Florida Senate - 2016                                     SB 372
       By Senator Lee
       24-00433-16                                            2016372__
    1                        A bill to be entitled                      
    2         An act relating to administrative procedures; amending
    3         s. 120.54, F.S.; providing procedures for agencies to
    4         follow when initiating rulemaking after certain public
    5         hearings; limiting reliance upon an unadopted rule in
    6         certain circumstances; amending s. 120.55, F.S.;
    7         providing for publication of notices of rule
    8         development and of rules filed for adoption; providing
    9         for additional notice of rule development, proposals,
   10         and adoptions in the Florida Administrative Register;
   11         requiring certain agencies to provide additional e
   12         mail notifications concerning specified rulemaking and
   13         rule development activities; providing that failure to
   14         follow certain provisions does not constitute grounds
   15         to challenge validity of a rule; amending s. 120.56,
   16         F.S.; clarifying language; amending s. 120.57, F.S.;
   17         conforming proceedings that oppose agency action based
   18         on an invalid or unadopted rule to proceedings used
   19         for challenging rules; authorizing the administrative
   20         law judge to make certain findings on the validity of
   21         certain alleged unadopted rules; authorizing a
   22         petitioner to file certain collateral challenges
   23         regarding the validity of a rule; authorizing the
   24         administrative law judge to consolidate proceedings in
   25         such rule challenges; providing that agency action may
   26         not be based on an invalid or unadopted rule; amending
   27         s. 120.68, F.S.; specifying legal authority to file a
   28         petition challenging an agency rule as an invalid
   29         exercise of delegated legislative authority; amending
   30         s. 120.695, F.S.; removing obsolete provisions with
   31         respect to required agency review and designation of
   32         minor violations; requiring agency review and
   33         certification of minor violation rules by a specified
   34         date; requiring minor violation certification for all
   35         rules adopted after a specified date; requiring public
   36         notice; providing applicability; amending s. 120.595,
   37         F.S.; conforming a cross-reference; providing an
   38         effective date.
   40  Be It Enacted by the Legislature of the State of Florida:
   42         Section 1. Paragraph (c) of subsection (7) of section
   43  120.54, Florida Statutes, is amended, and paragraph (d) is added
   44  to that subsection, to read:
   45         120.54 Rulemaking.—
   47         (c) If the agency does not initiate rulemaking or otherwise
   48  comply with the requested action within 30 days after following
   49  the public hearing provided for in by paragraph (b), if the
   50  agency does not initiate rulemaking or otherwise comply with the
   51  requested action, the agency shall publish in the Florida
   52  Administrative Register a statement of its reasons for not
   53  initiating rulemaking or otherwise complying with the requested
   54  action, and of any changes it will make in the scope or
   55  application of the unadopted rule. The agency shall file the
   56  statement with the committee. The committee shall forward a copy
   57  of the statement to the substantive committee with primary
   58  oversight jurisdiction of the agency in each house of the
   59  Legislature. The committee or the committee with primary
   60  oversight jurisdiction may hold a hearing directed to the
   61  statement of the agency. The committee holding the hearing may
   62  recommend to the Legislature the introduction of legislation
   63  making the rule a statutory standard or limiting or otherwise
   64  modifying the authority of the agency.
   65         (d) If the agency initiates rulemaking after the public
   66  hearing provided for in paragraph (b), the agency shall publish
   67  a notice of rule development within 30 days after the hearing
   68  and file a notice of proposed rule within 180 days after the
   69  notice of rule development unless, before the 180th day, the
   70  agency publishes in the Florida Administrative Register a
   71  statement explaining its reasons for not having filed the
   72  notice. If rulemaking is initiated under this paragraph, the
   73  agency may not rely on the unadopted rule unless the agency
   74  publishes in the Florida Administrative Register a statement
   75  explaining why rulemaking under paragraph (1)(a) was not
   76  previously feasible or practicable before the public hearing.
   77         Section 2. Section 120.55, Florida Statutes, is amended to
   78  read:
   79         120.55 Publication.—
   80         (1) The Department of State shall:
   81         (a)1. Through a continuous revision and publication system,
   82  compile and publish electronically, on a an Internet website
   83  managed by the department, the “Florida Administrative Code.”
   84  The Florida Administrative Code shall contain all rules adopted
   85  by each agency, citing the grant of rulemaking authority and the
   86  specific law implemented pursuant to which each rule was
   87  adopted, all history notes as authorized in s. 120.545(7),
   88  complete indexes to all rules contained in the code, and any
   89  other material required or authorized by law or deemed useful by
   90  the department. The electronic code shall display each rule
   91  chapter currently in effect in browse mode and allow full text
   92  search of the code and each rule chapter. The department may
   93  contract with a publishing firm for a printed publication;
   94  however, the department shall retain responsibility for the code
   95  as provided in this section. The electronic publication shall be
   96  the official compilation of the administrative rules of this
   97  state. The Department of State shall retain the copyright over
   98  the Florida Administrative Code.
   99         2. Rules general in form but applicable to only one school
  100  district, community college district, or county, or a part
  101  thereof, or state university rules relating to internal
  102  personnel or business and finance shall not be published in the
  103  Florida Administrative Code. Exclusion from publication in the
  104  Florida Administrative Code shall not affect the validity or
  105  effectiveness of such rules.
  106         3. At the beginning of the section of the code dealing with
  107  an agency that files copies of its rules with the department,
  108  the department shall publish the address and telephone number of
  109  the executive offices of each agency, the manner by which the
  110  agency indexes its rules, a listing of all rules of that agency
  111  excluded from publication in the code, and a statement as to
  112  where those rules may be inspected.
  113         4. Forms shall not be published in the Florida
  114  Administrative Code; but any form which an agency uses in its
  115  dealings with the public, along with any accompanying
  116  instructions, shall be filed with the committee before it is
  117  used. Any form or instruction which meets the definition of
  118  “rule” provided in s. 120.52 shall be incorporated by reference
  119  into the appropriate rule. The reference shall specifically
  120  state that the form is being incorporated by reference and shall
  121  include the number, title, and effective date of the form and an
  122  explanation of how the form may be obtained. Each form created
  123  by an agency which is incorporated by reference in a rule notice
  124  of which is given under s. 120.54(3)(a) after December 31, 2007,
  125  must clearly display the number, title, and effective date of
  126  the form and the number of the rule in which the form is
  127  incorporated.
  128         5. The department shall allow adopted rules and material
  129  incorporated by reference to be filed in electronic form as
  130  prescribed by department rule. When a rule is filed for adoption
  131  with incorporated material in electronic form, the department’s
  132  publication of the Florida Administrative Code on its Internet
  133  website must contain a hyperlink from the incorporating
  134  reference in the rule directly to that material. The department
  135  may not allow hyperlinks from rules in the Florida
  136  Administrative Code to any material other than that filed with
  137  and maintained by the department, but may allow hyperlinks to
  138  incorporated material maintained by the department from the
  139  adopting agency’s website or other sites.
  140         (b) Electronically publish on a an Internet website managed
  141  by the department a continuous revision and publication entitled
  142  the “Florida Administrative Register,” which shall serve as the
  143  official publication and must contain:
  144         1. All notices required by s. 120.54(2) and (3)(a)
  145  120.54(3)(a), showing the text of all rules proposed for
  146  consideration.
  147         2. All notices of public meetings, hearings, and workshops
  148  conducted in accordance with s. 120.525, including a statement
  149  of the manner in which a copy of the agenda may be obtained.
  150         3. A notice of each request for authorization to amend or
  151  repeal an existing uniform rule or for the adoption of new
  152  uniform rules.
  153         4. Notice of petitions for declaratory statements or
  154  administrative determinations.
  155         5. A summary of each objection to any rule filed by the
  156  Administrative Procedures Committee.
  157         6. A list of rules filed for adoption in the previous 7
  158  days.
  159         7. A list of all rules filed for adoption pending
  160  legislative ratification under s. 120.541(3). A rule shall be
  161  removed from the list once notice of ratification or withdrawal
  162  of the rule is received.
  163         8.6. Any other material required or authorized by law or
  164  deemed useful by the department.
  166  The department may contract with a publishing firm for a printed
  167  publication of the Florida Administrative Register and make
  168  copies available on an annual subscription basis.
  169         (c) Prescribe by rule the style and form required for
  170  rules, notices, and other materials submitted for filing.
  171         (d) Charge each agency using the Florida Administrative
  172  Register a space rate to cover the costs related to the Florida
  173  Administrative Register and the Florida Administrative Code.
  174         (e) Maintain a permanent record of all notices published in
  175  the Florida Administrative Register.
  176         (2) The Florida Administrative Register Internet website
  177  must allow users to:
  178         (a) Search for notices by type, publication date, rule
  179  number, word, subject, and agency.
  180         (b) Search a database that makes available all notices
  181  published on the website for a period of at least 5 years.
  182         (c) Subscribe to an automated e-mail notification of
  183  selected notices to be sent out before or concurrently with
  184  publication of the electronic Florida Administrative Register.
  185  Such notification must include in the text of the e-mail a
  186  summary of the content of each notice.
  187         (d) View agency forms and other materials submitted to the
  188  department in electronic form and incorporated by reference in
  189  proposed rules.
  190         (e) Comment on proposed rules.
  191         (3) Publication of material required by paragraph (1)(b) on
  192  the Florida Administrative Register Internet website does not
  193  preclude publication of such material on an agency’s website or
  194  by other means.
  195         (4) Each agency shall provide copies of its rules upon
  196  request, with citations to the grant of rulemaking authority and
  197  the specific law implemented for each rule.
  198         (5) Each agency that provides an e-mail notification
  199  service to inform licensees or other registered recipients of
  200  notices shall use that service to notify recipients of each
  201  notice required under s. 120.54(2) and (3) and provide Internet
  202  links to the appropriate rule page on the Secretary of State’s
  203  website or Internet links to an agency website that contains the
  204  proposed rule or final rule.
  205         (6)(5) Any publication of a proposed rule promulgated by an
  206  agency, whether published in the Florida Administrative Register
  207  or elsewhere, shall include, along with the rule, the name of
  208  the person or persons originating such rule, the name of the
  209  agency head who approved the rule, and the date upon which the
  210  rule was approved.
  211         (7)(6) Access to the Florida Administrative Register
  212  Internet website and its contents, including the e-mail
  213  notification service, shall be free for the public.
  214         (8)(7)(a) All fees and moneys collected by the Department
  215  of State under this chapter shall be deposited in the Records
  216  Management Trust Fund for the purpose of paying for costs
  217  incurred by the department in carrying out this chapter.
  218         (b) The unencumbered balance in the Records Management
  219  Trust Fund for fees collected pursuant to this chapter may not
  220  exceed $300,000 at the beginning of each fiscal year, and any
  221  excess shall be transferred to the General Revenue Fund.
  222         (9) The failure to comply with this section may not be
  223  raised in a proceeding challenging the validity of a rule
  224  pursuant to s. 120.52(8)(a).
  225         Section 3. Subsection (1), paragraph (a) of subsection (2),
  226  paragraph (a) of subsection (3), and subsection (4) of section
  227  120.56, Florida Statutes, are amended to read:
  228         120.56 Challenges to rules.—
  231         (a) Any person substantially affected by a rule or a
  232  proposed rule may seek an administrative determination of the
  233  invalidity of the rule on the ground that the rule is an invalid
  234  exercise of delegated legislative authority.
  235         (b) The petition challenging the validity of a proposed or
  236  adopted rule under this section seeking an administrative
  237  determination must state: with particularity
  238         1. The particular provisions alleged to be invalid and a
  239  statement with sufficient explanation of the facts or grounds
  240  for the alleged invalidity. and
  241         2. Facts sufficient to show that the petitioner person
  242  challenging a rule is substantially affected by the challenged
  243  adopted rule it, or that the person challenging a proposed rule
  244  would be substantially affected by the proposed rule it.
  245         (c) The petition shall be filed by electronic means with
  246  the division which shall, immediately upon filing, forward by
  247  electronic means copies to the agency whose rule is challenged,
  248  the Department of State, and the committee. Within 10 days after
  249  receiving the petition, the division director shall, if the
  250  petition complies with the requirements of paragraph (b), assign
  251  an administrative law judge who shall conduct a hearing within
  252  30 days thereafter, unless the petition is withdrawn or a
  253  continuance is granted by agreement of the parties or for good
  254  cause shown. Evidence of good cause includes, but is not limited
  255  to, written notice of an agency’s decision to modify or withdraw
  256  the proposed rule or a written notice from the chair of the
  257  committee stating that the committee will consider an objection
  258  to the rule at its next scheduled meeting. The failure of an
  259  agency to follow the applicable rulemaking procedures or
  260  requirements set forth in this chapter shall be presumed to be
  261  material; however, the agency may rebut this presumption by
  262  showing that the substantial interests of the petitioner and the
  263  fairness of the proceedings have not been impaired.
  264         (d) Within 30 days after the hearing, the administrative
  265  law judge shall render a decision and state the reasons for his
  266  or her decision therefor in writing. The division shall
  267  forthwith transmit by electronic means copies of the
  268  administrative law judge’s decision to the agency, the
  269  Department of State, and the committee.
  270         (e) Hearings held under this section shall be de novo in
  271  nature. The standard of proof shall be the preponderance of the
  272  evidence. Hearings shall be conducted in the same manner as
  273  provided by ss. 120.569 and 120.57, except that the
  274  administrative law judge’s order shall be final agency action.
  275  The petitioner and the agency whose rule is challenged shall be
  276  adverse parties. Other substantially affected persons may join
  277  the proceedings as intervenors on appropriate terms which shall
  278  not unduly delay the proceedings. Failure to proceed under this
  279  section does shall not constitute failure to exhaust
  280  administrative remedies.
  282         (a) A substantially affected person may seek an
  283  administrative determination of the invalidity of a proposed
  284  rule by filing a petition alleging the invalidity of a proposed
  285  rule shall be filed seeking such a determination with the
  286  division within 21 days after the date of publication of the
  287  notice required by s. 120.54(3)(a); within 10 days after the
  288  final public hearing is held on the proposed rule as provided by
  289  s. 120.54(3)(e)2.; within 20 days after the statement of
  290  estimated regulatory costs or revised statement of estimated
  291  regulatory costs, if applicable, has been prepared and made
  292  available as provided in s. 120.541(1)(d); or within 20 days
  293  after the date of publication of the notice required by s.
  294  120.54(3)(d). The petition must state with particularity the
  295  objections to the proposed rule and the reasons that the
  296  proposed rule is an invalid exercise of delegated legislative
  297  authority. The petitioner has the burden of going forward with
  298  evidence sufficient to support the petition. The agency then has
  299  the burden to prove by a preponderance of the evidence that the
  300  proposed rule is not an invalid exercise of delegated
  301  legislative authority as to the objections raised pursuant to
  302  paragraph (1)(b). A person who is substantially affected by a
  303  change in the proposed rule may seek a determination of the
  304  validity of such change. A person who is not substantially
  305  affected by the proposed rule as initially noticed, but who is
  306  substantially affected by the rule as a result of a change, may
  307  challenge any provision of the resulting proposed rule and is
  308  not limited to challenging the change to the proposed rule.
  311         (a) A petition alleging substantially affected person may
  312  seek an administrative determination of the invalidity of an
  313  existing rule may be filed at any time during which the
  314  existence of the rule is in effect. The petitioner has the a
  315  burden of proving by a preponderance of the evidence that the
  316  existing rule is an invalid exercise of delegated legislative
  317  authority as to the objections raised.
  320         (a) Any person substantially affected by an agency
  321  statement that is an unadopted rule may seek an administrative
  322  determination that the statement violates s. 120.54(1)(a). The
  323  petition shall include the text of the statement or a
  324  description of the statement and shall state with particularity
  325  facts sufficient to show that the statement constitutes an
  326  unadopted a rule under s. 120.52 and that the agency has not
  327  adopted the statement by the rulemaking procedure provided by s.
  328  120.54.
  329         (b) The administrative law judge may extend the hearing
  330  date beyond 30 days after assignment of the case for good cause.
  331  Upon notification to the administrative law judge provided
  332  before the final hearing that the agency has published a notice
  333  of rulemaking under s. 120.54(3), such notice shall
  334  automatically operate as a stay of proceedings pending adoption
  335  of the statement as a rule. The administrative law judge may
  336  vacate the stay for good cause shown. A stay of proceedings
  337  pending rulemaking shall remain in effect so long as the agency
  338  is proceeding expeditiously and in good faith to adopt the
  339  statement as a rule.
  340         (c) If a hearing is held and the petitioner proves the
  341  allegations of the petition, the agency shall have the burden of
  342  proving that rulemaking is not feasible or not practicable under
  343  s. 120.54(1)(a).
  344         (d)(c) The administrative law judge may determine whether
  345  all or part of a statement violates s. 120.54(1)(a). The
  346  decision of the administrative law judge shall constitute a
  347  final order. The division shall transmit a copy of the final
  348  order to the Department of State and the committee. The
  349  Department of State shall publish notice of the final order in
  350  the first available issue of the Florida Administrative
  351  Register.
  352         (e)(d) If an administrative law judge enters a final order
  353  that all or part of an unadopted rule agency statement violates
  354  s. 120.54(1)(a), the agency must immediately discontinue all
  355  reliance upon the unadopted rule statement or any substantially
  356  similar statement as a basis for agency action.
  357         (f)(e) If proposed rules addressing the challenged
  358  unadopted rule statement are determined to be an invalid
  359  exercise of delegated legislative authority as defined in s.
  360  120.52(8)(b)-(f), the agency must immediately discontinue
  361  reliance upon on the unadopted rule statement and any
  362  substantially similar statement until rules addressing the
  363  subject are properly adopted, and the administrative law judge
  364  shall enter a final order to that effect.
  365         (g)(f) All proceedings to determine a violation of s.
  366  120.54(1)(a) shall be brought pursuant to this subsection. A
  367  proceeding pursuant to this subsection may be consolidated with
  368  a proceeding under subsection (3) or under any other section of
  369  this chapter. This paragraph does not prevent a party whose
  370  substantial interests have been determined by an agency action
  371  from bringing a proceeding pursuant to s. 120.57(1)(e).
  372         Section 4. Paragraphs (e) and (h) of subsection (1) and
  373  subsection (2) of section 120.57, Florida Statutes, are amended
  374  to read:
  375         120.57 Additional procedures for particular cases.—
  378         (e)1. An agency or an administrative law judge may not base
  379  agency action that determines the substantial interests of a
  380  party on an unadopted rule or a rule that is an invalid exercise
  381  of delegated legislative authority. The administrative law judge
  382  shall determine whether an agency statement constitutes an
  383  unadopted rule. This subparagraph does not preclude application
  384  of valid adopted rules and applicable provisions of law to the
  385  facts.
  386         2. In a matter initiated as a result of agency action
  387  proposing to determine the substantial interests of a party, the
  388  party’s timely petition for hearing may challenge the proposed
  389  agency action based on a rule that is an invalid exercise of
  390  delegated legislative authority or based on an alleged unadopted
  391  rule. For challenges brought under this subparagraph:
  392         a. The challenge may be pled as a defense using the
  393  procedures set forth in s. 120.56(1).
  394         b. Section 120.56(3)(a) applies to a challenge alleging
  395  that a rule is an invalid exercise of delegated legislative
  396  authority.
  397         c. Section 120.56(4)(c) applies to a challenge alleging an
  398  unadopted rule.
  399         d. This subparagraph does not preclude the consolidation of
  400  any proceeding under s. 120.56 with any proceeding under this
  401  paragraph.
  402         3.2. Notwithstanding subparagraph 1., if an agency
  403  demonstrates that the statute being implemented directs it to
  404  adopt rules, that the agency has not had time to adopt those
  405  rules because the requirement was so recently enacted, and that
  406  the agency has initiated rulemaking and is proceeding
  407  expeditiously and in good faith to adopt the required rules,
  408  then the agency’s action may be based upon those unadopted rules
  409  if, subject to de novo review by the administrative law judge
  410  determines that rulemaking is neither feasible nor practicable
  411  and the unadopted rules would not constitute an invalid exercise
  412  of delegated legislative authority if adopted as rules. An
  413  unadopted rule The agency action shall not be presumed valid or
  414  invalid. The agency must demonstrate that the unadopted rule:
  415         a. Is within the powers, functions, and duties delegated by
  416  the Legislature or, if the agency is operating pursuant to
  417  authority vested in the agency by derived from the State
  418  Constitution, is within that authority;
  419         b. Does not enlarge, modify, or contravene the specific
  420  provisions of law implemented;
  421         c. Is not vague, establishes adequate standards for agency
  422  decisions, or does not vest unbridled discretion in the agency;
  423         d. Is not arbitrary or capricious. A rule is arbitrary if
  424  it is not supported by logic or the necessary facts; a rule is
  425  capricious if it is adopted without thought or reason or is
  426  irrational;
  427         e. Is not being applied to the substantially affected party
  428  without due notice; and
  429         f. Does not impose excessive regulatory costs on the
  430  regulated person, county, or city.
  431         4.3. The recommended and final orders in any proceeding
  432  shall be governed by the provisions of paragraphs (k) and (l),
  433  except that the administrative law judge’s determination
  434  regarding an unadopted rule under subparagraph 1. or
  435  subparagraph 2. shall not be rejected by the agency unless the
  436  agency first determines from a review of the complete record,
  437  and states with particularity in the order, that such
  438  determination is clearly erroneous or does not comply with
  439  essential requirements of law. In any proceeding for review
  440  under s. 120.68, if the court finds that the agency’s rejection
  441  of the determination regarding the unadopted rule does not
  442  comport with the provisions of this subparagraph, the agency
  443  action shall be set aside and the court shall award to the
  444  prevailing party the reasonable costs and a reasonable attorney
  445  attorney’s fee for the initial proceeding and the proceeding for
  446  review.
  447         5. A petitioner may pursue a separate, collateral challenge
  448  under s. 120.56 even if an adequate remedy exists through a
  449  proceeding under this section. The administrative law judge may
  450  consolidate the proceedings.
  451         (h) Any party to a proceeding in which an administrative
  452  law judge of the Division of Administrative Hearings has final
  453  order authority may move for a summary final order when there is
  454  no genuine issue as to any material fact. A summary final order
  455  shall be rendered if the administrative law judge determines
  456  from the pleadings, depositions, answers to interrogatories, and
  457  admissions on file, together with affidavits, if any, that no
  458  genuine issue as to any material fact exists and that the moving
  459  party is entitled as a matter of law to the entry of a final
  460  order. A summary final order shall consist of findings of fact,
  461  if any, conclusions of law, a disposition or penalty, if
  462  applicable, and any other information required by law to be
  463  contained in the final order.
  466  subsection (1) does not apply:
  467         (a) The agency shall:
  468         1. Give reasonable notice to affected persons of the action
  469  of the agency, whether proposed or already taken, or of its
  470  decision to refuse action, together with a summary of the
  471  factual, legal, and policy grounds therefor.
  472         2. Give parties or their counsel the option, at a
  473  convenient time and place, to present to the agency or hearing
  474  officer written or oral evidence in opposition to the action of
  475  the agency or to its refusal to act, or a written statement
  476  challenging the grounds upon which the agency has chosen to
  477  justify its action or inaction.
  478         3. If the objections of the parties are overruled, provide
  479  a written explanation within 7 days.
  480         (b) An agency may not base agency action that determines
  481  the substantial interests of a party on an unadopted rule or a
  482  rule that is an invalid exercise of delegated legislative
  483  authority.
  484         (c)(b) The record shall only consist of:
  485         1. The notice and summary of grounds.
  486         2. Evidence received.
  487         3. All written statements submitted.
  488         4. Any decision overruling objections.
  489         5. All matters placed on the record after an ex parte
  490  communication.
  491         6. The official transcript.
  492         7. Any decision, opinion, order, or report by the presiding
  493  officer.
  494         Section 5. Subsections (1) and (9) of section 120.68,
  495  Florida Statutes, are amended to read:
  496         120.68 Judicial review.—
  497         (1)(a) A party who is adversely affected by final agency
  498  action is entitled to judicial review.
  499         (b) A preliminary, procedural, or intermediate order of the
  500  agency or of an administrative law judge of the Division of
  501  Administrative Hearings is immediately reviewable if review of
  502  the final agency decision would not provide an adequate remedy.
  503         (9) A No petition challenging an agency rule as an invalid
  504  exercise of delegated legislative authority shall not be
  505  instituted pursuant to this section, except to review an order
  506  entered pursuant to a proceeding under s. 120.56, s.
  507  120.57(1)(e)1., or s. 120.57(2)(b) or an agency’s findings of
  508  immediate danger, necessity, and procedural fairness
  509  prerequisite to the adoption of an emergency rule pursuant to s.
  510  120.54(4), unless the sole issue presented by the petition is
  511  the constitutionality of a rule and there are no disputed issues
  512  of fact.
  513         Section 6. Section 120.695, Florida Statutes, is amended to
  514  read:
  515         120.695 Notice of noncompliance; designation of minor
  516  violation of rules.—
  517         (1) It is the policy of the state that the purpose of
  518  regulation is to protect the public by attaining compliance with
  519  the policies established by the Legislature. Fines and other
  520  penalties may be provided in order to assure compliance;
  521  however, the collection of fines and the imposition of penalties
  522  are intended to be secondary to the primary goal of attaining
  523  compliance with an agency’s rules. It is the intent of the
  524  Legislature that an agency charged with enforcing rules shall
  525  issue a notice of noncompliance as its first response to a minor
  526  violation of a rule in any instance in which it is reasonable to
  527  assume that the violator was unaware of the rule or unclear as
  528  to how to comply with it.
  529         (2)(a) Each agency shall issue a notice of noncompliance as
  530  a first response to a minor violation of a rule. A “notice of
  531  noncompliance” is a notification by the agency charged with
  532  enforcing the rule issued to the person or business subject to
  533  the rule. A notice of noncompliance may not be accompanied with
  534  a fine or other disciplinary penalty. It must identify the
  535  specific rule that is being violated, provide information on how
  536  to comply with the rule, and specify a reasonable time for the
  537  violator to comply with the rule. A rule is agency action that
  538  regulates a business, occupation, or profession, or regulates a
  539  person operating a business, occupation, or profession, and
  540  that, if not complied with, may result in a disciplinary
  541  penalty.
  542         (b) Each agency shall review all of its rules and designate
  543  those for which a violation would be a minor violation and for
  544  which a notice of noncompliance must be the first enforcement
  545  action taken against a person or business subject to regulation.
  546  A violation of a rule is a minor violation if it does not result
  547  in economic or physical harm to a person or adversely affect the
  548  public health, safety, or welfare or create a significant threat
  549  of such harm. If an agency under the direction of a cabinet
  550  officer mails to each licensee a notice of the designated rules
  551  at the time of licensure and at least annually thereafter, the
  552  provisions of paragraph (a) may be exercised at the discretion
  553  of the agency. Such notice shall include a subject-matter index
  554  of the rules and information on how the rules may be obtained.
  555         (c)1. No later than June 30, 2017, and after such date
  556  within 3 months after any request of the rules ombudsman in the
  557  Executive Office of the Governor, The agency’s review and
  558  designation must be completed by December 1, 1995; each agency
  559  shall review under the direction of the Governor shall make a
  560  report to the Governor, and each agency under the joint
  561  direction of the Governor and Cabinet shall report to the
  562  Governor and Cabinet by January 1, 1996, on which of its rules
  563  and certify to the President of the Senate, the Speaker of the
  564  House of Representatives, the committee, and the rules ombudsman
  565  those rules that have been designated as rules the violation of
  566  which would be a minor violation under paragraph (b), consistent
  567  with the legislative intent stated in subsection (1).
  568         2. Beginning July 1, 2017, each agency shall:
  569         a. Publish all rules that the agency has designated as
  570  rules the violation of which would be a minor violation, either
  571  as a complete list on the agency’s website or by incorporation
  572  of the designations in the agency’s disciplinary guidelines
  573  adopted as a rule.
  574         b. Ensure that all investigative and enforcement personnel
  575  are knowledgeable about the agency’s designations under this
  576  section.
  577         3. For each rule filed for adoption, the agency head shall
  578  certify whether any part of the rule is designated as a rule the
  579  violation of which would be a minor violation and shall update
  580  the listing required by sub-subparagraph 2.a.
  581         (d) The Governor or the Governor and Cabinet, as
  582  appropriate pursuant to paragraph (c), may evaluate the review
  583  and designation effects of each agency subject to the direction
  584  and supervision of such authority and may direct apply a
  585  different designation than that applied by such the agency.
  586         (e) Notwithstanding s. 120.52(1)(a), this section does not
  587  apply to:
  588         1. The Department of Corrections;
  589         2. Educational units;
  590         3. The regulation of law enforcement personnel; or
  591         4. The regulation of teachers.
  592         (f) Designation pursuant to this section is not subject to
  593  challenge under this chapter.
  594         Section 7. Paragraph (a) of subsection (4) of section
  595  120.595, Florida Statutes, is amended to read:
  596         120.595 Attorney’s fees.—
  598  120.56(4).—
  599         (a) If the appellate court or administrative law judge
  600  determines that all or part of an agency statement violates s.
  601  120.54(1)(a), or that the agency must immediately discontinue
  602  reliance on the statement and any substantially similar
  603  statement pursuant to s. 120.56(4)(f) s. 120.56(4)(e), a
  604  judgment or order shall be entered against the agency for
  605  reasonable costs and reasonable attorney’s fees, unless the
  606  agency demonstrates that the statement is required by the
  607  Federal Government to implement or retain a delegated or
  608  approved program or to meet a condition to receipt of federal
  609  funds.
  610         Section 8. This act shall take effect July 1, 2016.