
  142  search of the code and each rule chapter. The department may
  143  contract with a publishing firm for a printed publication;
  144  however, the department shall retain responsibility for the code
  145  as provided in this section. The electronic publication shall be
  146  the official compilation of the administrative rules of this
  147  state. The Department of State shall retain the copyright over
  148  the Florida Administrative Code.
  149         2. Rules general in form but applicable to only one school
  150  district, community college district, or county, or a part
  151  thereof, or state university rules relating to internal
  152  personnel or business and finance shall not be published in the
  153  Florida Administrative Code. Exclusion from publication in the
  154  Florida Administrative Code shall not affect the validity or
  155  effectiveness of such rules.
  156         3. At the beginning of the section of the code dealing with
  157  an agency that files copies of its rules with the department,
  158  the department shall publish the address and telephone number of
  159  the executive offices of each agency, the manner by which the
  160  agency indexes its rules, a listing of all rules of that agency
  161  excluded from publication in the code, and a statement as to
  162  where those rules may be inspected.
  163         4. Forms shall not be published in the Florida
  164  Administrative Code; but any form which an agency uses in its
  165  dealings with the public, along with any accompanying
  166  instructions, shall be filed with the committee before it is
  167  used. Any form or instruction which meets the definition of
  168  “rule” provided in s. 120.52 shall be incorporated by reference
  169  into the appropriate rule. The reference shall specifically
  170  state that the form is being incorporated by reference and shall
  171  include the number, title, and effective date of the form and an
  172  explanation of how the form may be obtained. Each form created
  173  by an agency which is incorporated by reference in a rule notice
  174  of which is given under s. 120.54(3)(a) after December 31, 2007,
  175  must clearly display the number, title, and effective date of
  176  the form and the number of the rule in which the form is
  177  incorporated.
  178         5. The department shall allow adopted rules and material
  179  incorporated by reference to be filed in electronic form as
  180  prescribed by department rule. When a rule is filed for adoption
  181  with incorporated material in electronic form, the department’s
  182  publication of the Florida Administrative Code on its Internet
  183  website must contain a hyperlink from the incorporating
  184  reference in the rule directly to that material. The department
  185  may not allow hyperlinks from rules in the Florida
  186  Administrative Code to any material other than that filed with
  187  and maintained by the department, but may allow hyperlinks to
  188  incorporated material maintained by the department from the
  189  adopting agency’s website or other sites.
  190         (b) Electronically publish on an Internet website managed
  191  by the department a continuous revision and publication entitled
  192  the “Florida Administrative Register,” which shall serve as the
  193  official publication and must contain:
  194         1. All notices required by s. 120.54(2) and (3)(a) s.
  195  120.54(3)(a), showing the text of all rules proposed for
  196  consideration.
  197         2. All notices of public meetings, hearings, and workshops
  198  conducted in accordance with s. 120.525, including a statement
  199  of the manner in which a copy of the agenda may be obtained.
  200         3. A notice of each request for authorization to amend or
  201  repeal an existing uniform rule or for the adoption of new
  202  uniform rules.
  203         4. Notice of petitions for declaratory statements or
  204  administrative determinations.
  205         5. A summary of each objection to any rule filed by the
  206  Administrative Procedures Committee.
  207         6. A listing of rules filed for adoption in the previous 7
  208  days.
  209         7. A listing of all rules filed for adoption pending
  210  legislative ratification under s. 120.541(3) until notice of
  211  ratification or withdrawal of such rule is received.
  212         8.6. Any other material required or authorized by law or
  213  deemed useful by the department.
  214  
  215  The department may contract with a publishing firm for a printed
  216  publication of the Florida Administrative Register and make
  217  copies available on an annual subscription basis.
  218         (c) Prescribe by rule the style and form required for
  219  rules, notices, and other materials submitted for filing.
  220         (d) Charge each agency using the Florida Administrative
  221  Register a space rate to cover the costs related to the Florida
  222  Administrative Register and the Florida Administrative Code.
  223         (e) Maintain a permanent record of all notices published in
  224  the Florida Administrative Register.
  225         (2) The Florida Administrative Register Internet website
  226  must allow users to:
  227         (a) Search for notices by type, publication date, rule
  228  number, word, subject, and agency.
  229         (b) Search a database that makes available all notices
  230  published on the website for a period of at least 5 years.
  231         (c) Subscribe to an automated e-mail notification of
  232  selected notices to be sent out before or concurrently with
  233  publication of the electronic Florida Administrative Register.
  234  Such notification must include in the text of the e-mail a
  235  summary of the content of each notice.
  236         (d) View agency forms and other materials submitted to the
  237  department in electronic form and incorporated by reference in
  238  proposed rules.
  239         (e) Comment on proposed rules.
  240         (3) Publication of material required by paragraph (1)(b) on
  241  the Florida Administrative Register Internet website does not
  242  preclude publication of such material on an agency’s website or
  243  by other means.
  244         (4) Each agency shall provide copies of its rules upon
  245  request, with citations to the grant of rulemaking authority and
  246  the specific law implemented for each rule.
  247         (5) Each agency that provides an e-mail alert service to
  248  inform licensees or other registered recipients of important
  249  notices shall use such service to notify recipients of each
  250  notice required under s. 120.54(2) and (3)(a), including a
  251  notice of rule development, notice of proposed rules, and notice
  252  of filing rules for adoption, and provide Internet links to the
  253  appropriate rule page on the Department of State’s website or
  254  Internet links to an agency website that contains the proposed
  255  rule or final rule.
  256         (6)(5) Any publication of a proposed rule promulgated by an
  257  agency, whether published in the Florida Administrative Register
  258  or elsewhere, shall include, along with the rule, the name of
  259  the person or persons originating such rule, the name of the
  260  agency head who approved the rule, and the date upon which the
  261  rule was approved.
  262         (7)(6) Access to the Florida Administrative Register
  263  Internet website and its contents, including the e-mail
  264  notification service, shall be free for the public.
  265         (8)(7)(a) All fees and moneys collected by the Department
  266  of State under this chapter shall be deposited in the Records
  267  Management Trust Fund for the purpose of paying for costs
  268  incurred by the department in carrying out this chapter.
  269         (b) The unencumbered balance in the Records Management
  270  Trust Fund for fees collected pursuant to this chapter may not
  271  exceed $300,000 at the beginning of each fiscal year, and any
  272  excess shall be transferred to the General Revenue Fund.
  273         Section 4. Subsections (1), (3), and (4) of section 120.56,
  274  Florida Statutes, are amended to read:
  275         120.56 Challenges to rules.—
  276         (1) GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A
  277  RULE OR A PROPOSED RULE.—
  278         (a) Any person substantially affected by a rule or a
  279  proposed rule may seek an administrative determination of the
  280  invalidity of the rule on the ground that the rule is an invalid
  281  exercise of delegated legislative authority.
  282         (b) The petition seeking an administrative determination of
  283  the rule or proposed rule must state the facts and with
  284  particularity the provisions alleged to be invalid with
  285  sufficient explanation of the facts or grounds for the alleged
  286  invalidity and facts sufficient to show that the petitioner
  287  person challenging the a rule is substantially affected by it,
  288  or that the person challenging a proposed rule would be
  289  substantially affected by the proposed rule it.
  290         (c) The petition shall be filed by electronic means with
  291  the division which shall, immediately upon filing, forward by
  292  electronic means copies to the agency whose rule is challenged,
  293  the Department of State, and the committee. Within 10 days after
  294  receiving the petition, the division director shall, if the
  295  petition complies with the requirements of paragraph (b), assign
  296  an administrative law judge who shall conduct a hearing within
  297  30 days thereafter, unless the petition is withdrawn or a
  298  continuance is granted by agreement of the parties or for good
  299  cause shown. Evidence of good cause includes, but is not limited
  300  to, written notice of an agency’s decision to modify or withdraw
  301  the proposed rule or a written notice from the chair of the
  302  committee stating that the committee will consider an objection
  303  to the rule at its next scheduled meeting. The failure of an
  304  agency to follow the applicable rulemaking procedures or
  305  requirements set forth in this chapter shall be presumed to be
  306  material; however, the agency may rebut this presumption by
  307  showing that the substantial interests of the petitioner and the
  308  fairness of the proceedings have not been impaired.
  309         (d) Within 30 days after the hearing, the administrative
  310  law judge shall render a decision and state the reasons therefor
  311  in writing. The division shall forthwith transmit by electronic
  312  means copies of the administrative law judge’s decision to the
  313  agency, the Department of State, and the committee.
  314         (e) Hearings held under this section shall be de novo in
  315  nature. The standard of proof shall be the preponderance of the
  316  evidence. The petitioner has the burden of going forward with
  317  the evidence. The agency has the burden of proving by a
  318  preponderance of the evidence that the rule, proposed rule, or
  319  agency statement is not an invalid exercise of delegated
  320  legislative authority. Hearings shall be conducted in the same
  321  manner as provided by ss. 120.569 and 120.57, except that the
  322  administrative law judge’s order shall be final agency action.
  323  The petitioner and the agency whose rule is challenged shall be
  324  adverse parties. Other substantially affected persons may join
  325  the proceedings as intervenors on appropriate terms which shall
  326  not unduly delay the proceedings. Failure to proceed under this
  327  section shall not constitute failure to exhaust administrative
  328  remedies.
  329         (3) CHALLENGING EXISTING RULES; SPECIAL PROVISIONS.—
  330         (a) A substantially affected person may seek an
  331  administrative determination of the invalidity of an existing
  332  rule at any time during the existence of the rule. The
  333  petitioner has the a burden of going forward with the evidence
  334  as set forth in paragraph (1)(b), and the agency has the burden
  335  of proving by a preponderance of the evidence that the existing
  336  rule is not an invalid exercise of delegated legislative
  337  authority as to the objections raised.
  338         (b) The administrative law judge may declare all or part of
  339  a rule invalid. The rule or part thereof declared invalid shall
  340  become void when the time for filing an appeal expires. The
  341  agency whose rule has been declared invalid in whole or part
  342  shall give notice of the decision in the Florida Administrative
  343  Register in the first available issue after the rule has become
  344  void.
  345         (4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES; SPECIAL
  346  PROVISIONS.—
  347         (a) Any person substantially affected by an agency
  348  statement may seek an administrative determination that the
  349  statement violates s. 120.54(1)(a). The petition shall include
  350  the text of the statement or a description of the statement and
  351  shall state with particularity facts sufficient to show that the
  352  statement constitutes a rule under s. 120.52 and that the agency
  353  has not adopted the statement by the rulemaking procedure
  354  provided by s. 120.54.
  355         (b) The administrative law judge may extend the hearing
  356  date beyond 30 days after assignment of the case for good cause.
  357  Upon notification to the administrative law judge provided
  358  before the final hearing that the agency has published a notice
  359  of rulemaking under s. 120.54(3), such notice shall
  360  automatically operate as a stay of proceedings pending adoption
  361  of the statement as a rule. The administrative law judge may
  362  vacate the stay for good cause shown. A stay of proceedings
  363  pending rulemaking shall remain in effect so long as the agency
  364  is proceeding expeditiously and in good faith to adopt the
  365  statement as a rule. If a hearing is held and the petitioner
  366  proves the allegations of the petition, the agency shall have
  367  the burden of proving that rulemaking is not feasible or not
  368  practicable under s. 120.54(1)(a).
  369         (c) The administrative law judge may determine whether all
  370  or part of a statement violates s. 120.54(1)(a). The decision of
  371  the administrative law judge shall constitute a final order. The
  372  division shall transmit a copy of the final order to the
  373  Department of State and the committee. The Department of State
  374  shall publish notice of the final order in the first available
  375  issue of the Florida Administrative Register.
  376         (d) If an administrative law judge enters a final order
  377  that all or part of an agency statement violates s.
  378  120.54(1)(a), the agency must immediately discontinue all
  379  reliance upon the statement or any substantially similar
  380  statement as a basis for agency action.
  381         (e) If proposed rules addressing the challenged statement
  382  are determined to be an invalid exercise of delegated
  383  legislative authority as defined in s. 120.52(8)(b)-(f), the
  384  agency must immediately discontinue reliance upon on the
  385  statement and any substantially similar statement until rules
  386  addressing the subject are properly adopted, and the
  387  administrative law judge shall enter a final order to that
  388  effect.
  389         (f) If a petitioner files a petition challenging agency
  390  action and a part of that petition alleges the presence of or
  391  reliance upon agency statements or unadopted rules, the
  392  administrative law judge may not bifurcate the petition into
  393  separate cases, but shall consider the challenge to the proposed
  394  agency action and the allegation that such agency action was
  395  based upon the presence of or reliance upon agency statements or
  396  unadopted rules.
  397         (g)(f) All proceedings to determine a violation of s.
  398  120.54(1)(a) shall be brought pursuant to this subsection. A
  399  proceeding pursuant to this subsection may be consolidated with
  400  a proceeding under subsection (3) or under any other section of
  401  this chapter. This paragraph does not prevent a party whose
  402  substantial interests have been determined by an agency action
  403  from bringing a proceeding pursuant to s. 120.57(1)(e).
  404         Section 5. Subsection (2) of section 120.565, Florida
  405  Statutes, is amended, and subsections (4) and (5) are added to
  406  that section, to read:
  407         120.565 Declaratory statement by agencies.—
  408         (2) The petition seeking a declaratory statement shall
  409  state with particularity the petitioner’s set of circumstances
  410  and shall specify the statutory provision, rule, or order that
  411  the petitioner believes may apply to the set of circumstances.
  412         (4) The petitioner or substantially affected person may
  413  submit to the agency clerk a statement that describes or asserts
  414  the petitioner’s understanding of how the agency rule, policy,
  415  or procedure applies to a set of facts and circumstances. The
  416  agency has 60 days to review the petitioner’s statement and to
  417  either accept the statement or offer changes and other
  418  clarifications so as to establish the plain meaning of how the
  419  agency rule, policy, or procedure applies to the set of facts
  420  and circumstances described in the petitioner’s statement.
  421         (5) If the agency denies a request for a declaratory
  422  statement and the petitioner appeals the denial, and if the
  423  administrative law judge finds that the agency improperly denied
  424  the request, the administrative law judge shall award to the
  425  petitioner reasonable attorney fees.
  426         Section 6. Paragraph (l) of subsection (2) of section
  427  120.569, Florida Statutes, is amended to read:
  428         120.569 Decisions which affect substantial interests.—
  429         (2)
  430         (l) Unless the time period is waived or extended with the
  431  consent of all parties, the final order in a proceeding which
  432  affects substantial interests must be in writing and include
  433  findings of fact, if any, and conclusions of law separately
  434  stated, and it must be rendered within 90 days:
  435         1. After the hearing is concluded, if conducted by the
  436  agency;
  437         2. After a recommended order is submitted to the agency and
  438  mailed to all parties, if the hearing is conducted by an
  439  administrative law judge, except that, at the election of the
  440  agency, the time for rendering the final order may be extended
  441  up to 10 days after entry of a mandate on any appeal from a
  442  final order under s. 120.57(1)(e)4.; or
  443         3. After the agency has received the written and oral
  444  material it has authorized to be submitted, if there has been no
  445  hearing.
  446         Section 7. Paragraphs (e) and (h) of subsection (1) and
  447  subsection (2) of section 120.57, Florida Statutes, are amended
  448  to read:
  449         120.57 Additional procedures for particular cases.—
  450         (1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING
  451  DISPUTED ISSUES OF MATERIAL FACT.—
  452         (e)1. An agency or an administrative law judge may not base
  453  agency action that determines the substantial interests of a
  454  party on an unadopted rule or a rule that is an invalid exercise
  455  of delegated legislative authority. The administrative law judge
  456  shall determine whether an agency statement constitutes an
  457  unadopted rule. This subparagraph does not preclude application
  458  of valid adopted rules and applicable provisions of law to the
  459  facts.
  460         2. In a matter initiated as a result of agency action
  461  proposing to determine the substantial interests of a party, the
  462  party’s timely petition for hearing may challenge the proposed
  463  agency action based on a rule that is an invalid exercise of
  464  delegated legislative authority or based on an alleged unadopted
  465  rule. For challenges brought under this subparagraph:
  466         a. The challenge shall be pled as a defense using the
  467  procedures set forth in s. 120.56(1)(b).
  468         b. Section 120.56(3)(a) applies to a challenge alleging
  469  that a rule is an invalid exercise of delegated legislative
  470  authority.
  471         c. Section 120.56(4)(c) applies to a challenge alleging an
  472  unadopted rule.
  473         d. The agency has 15 days from the date of receipt of a
  474  challenge under this subparagraph to serve the challenging party
  475  with a notice whether the agency will continue to rely upon the
  476  rule or the alleged unadopted rule as a basis for the action
  477  determining the party’s substantive interests. Failure to timely
  478  serve the notice constitutes a binding stipulation that the
  479  agency may not rely upon the rule or unadopted rule further in
  480  the proceeding. The agency shall include a copy of this notice
  481  with the referral of the matter to the division under s.
  482  120.569(2)(a).
  483         e. This subparagraph does not preclude the consolidation of
  484  any proceeding under s. 120.56 with any proceeding under this
  485  paragraph.
  486         3.2. Notwithstanding subparagraph 1., if an agency
  487  demonstrates that the statute being implemented directs it to
  488  adopt rules, that the agency has not had time to adopt those
  489  rules because the requirement was so recently enacted, and that
  490  the agency has initiated rulemaking and is proceeding
  491  expeditiously and in good faith to adopt the required rules,
  492  then the agency’s action may be based upon those unadopted rules
  493  if, subject to de novo review by the administrative law judge
  494  determines that rulemaking is neither feasible nor practicable
  495  and the unadopted rules would not constitute an invalid exercise
  496  of delegated legislative authority if adopted as rules. An
  497  unadopted rule The agency action shall not be presumed valid or
  498  invalid. The agency must demonstrate that the unadopted rule:
  499         a. Is within the powers, functions, and duties delegated by
  500  the Legislature or, if the agency is operating pursuant to
  501  authority vested in the agency by derived from the State
  502  Constitution, is within that authority;
  503         b. Does not enlarge, modify, or contravene the specific
  504  provisions of law implemented;
  505         c. Is not vague, establishes adequate standards for agency
  506  decisions, or does not vest unbridled discretion in the agency;
  507         d. Is not arbitrary or capricious. A rule is arbitrary if
  508  it is not supported by logic or the necessary facts; a rule is
  509  capricious if it is adopted without thought or reason or is
  510  irrational;
  511         e. Is not being applied to the substantially affected party
  512  without due notice; and
  513         f. Does not impose excessive regulatory costs on the
  514  regulated person, county, or city.
  515         4. If the agency timely serves notice of continued reliance
  516  upon a challenged rule or an alleged unadopted rule under sub
  517  subparagraph 2.d., the administrative law judge shall determine
  518  whether the challenged rule is an invalid exercise of delegated
  519  legislative authority or whether the challenged agency statement
  520  constitutes an unadopted rule and if that unadopted rule meets
  521  the requirements of subparagraph 3. The determination shall be
  522  rendered as a separate final order no earlier than the date on
  523  which the administrative law judge serves the recommended order.
  524         5.3. The recommended and final orders in any proceeding
  525  shall be governed by the provisions of paragraphs (k) and (l),
  526  except that the administrative law judge’s determination
  527  regarding an unadopted rule under subparagraph 4. 1. or
  528  subparagraph 2. shall be included as a conclusion of law that
  529  the agency may not reject not be rejected by the agency unless
  530  the agency first determines from a review of the complete
  531  record, and states with particularity in the order, that such
  532  determination is clearly erroneous or does not comply with
  533  essential requirements of law. In any proceeding for review
  534  under s. 120.68, if the court finds that the agency’s rejection
  535  of the determination regarding the unadopted rule does not
  536  comport with the provisions of this subparagraph, the agency
  537  action shall be set aside and the court shall award to the
  538  prevailing party the reasonable costs and a reasonable
  539  attorney’s fee for the initial proceeding and the proceeding for
  540  review.
  541         (h) Any party to a proceeding in which an administrative
  542  law judge of the Division of Administrative Hearings has final
  543  order authority may move for a summary final order when there is
  544  no genuine issue as to any material fact. A summary final order
  545  shall be rendered if the administrative law judge determines
  546  from the pleadings, depositions, answers to interrogatories, and
  547  admissions on file, together with affidavits, if any, that no
  548  genuine issue as to any material fact exists and that the moving
  549  party is entitled as a matter of law to the entry of a final
  550  order. A summary final order shall consist of findings of fact,
  551  if any, conclusions of law, a disposition or penalty, if
  552  applicable, and any other information required by law to be
  553  contained in the final order. This paragraph does not apply to
  554  proceedings authorized by paragraph (e).
  555         (2) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS NOT
  556  INVOLVING DISPUTED ISSUES OF MATERIAL FACT.—In any case to which
  557  subsection (1) does not apply:
  558         (a) The agency shall:
  559         1. Give reasonable notice to affected persons of the action
  560  of the agency, whether proposed or already taken, or of its
  561  decision to refuse action, together with a summary of the
  562  factual, legal, and policy grounds therefor.
  563         2. Give parties or their counsel the option, at a
  564  convenient time and place, to present to the agency or hearing
  565  officer written or oral evidence in opposition to the action of
  566  the agency or to its refusal to act, or a written statement
  567  challenging the grounds upon which the agency has chosen to
  568  justify its action or inaction.
  569         3. If the objections of the parties are overruled, provide
  570  a written explanation within 7 days.
  571         (b) An agency may not base agency action that determines
  572  the substantial interests of a party on an unadopted rule or a
  573  rule that is an invalid exercise of delegated legislative
  574  authority. No later than the date provided by the agency under
  575  subparagraph (a)2. for presenting material in opposition to the
  576  agency’s proposed action or refusal to act, the party may file a
  577  petition under s. 120.56 challenging the rule, portion of rule,
  578  or unadopted rule upon which the agency bases its proposed
  579  action or refusal to act. The filing of a challenge under s.
  580  120.56 pursuant to this paragraph shall stay all proceedings on
  581  the agency’s proposed action or refusal to act until entry of
  582  the final order by the administrative law judge, which shall
  583  provide additional notice that the stay of the pending agency
  584  action is terminated and any further stay pending appeal of the
  585  final order must be sought from the appellate court.
  586         (c)(b) The record shall only consist of:
  587         1. The notice and summary of grounds.
  588         2. Evidence received.
  589         3. All written statements submitted.
  590         4. Any decision overruling objections.
  591         5. All matters placed on the record after an ex parte
  592  communication.
  593         6. The official transcript.
  594         7. Any decision, opinion, order, or report by the presiding
  595  officer.
  596         Section 8. Section 120.573, Florida Statutes, is amended to
  597  read:
  598         120.573 Mediation of disputes.—
  599         (1) Each announcement of an agency action that affects
  600  substantial interests shall advise whether mediation of the
  601  administrative dispute for the type of agency action announced
  602  is available and that choosing mediation does not affect the
  603  right to an administrative hearing. If the agency and all
  604  parties to the administrative action agree to mediation, in
  605  writing, within 10 days after the time period stated in the
  606  announcement for election of an administrative remedy under ss.
  607  120.569 and 120.57, the time limitations imposed by ss. 120.569
  608  and 120.57 shall be tolled to allow the agency and parties to
  609  mediate the administrative dispute. The mediation shall be
  610  concluded within 60 days after of such agreement unless
  611  otherwise agreed by the parties. The mediation agreement shall
  612  include provisions for mediator selection, the allocation of
  613  costs and fees associated with mediation, and the mediating
  614  parties’ understanding regarding the confidentiality of
  615  discussions and documents introduced during mediation. If
  616  mediation results in settlement of the administrative dispute,
  617  the agency shall enter a final order incorporating the agreement
  618  of the parties. If mediation terminates without settlement of
  619  the dispute, the agency shall notify the parties in writing that
  620  the administrative hearing processes under ss. 120.569 and
  621  120.57 are resumed.
  622         (2) Any party to a proceeding conducted pursuant to a
  623  petition seeking an administrative determination of the
  624  invalidity of an existing rule, proposed rule, or unadopted
  625  agency statement under s. 120.56 or a proceeding conducted
  626  pursuant to a petition seeking a declaratory statement under s.
  627  120.565 may request mediation of the dispute under this section.
  628         Section 9. Section 120.595, Florida Statutes, is amended to
  629  read:
  630         120.595 Attorney Attorney’s fees.—
  631         (1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
  632  120.57(1).—
  633         (a) The provisions of this subsection are supplemental to,
  634  and do not abrogate, other provisions allowing the award of fees
  635  or costs in administrative proceedings.
  636         (b) The final order in a proceeding pursuant to s.
  637  120.57(1) shall award reasonable costs and a reasonable attorney
  638  fees attorney’s fee to the prevailing party if the
  639  administrative law judge determines only where the nonprevailing
  640  adverse party has been determined by the administrative law
  641  judge to have participated in the proceeding for an improper
  642  purpose.
  643         1.(c)Other than as provided in paragraph (d), in
  644  proceedings pursuant to s. 120.57(1), and upon motion, the
  645  administrative law judge shall determine whether any party
  646  participated in the proceeding for an improper purpose as
  647  defined by this subsection. In making such determination, the
  648  administrative law judge shall consider whether The
  649  nonprevailing adverse party shall be presumed to have
  650  participated in the pending proceeding for an improper purpose
  651  if:
  652         a. Such party was an adverse party has participated in
  653  three two or more other such proceedings involving the same
  654  prevailing party and the same subject; project as an adverse
  655  party and in
  656         b. In those which such two or more proceedings the
  657  nonprevailing adverse party did not establish either the factual
  658  or legal merits of its position;, and shall consider
  659         c.Whether The factual or legal position asserted in the
  660  pending instant proceeding would have been cognizable in the
  661  previous proceedings; and. In such event, it shall be rebuttably
  662  presumed that the nonprevailing adverse party participated in
  663  the pending proceeding for an improper purpose
  664         d. The nonprevailing adverse party has not rebutted the
  665  presumption of participating in the pending proceeding for an
  666  improper purpose.
  667         2.(d)If In any proceeding in which the administrative law
  668  judge determines that a party is determined to have participated
  669  in the proceeding for an improper purpose, the recommended order
  670  shall include such findings of fact and conclusions of law to
  671  establish the conclusion so designate and shall determine the
  672  award of costs and attorney attorney’s fees.
  673         (c)(e) For the purpose of this subsection:
  674         1. “Improper purpose” means participation in a proceeding
  675  pursuant to s. 120.57(1) primarily to harass or to cause
  676  unnecessary delay or for frivolous purpose or to needlessly
  677  increase the cost of litigation, licensing, or securing the
  678  approval of an activity.
  679         2. “Costs” has the same meaning as the costs allowed in
  680  civil actions in this state as provided in chapter 57.
  681         3. “Nonprevailing adverse party” means a party that has
  682  failed to have substantially changed the outcome of the proposed
  683  or final agency action which is the subject of a proceeding. In
  684  the event that a proceeding results in any substantial
  685  modification or condition intended to resolve the matters raised
  686  in a party’s petition, it shall be determined that the party
  687  having raised the issue addressed is not a nonprevailing adverse
  688  party. The recommended order shall state whether the change is
  689  substantial for purposes of this subsection. In no event shall
  690  the term “nonprevailing party” or “prevailing party” be deemed
  691  to include any party that has intervened in a previously
  692  existing proceeding to support the position of an agency.
  693         (d) For challenges brought under s. 120.57(1)(e), when the
  694  agency relies on a challenged rule or an alleged unadopted rule
  695  pursuant to s. 120.57(1)(e)2.d., if the appellate court or the
  696  administrative law judge declares the rule or portion of the
  697  rule to be invalid or that the agency statement is an unadopted
  698  rule which does not meet the requirements of s. 120.57(1)(e)4.,
  699  a judgment or order shall be rendered against the agency for
  700  reasonable costs and reasonable attorney fees. An award of
  701  attorney fees as provided by this paragraph may not exceed
  702  $50,000.
  703         (2) CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO SECTION
  704  120.56(2).—If the appellate court or administrative law judge
  705  declares a proposed rule or portion of a proposed rule invalid
  706  pursuant to s. 120.56(2), a judgment or order shall be rendered
  707  against the agency for reasonable costs and reasonable attorney
  708  attorney’s fees, unless the agency demonstrates that its actions
  709  were substantially justified or special circumstances exist
  710  which would make the award unjust. An agency’s actions are
  711  “substantially justified” if there was a reasonable basis in law
  712  and fact at the time the actions were taken by the agency. If
  713  the agency prevails in the proceedings, the appellate court or
  714  administrative law judge shall award reasonable costs and
  715  reasonable attorney attorney’s fees against a party if the
  716  appellate court or administrative law judge determines that a
  717  party participated in the proceedings for an improper purpose as
  718  defined by paragraph (1)(c) (1)(e). An No award of attorney
  719  attorney’s fees as provided by this subsection may not shall
  720  exceed $50,000.
  721         (3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO SECTION
  722  120.56(3) AND (5).—If the appellate court or administrative law
  723  judge declares a rule or portion of a rule invalid pursuant to
  724  s. 120.56(3) or (5), a judgment or order shall be rendered
  725  against the agency for reasonable costs and reasonable attorney
  726  attorney’s fees, unless the agency demonstrates that its actions
  727  were substantially justified or special circumstances exist
  728  which would make the award unjust. An agency’s actions are
  729  “substantially justified” if there was a reasonable basis in law
  730  and fact at the time the actions were taken by the agency. If
  731  the agency prevails in the proceedings, the appellate court or
  732  administrative law judge shall award reasonable costs and
  733  reasonable attorney attorney’s fees against a party if the
  734  appellate court or administrative law judge determines that a
  735  party participated in the proceedings for an improper purpose as
  736  defined by paragraph (1)(c) (1)(e). An No award of attorney
  737  attorney’s fees as provided by this subsection may not shall
  738  exceed $50,000.
  739         (4) CHALLENGES TO UNADOPTED RULES AGENCY ACTION PURSUANT TO
  740  SECTION 120.56(4).—
  741         (a) If the appellate court or administrative law judge
  742  determines that all or part of an unadopted rule agency
  743  statement violates s. 120.54(1)(a), or that the agency must
  744  immediately discontinue reliance upon on the unadopted rule
  745  statement and any substantially similar statement pursuant to s.
  746  120.56(4)(e), a judgment or order shall be entered against the
  747  agency for reasonable costs and reasonable attorney attorney’s
  748  fees, unless the agency demonstrates that the statement is
  749  required by the Federal Government to implement or retain a
  750  delegated or approved program or to meet a condition to receipt
  751  of federal funds.
  752         (b) Upon notification to the administrative law judge
  753  provided before the final hearing that the agency has published
  754  a notice of rulemaking under s. 120.54(3)(a), such notice shall
  755  automatically operate as a stay of proceedings pending
  756  rulemaking. The administrative law judge may vacate the stay for
  757  good cause shown. A stay of proceedings under this paragraph
  758  remains in effect so long as the agency is proceeding
  759  expeditiously and in good faith to adopt the statement as a
  760  rule. The administrative law judge shall award reasonable costs
  761  and reasonable attorney attorney’s fees incurred accrued by the
  762  petitioner before prior to the date the notice was published,
  763  unless the agency proves to the administrative law judge that it
  764  did not know and should not have known that the statement was an
  765  unadopted rule. Attorneys’ fees and costs under this paragraph
  766  and paragraph (a) shall be awarded only upon a finding that the
  767  agency received notice that the statement may constitute an
  768  unadopted rule at least 30 days before a petition under s.
  769  120.56(4) was filed and that the agency failed to publish the
  770  required notice of rulemaking pursuant to s. 120.54(3) that
  771  addresses the statement within that 30-day period. Notice to the
  772  agency may be satisfied by its receipt of a copy of the s.
  773  120.56(4) petition, a notice or other paper containing
  774  substantially the same information, or a petition filed pursuant
  775  to s. 120.54(7). An award of attorney attorney’s fees as
  776  provided by this paragraph may not exceed $50,000.
  777         (c) Notwithstanding the provisions of chapter 284, an award
  778  shall be paid from the budget entity of the secretary, executive
  779  director, or equivalent administrative officer of the agency,
  780  and the agency is shall not be entitled to payment of an award
  781  or reimbursement for payment of an award under any provision of
  782  law.
  783         (d) If the agency prevails in the proceedings, the
  784  appellate court or administrative law judge shall award
  785  reasonable costs and attorney attorney’s fees against a party if
  786  the appellate court or administrative law judge determines that
  787  the party participated in the proceedings for an improper
  788  purpose as defined in paragraph (1)(c) (1)(e) or that the party
  789  or the party’s attorney knew or should have known that a claim
  790  was not supported by the material facts necessary to establish
  791  the claim or would not be supported by the application of then
  792  existing law to those material facts.
  793         (5) APPEALS.—When there is an appeal, the court in its
  794  discretion may award reasonable attorney attorney’s fees and
  795  reasonable costs to the prevailing party if the court finds that
  796  the appeal was frivolous, meritless, or an abuse of the
  797  appellate process, or that the agency action which precipitated
  798  the appeal was a gross abuse of the agency’s discretion. Upon
  799  review of agency action that precipitates an appeal, if the
  800  court finds that the agency improperly rejected or modified
  801  findings of fact in a recommended order, the court shall award
  802  reasonable attorney attorney’s fees and reasonable costs to a
  803  prevailing appellant for the administrative proceeding and the
  804  appellate proceeding.
  805         (6) NOTICE OF INVALIDITY.—A party failing to serve a notice
  806  of proposed challenge under this subsection is not entitled to
  807  an award of reasonable costs and reasonable attorney fees under
  808  this section.
  809         (a) Before filing a petition challenging the validity of a
  810  proposed rule under s. 120.56(2), an adopted rule under s.
  811  120.56(3), or an agency statement defined as an unadopted rule
  812  under s. 120.56(4), a substantially affected person shall serve
  813  the agency head with notice of the proposed challenge. The
  814  notice shall identify the proposed or adopted rule or the
  815  unadopted rule that the person proposes to challenge and a brief
  816  explanation of the basis for that challenge. The notice must be
  817  received by the agency head at least 5 days before the filing of
  818  a petition under s. 120.56(2), and at least 30 days before the
  819  filing of a petition under s. 120.56(3) or s. 120.56(4).
  820         (b) This subsection does not apply to defenses raised and
  821  challenges authorized by s. 120.57(1)(e) or s. 120.57(2)(b).
  822         (7) DETERMINATION OF RECOVERABLE FEES AND COSTS.—For
  823  purposes of this chapter, s. 57.105(5), and s. 57.111, in
  824  addition to an award of reasonable attorney fees and reasonable
  825  costs, the prevailing party shall also recover reasonable
  826  attorney fees and reasonable costs incurred in litigating
  827  entitlement to, and the determination or quantification of,
  828  reasonable attorney fees and reasonable costs for the underlying
  829  matter. Reasonable attorney fees and reasonable costs awarded
  830  for litigating entitlement to, and the determination or
  831  quantification of, reasonable attorney fees and reasonable costs
  832  for the underlying matter are not subject to the limitations on
  833  amounts provided in this chapter or s. 57.111.
  834         (8)(6) OTHER SECTIONS NOT AFFECTED.—Other provisions,
  835  including ss. 57.105 and 57.111, authorize the award of attorney
  836  attorney’s fees and costs in administrative proceedings. Nothing
  837  in this section shall affect the availability of attorney
  838  attorney’s fees and costs as provided in those sections.
  839         Section 10. Paragraph (a) of subsection (2) and subsection
  840  (9) of section 120.68, Florida Statutes, are amended to read:
  841         120.68 Judicial review.—
  842         (2)(a) Judicial review shall be sought in the appellate
  843  district where the agency maintains its headquarters or where a
  844  party resides or as otherwise provided by law. All proceedings
  845  shall be instituted by filing a notice of appeal or petition for
  846  review in accordance with the Florida Rules of Appellate
  847  Procedure within 30 days after the rendition of the order being
  848  appealed. If the appeal is of an order rendered in a proceeding
  849  initiated under s. 120.56, or a final order under s.
  850  120.57(1)(e)4., the agency whose rule is being challenged shall
  851  transmit a copy of the notice of appeal to the committee.
  852         (9) No petition challenging an agency rule as an invalid
  853  exercise of delegated legislative authority shall be instituted
  854  pursuant to this section, except to review an order entered
  855  pursuant to a proceeding under s. 120.56, under s.
  856  120.57(1)(e)5., or under s. 120.57(2)(b), or an agency’s
  857  findings of immediate danger, necessity, and procedural fairness
  858  prerequisite to the adoption of an emergency rule pursuant to s.
  859  120.54(4), unless the sole issue presented by the petition is
  860  the constitutionality of a rule and there are no disputed issues
  861  of fact.
  862         Section 11. Section 120.695, Florida Statutes, is amended
  863  to read:
  864         120.695 Notice of noncompliance; designation of minor
  865  violation rules.—
  866         (1) It is the policy of the state that the purpose of
  867  regulation is to protect the public by attaining compliance with
  868  the policies established by the Legislature. Fines and other
  869  penalties may be provided in order to assure compliance;
  870  however, the collection of fines and the imposition of penalties
  871  are intended to be secondary to the primary goal of attaining
  872  compliance with an agency’s rules. It is the intent of the
  873  Legislature that an agency charged with enforcing rules shall
  874  issue a notice of noncompliance as its first response to a minor
  875  violation of a rule in any instance in which it is reasonable to
  876  assume that the violator was unaware of the rule or unclear as
  877  to how to comply with it.
  878         (2)(a) Each agency shall issue a notice of noncompliance as
  879  a first response to a minor violation of a rule. A “notice of
  880  noncompliance” is a notification by the agency charged with
  881  enforcing the rule issued to the person or business subject to
  882  the rule. A notice of noncompliance may not be accompanied with
  883  a fine or other disciplinary penalty. It must identify the
  884  specific rule that is being violated, provide information on how
  885  to comply with the rule, and specify a reasonable time for the
  886  violator to comply with the rule. A rule is agency action that
  887  regulates a business, occupation, or profession, or regulates a
  888  person operating a business, occupation, or profession, and
  889  that, if not complied with, may result in a disciplinary
  890  penalty.
  891         (b) Each agency shall review all of its rules and designate
  892  those for which a violation would be a minor violation and for
  893  which a notice of noncompliance must be the first enforcement
  894  action taken against a person or business subject to regulation.
  895  A violation of a rule is a minor violation if it does not result
  896  in economic or physical harm to a person or adversely affect the
  897  public health, safety, or welfare or create a significant threat
  898  of such harm. If an agency under the direction of a cabinet
  899  officer mails to each licensee a notice of the designated rules
  900  at the time of licensure and at least annually thereafter, the
  901  provisions of paragraph (a) may be exercised at the discretion
  902  of the agency. Such notice shall include a subject-matter index
  903  of the rules and information on how the rules may be obtained.
  904         (c) The agency’s review and designation must be completed
  905  by December 1, 1995;
  906         1. No later than June 30, 2015, and after such date within
  907  3 months after any request of the rules ombudsman in the
  908  Executive Office of the Governor, each agency shall review under
  909  the direction of the Governor shall make a report to the
  910  Governor, and each agency under the joint direction of the
  911  Governor and Cabinet shall report to the Governor and Cabinet by
  912  January 1, 1996, on which of its rules and certify to the
  913  President of the Senate, the Speaker of the House of
  914  Representatives, the Administrative Procedures Committee, and
  915  the rules ombudsman those rules that have been designated as
  916  rules the violation of which would be a minor violation under
  917  paragraph (b), consistent with the legislative intent stated in
  918  subsection (1). For each agency failing to timely complete the
  919  review and file the certification as required by this section,
  920  the rules ombudsman shall promptly report such failure to the
  921  Governor, the President of the Senate, the Speaker of the House
  922  of Representatives, and the Administrative Procedures Committee.
  923         2. Beginning on July 1, 2015, each agency shall:
  924         a. Publish all rules that the agency has designated as
  925  rules the violation of which would be a minor violation, either
  926  as a complete list on the agency’s website or by incorporation
  927  of the designations in the agency’s disciplinary guidelines
  928  adopted as a rule.
  929         b. Ensure that all investigative and enforcement personnel
  930  are knowledgeable of the agency’s designations under this
  931  section.
  932         3. For each rule filed for adoption, the agency head shall
  933  certify whether any part of the rule is designated as a rule the
  934  violation of which would be a minor violation and shall update
  935  the listing required by sub-subparagraph 2.a.
  936         (d) The Governor or the Governor and Cabinet, as
  937  appropriate pursuant to paragraph (c), may evaluate the review
  938  and designation effects of each agency subject to the direction
  939  and supervision of such authority and may direct apply a
  940  different designation than that applied by such the agency.
  941         (e) Notwithstanding s. 120.52(1)(a), this section does not
  942  apply to:
  943         1. The Department of Corrections;
  944         2. Educational units;
  945         3. The regulation of law enforcement personnel; or
  946         4. The regulation of teachers.
  947         (f) Designation pursuant to this section is not subject to
  948  challenge under this chapter.
  949         Section 12. This act shall take effect July 1, 2014.