Florida Senate - 2016                              CS for SB 372
       By the Committee on Judiciary; and Senator Lee
       590-01328-16                                           2016372c1
    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 regarding challenges to
   17         rules; specifying the petitioner’s burden of proof in
   18         proposed rule challenges; amending s. 120.57, F.S.;
   19         conforming proceedings that oppose agency action based
   20         on an invalid or unadopted rule to proceedings used
   21         for challenging rules; authorizing the administrative
   22         law judge to make certain findings on the validity of
   23         certain alleged unadopted rules; authorizing a
   24         petitioner to file certain collateral challenges
   25         regarding the validity of a rule; authorizing the
   26         administrative law judge to consolidate proceedings in
   27         such rule challenges; providing that agency action may
   28         not be based on an invalid or unadopted rule; amending
   29         s. 120.68, F.S.; specifying legal authority to file a
   30         petition challenging an agency rule as an invalid
   31         exercise of delegated legislative authority; amending
   32         s. 120.695, F.S.; removing obsolete provisions with
   33         respect to required agency review and designation of
   34         minor violations; requiring agency review and
   35         certification of minor violation rules by a specified
   36         date; requiring minor violation certification for all
   37         rules adopted after a specified date; requiring public
   38         notice; providing applicability; amending s. 120.595,
   39         F.S.; conforming a cross-reference; providing an
   40         effective date.
   42  Be It Enacted by the Legislature of the State of Florida:
   44         Section 1. Paragraph (c) of subsection (7) of section
   45  120.54, Florida Statutes, is amended, and paragraph (d) is added
   46  to that subsection, to read:
   47         120.54 Rulemaking.—
   49         (c) If the agency does not initiate rulemaking or otherwise
   50  comply with the requested action within 30 days after following
   51  the public hearing provided for in by paragraph (b), if the
   52  agency does not initiate rulemaking or otherwise comply with the
   53  requested action, the agency shall publish in the Florida
   54  Administrative Register a statement of its reasons for not
   55  initiating rulemaking or otherwise complying with the requested
   56  action, and of any changes it will make in the scope or
   57  application of the unadopted rule. The agency shall file the
   58  statement with the committee. The committee shall forward a copy
   59  of the statement to the substantive committee with primary
   60  oversight jurisdiction of the agency in each house of the
   61  Legislature. The committee or the committee with primary
   62  oversight jurisdiction may hold a hearing directed to the
   63  statement of the agency. The committee holding the hearing may
   64  recommend to the Legislature the introduction of legislation
   65  making the rule a statutory standard or limiting or otherwise
   66  modifying the authority of the agency.
   67         (d) If the agency initiates rulemaking after the public
   68  hearing provided for in paragraph (b), the agency shall publish
   69  a notice of rule development within 30 days after the hearing
   70  and file a notice of proposed rule within 180 days after the
   71  notice of rule development unless, before the 180th day, the
   72  agency publishes in the Florida Administrative Register a
   73  statement explaining its reasons for not having filed the
   74  notice. If rulemaking is initiated under this paragraph, the
   75  agency may not rely on the unadopted rule unless the agency
   76  publishes in the Florida Administrative Register a statement
   77  explaining why rulemaking under paragraph (1)(a) was not
   78  previously feasible or practicable before the public hearing.
   79         Section 2. Section 120.55, Florida Statutes, is amended to
   80  read:
   81         120.55 Publication.—
   82         (1) The Department of State shall:
   83         (a)1. Through a continuous revision and publication system,
   84  compile and publish electronically, on a an Internet website
   85  managed by the department, the “Florida Administrative Code.”
   86  The Florida Administrative Code shall contain all rules adopted
   87  by each agency, citing the grant of rulemaking authority and the
   88  specific law implemented pursuant to which each rule was
   89  adopted, all history notes as authorized in s. 120.545(7),
   90  complete indexes to all rules contained in the code, and any
   91  other material required or authorized by law or deemed useful by
   92  the department. The electronic code shall display each rule
   93  chapter currently in effect in browse mode and allow full text
   94  search of the code and each rule chapter. The department may
   95  contract with a publishing firm for a printed publication;
   96  however, the department shall retain responsibility for the code
   97  as provided in this section. The electronic publication shall be
   98  the official compilation of the administrative rules of this
   99  state. The Department of State shall retain the copyright over
  100  the Florida Administrative Code.
  101         2. Rules general in form but applicable to only one school
  102  district, community college district, or county, or a part
  103  thereof, or state university rules relating to internal
  104  personnel or business and finance shall not be published in the
  105  Florida Administrative Code. Exclusion from publication in the
  106  Florida Administrative Code shall not affect the validity or
  107  effectiveness of such rules.
  108         3. At the beginning of the section of the code dealing with
  109  an agency that files copies of its rules with the department,
  110  the department shall publish the address and telephone number of
  111  the executive offices of each agency, the manner by which the
  112  agency indexes its rules, a listing of all rules of that agency
  113  excluded from publication in the code, and a statement as to
  114  where those rules may be inspected.
  115         4. Forms shall not be published in the Florida
  116  Administrative Code; but any form which an agency uses in its
  117  dealings with the public, along with any accompanying
  118  instructions, shall be filed with the committee before it is
  119  used. Any form or instruction which meets the definition of
  120  “rule” provided in s. 120.52 shall be incorporated by reference
  121  into the appropriate rule. The reference shall specifically
  122  state that the form is being incorporated by reference and shall
  123  include the number, title, and effective date of the form and an
  124  explanation of how the form may be obtained. Each form created
  125  by an agency which is incorporated by reference in a rule notice
  126  of which is given under s. 120.54(3)(a) after December 31, 2007,
  127  must clearly display the number, title, and effective date of
  128  the form and the number of the rule in which the form is
  129  incorporated.
  130         5. The department shall allow adopted rules and material
  131  incorporated by reference to be filed in electronic form as
  132  prescribed by department rule. When a rule is filed for adoption
  133  with incorporated material in electronic form, the department’s
  134  publication of the Florida Administrative Code on its Internet
  135  website must contain a hyperlink from the incorporating
  136  reference in the rule directly to that material. The department
  137  may not allow hyperlinks from rules in the Florida
  138  Administrative Code to any material other than that filed with
  139  and maintained by the department, but may allow hyperlinks to
  140  incorporated material maintained by the department from the
  141  adopting agency’s website or other sites.
  142         (b) Electronically publish on a an Internet website managed
  143  by the department a continuous revision and publication entitled
  144  the “Florida Administrative Register,” which shall serve as the
  145  official publication and must contain:
  146         1. All notices required by s. 120.54(2) and (3)(a)
  147  120.54(3)(a), showing the text of all rules proposed for
  148  consideration.
  149         2. All notices of public meetings, hearings, and workshops
  150  conducted in accordance with s. 120.525, including a statement
  151  of the manner in which a copy of the agenda may be obtained.
  152         3. A notice of each request for authorization to amend or
  153  repeal an existing uniform rule or for the adoption of new
  154  uniform rules.
  155         4. Notice of petitions for declaratory statements or
  156  administrative determinations.
  157         5. A summary of each objection to any rule filed by the
  158  Administrative Procedures Committee.
  159         6. A list of rules filed for adoption in the previous 7
  160  days.
  161         7. A list of all rules filed for adoption pending
  162  legislative ratification under s. 120.541(3). A rule shall be
  163  removed from the list once notice of ratification or withdrawal
  164  of the rule is received.
  165         8.6. Any other material required or authorized by law or
  166  deemed useful by the department.
  168  The department may contract with a publishing firm for a printed
  169  publication of the Florida Administrative Register and make
  170  copies available on an annual subscription basis.
  171         (c) Prescribe by rule the style and form required for
  172  rules, notices, and other materials submitted for filing.
  173         (d) Charge each agency using the Florida Administrative
  174  Register a space rate to cover the costs related to the Florida
  175  Administrative Register and the Florida Administrative Code.
  176         (e) Maintain a permanent record of all notices published in
  177  the Florida Administrative Register.
  178         (2) The Florida Administrative Register Internet website
  179  must allow users to:
  180         (a) Search for notices by type, publication date, rule
  181  number, word, subject, and agency.
  182         (b) Search a database that makes available all notices
  183  published on the website for a period of at least 5 years.
  184         (c) Subscribe to an automated e-mail notification of
  185  selected notices to be sent out before or concurrently with
  186  publication of the electronic Florida Administrative Register.
  187  Such notification must include in the text of the e-mail a
  188  summary of the content of each notice.
  189         (d) View agency forms and other materials submitted to the
  190  department in electronic form and incorporated by reference in
  191  proposed rules.
  192         (e) Comment on proposed rules.
  193         (3) Publication of material required by paragraph (1)(b) on
  194  the Florida Administrative Register Internet website does not
  195  preclude publication of such material on an agency’s website or
  196  by other means.
  197         (4) Each agency shall provide copies of its rules upon
  198  request, with citations to the grant of rulemaking authority and
  199  the specific law implemented for each rule.
  200         (5) Each agency that provides an e-mail notification
  201  service to inform licensees or other registered recipients of
  202  notices shall use that service to notify recipients of each
  203  notice required under s. 120.54(2) and (3) and provide Internet
  204  links to the appropriate rule page on the Secretary of State’s
  205  website or Internet links to an agency website that contains the
  206  proposed rule or final rule.
  207         (6)(5) Any publication of a proposed rule promulgated by an
  208  agency, whether published in the Florida Administrative Register
  209  or elsewhere, shall include, along with the rule, the name of
  210  the person or persons originating such rule, the name of the
  211  agency head who approved the rule, and the date upon which the
  212  rule was approved.
  213         (7)(6) Access to the Florida Administrative Register
  214  Internet website and its contents, including the e-mail
  215  notification service, shall be free for the public.
  216         (8)(7)(a) All fees and moneys collected by the Department
  217  of State under this chapter shall be deposited in the Records
  218  Management Trust Fund for the purpose of paying for costs
  219  incurred by the department in carrying out this chapter.
  220         (b) The unencumbered balance in the Records Management
  221  Trust Fund for fees collected pursuant to this chapter may not
  222  exceed $300,000 at the beginning of each fiscal year, and any
  223  excess shall be transferred to the General Revenue Fund.
  224         (9) The failure to comply with this section may not be
  225  raised in a proceeding challenging the validity of a rule
  226  pursuant to s. 120.52(8)(a).
  227         Section 3. Subsection (1), paragraph (a) of subsection (2),
  228  paragraph (a) of subsection (3), and subsection (4) of section
  229  120.56, Florida Statutes, are amended to read:
  230         120.56 Challenges to rules.—
  233         (a) Any person substantially affected by a rule or a
  234  proposed rule may seek an administrative determination of the
  235  invalidity of the rule on the ground that the rule is an invalid
  236  exercise of delegated legislative authority.
  237         (b) The petition challenging the validity of a proposed or
  238  adopted rule under this section seeking an administrative
  239  determination must state: with particularity
  240         1. The particular provisions alleged to be invalid and a
  241  statement with sufficient explanation of the facts or grounds
  242  for the alleged invalidity. and
  243         2. Facts sufficient to show that the petitioner person
  244  challenging a rule is substantially affected by the challenged
  245  adopted rule it, or that the person challenging a proposed rule
  246  would be substantially affected by the proposed rule it.
  247         (c) The petition shall be filed by electronic means with
  248  the division which shall, immediately upon filing, forward by
  249  electronic means copies to the agency whose rule is challenged,
  250  the Department of State, and the committee. Within 10 days after
  251  receiving the petition, the division director shall, if the
  252  petition complies with the requirements of paragraph (b), assign
  253  an administrative law judge who shall conduct a hearing within
  254  30 days thereafter, unless the petition is withdrawn or a
  255  continuance is granted by agreement of the parties or for good
  256  cause shown. Evidence of good cause includes, but is not limited
  257  to, written notice of an agency’s decision to modify or withdraw
  258  the proposed rule or a written notice from the chair of the
  259  committee stating that the committee will consider an objection
  260  to the rule at its next scheduled meeting. The failure of an
  261  agency to follow the applicable rulemaking procedures or
  262  requirements set forth in this chapter shall be presumed to be
  263  material; however, the agency may rebut this presumption by
  264  showing that the substantial interests of the petitioner and the
  265  fairness of the proceedings have not been impaired.
  266         (d) Within 30 days after the hearing, the administrative
  267  law judge shall render a decision and state the reasons for his
  268  or her decision therefor in writing. The division shall
  269  forthwith transmit by electronic means copies of the
  270  administrative law judge’s decision to the agency, the
  271  Department of State, and the committee.
  272         (e) Hearings held under this section shall be de novo in
  273  nature. The standard of proof shall be the preponderance of the
  274  evidence. Hearings shall be conducted in the same manner as
  275  provided by ss. 120.569 and 120.57, except that the
  276  administrative law judge’s order shall be final agency action.
  277  The petitioner and the agency whose rule is challenged shall be
  278  adverse parties. Other substantially affected persons may join
  279  the proceedings as intervenors on appropriate terms which shall
  280  not unduly delay the proceedings. Failure to proceed under this
  281  section does shall not constitute failure to exhaust
  282  administrative remedies.
  284         (a) A substantially affected person may seek an
  285  administrative determination of the invalidity of a proposed
  286  rule by filing a petition alleging the invalidity of a proposed
  287  rule shall be filed seeking such a determination with the
  288  division within 21 days after the date of publication of the
  289  notice required by s. 120.54(3)(a); within 10 days after the
  290  final public hearing is held on the proposed rule as provided by
  291  s. 120.54(3)(e)2.; within 20 days after the statement of
  292  estimated regulatory costs or revised statement of estimated
  293  regulatory costs, if applicable, has been prepared and made
  294  available as provided in s. 120.541(1)(d); or within 20 days
  295  after the date of publication of the notice required by s.
  296  120.54(3)(d). The petition must state with particularity the
  297  objections to the proposed rule and the reasons that the
  298  proposed rule is an invalid exercise of delegated legislative
  299  authority. The petitioner has the burden to prove by a
  300  preponderance of the evidence that it would be substantially
  301  affected by the proposed rule of going forward. The agency then
  302  has the burden to prove by a preponderance of the evidence that
  303  the proposed rule is not an invalid exercise of delegated
  304  legislative authority as to the objections raised. A person who
  305  is substantially affected by a change in the proposed rule may
  306  seek a determination of the validity of such change. A person
  307  who is not substantially affected by the proposed rule as
  308  initially noticed, but who is substantially affected by the rule
  309  as a result of a change, may challenge any provision of the
  310  resulting proposed rule and is not limited to challenging the
  311  change to the proposed rule.
  314         (a) A petition alleging substantially affected person may
  315  seek an administrative determination of the invalidity of an
  316  existing rule may be filed at any time during which the
  317  existence of the rule is in effect. The petitioner has the a
  318  burden of proving by a preponderance of the evidence that the
  319  existing rule is an invalid exercise of delegated legislative
  320  authority as to the objections raised.
  323         (a) Any person substantially affected by an agency
  324  statement that is an unadopted rule may seek an administrative
  325  determination that the statement violates s. 120.54(1)(a). The
  326  petition shall include the text of the statement or a
  327  description of the statement and shall state with particularity
  328  facts sufficient to show that the statement constitutes an
  329  unadopted a rule under s. 120.52 and that the agency has not
  330  adopted the statement by the rulemaking procedure provided by s.
  331  120.54.
  332         (b) The administrative law judge may extend the hearing
  333  date beyond 30 days after assignment of the case for good cause.
  334  Upon notification to the administrative law judge provided
  335  before the final hearing that the agency has published a notice
  336  of rulemaking under s. 120.54(3), such notice shall
  337  automatically operate as a stay of proceedings pending adoption
  338  of the statement as a rule. The administrative law judge may
  339  vacate the stay for good cause shown. A stay of proceedings
  340  pending rulemaking shall remain in effect so long as the agency
  341  is proceeding expeditiously and in good faith to adopt the
  342  statement as a rule.
  343         (c) If a hearing is held and the petitioner proves the
  344  allegations of the petition, the agency shall have the burden of
  345  proving that rulemaking is not feasible or not practicable under
  346  s. 120.54(1)(a).
  347         (d)(c) The administrative law judge may determine whether
  348  all or part of a statement violates s. 120.54(1)(a). The
  349  decision of the administrative law judge shall constitute a
  350  final order. The division shall transmit a copy of the final
  351  order to the Department of State and the committee. The
  352  Department of State shall publish notice of the final order in
  353  the first available issue of the Florida Administrative
  354  Register.
  355         (e)(d) If an administrative law judge enters a final order
  356  that all or part of an unadopted rule agency statement violates
  357  s. 120.54(1)(a), the agency must immediately discontinue all
  358  reliance upon the unadopted rule statement or any substantially
  359  similar statement as a basis for agency action.
  360         (f)(e) If proposed rules addressing the challenged
  361  unadopted rule statement are determined to be an invalid
  362  exercise of delegated legislative authority as defined in s.
  363  120.52(8)(b)-(f), the agency must immediately discontinue
  364  reliance upon on the unadopted rule statement and any
  365  substantially similar statement until rules addressing the
  366  subject are properly adopted, and the administrative law judge
  367  shall enter a final order to that effect.
  368         (g)(f) All proceedings to determine a violation of s.
  369  120.54(1)(a) shall be brought pursuant to this subsection. A
  370  proceeding pursuant to this subsection may be consolidated with
  371  a proceeding under subsection (3) or under any other section of
  372  this chapter. This paragraph does not prevent a party whose
  373  substantial interests have been determined by an agency action
  374  from bringing a proceeding pursuant to s. 120.57(1)(e).
  375         Section 4. Paragraphs (e) and (h) of subsection (1) and
  376  subsection (2) of section 120.57, Florida Statutes, are amended
  377  to read:
  378         120.57 Additional procedures for particular cases.—
  381         (e)1. An agency or an administrative law judge may not base
  382  agency action that determines the substantial interests of a
  383  party on an unadopted rule or a rule that is an invalid exercise
  384  of delegated legislative authority. The administrative law judge
  385  shall determine whether an agency statement constitutes an
  386  unadopted rule. This subparagraph does not preclude application
  387  of valid adopted rules and applicable provisions of law to the
  388  facts.
  389         2. In a matter initiated as a result of agency action
  390  proposing to determine the substantial interests of a party, the
  391  party’s timely petition for hearing may challenge the proposed
  392  agency action based on a rule that is an invalid exercise of
  393  delegated legislative authority or based on an alleged unadopted
  394  rule. For challenges brought under this subparagraph:
  395         a. The challenge may be pled as a defense using the
  396  procedures set forth in s. 120.56(1).
  397         b. Section 120.56(3)(a) applies to a challenge alleging
  398  that a rule is an invalid exercise of delegated legislative
  399  authority.
  400         c. Section 120.56(4)(c) applies to a challenge alleging an
  401  unadopted rule.
  402         d. This subparagraph does not preclude the consolidation of
  403  any proceeding under s. 120.56 with any proceeding under this
  404  paragraph.
  405         3.2. Notwithstanding subparagraph 1., if an agency
  406  demonstrates that the statute being implemented directs it to
  407  adopt rules, that the agency has not had time to adopt those
  408  rules because the requirement was so recently enacted, and that
  409  the agency has initiated rulemaking and is proceeding
  410  expeditiously and in good faith to adopt the required rules,
  411  then the agency’s action may be based upon those unadopted rules
  412  if, subject to de novo review by the administrative law judge
  413  determines that rulemaking is neither feasible nor practicable
  414  and the unadopted rules would not constitute an invalid exercise
  415  of delegated legislative authority if adopted as rules. An
  416  unadopted rule The agency action shall not be presumed valid or
  417  invalid. The agency must demonstrate that the unadopted rule:
  418         a. Is within the powers, functions, and duties delegated by
  419  the Legislature or, if the agency is operating pursuant to
  420  authority vested in the agency by derived from the State
  421  Constitution, is within that authority;
  422         b. Does not enlarge, modify, or contravene the specific
  423  provisions of law implemented;
  424         c. Is not vague, establishes adequate standards for agency
  425  decisions, or does not vest unbridled discretion in the agency;
  426         d. Is not arbitrary or capricious. A rule is arbitrary if
  427  it is not supported by logic or the necessary facts; a rule is
  428  capricious if it is adopted without thought or reason or is
  429  irrational;
  430         e. Is not being applied to the substantially affected party
  431  without due notice; and
  432         f. Does not impose excessive regulatory costs on the
  433  regulated person, county, or city.
  434         4.3. The recommended and final orders in any proceeding
  435  shall be governed by the provisions of paragraphs (k) and (l),
  436  except that the administrative law judge’s determination
  437  regarding an unadopted rule under subparagraph 1. or
  438  subparagraph 2. shall not be rejected by the agency unless the
  439  agency first determines from a review of the complete record,
  440  and states with particularity in the order, that such
  441  determination is clearly erroneous or does not comply with
  442  essential requirements of law. In any proceeding for review
  443  under s. 120.68, if the court finds that the agency’s rejection
  444  of the determination regarding the unadopted rule does not
  445  comport with the provisions of this subparagraph, the agency
  446  action shall be set aside and the court shall award to the
  447  prevailing party the reasonable costs and a reasonable attorney
  448  attorney’s fee for the initial proceeding and the proceeding for
  449  review.
  450         5. A petitioner may pursue a separate, collateral challenge
  451  under s. 120.56 even if an adequate remedy exists through a
  452  proceeding under this section. The administrative law judge may
  453  consolidate the proceedings.
  454         (h) Any party to a proceeding in which an administrative
  455  law judge of the Division of Administrative Hearings has final
  456  order authority may move for a summary final order when there is
  457  no genuine issue as to any material fact. A summary final order
  458  shall be rendered if the administrative law judge determines
  459  from the pleadings, depositions, answers to interrogatories, and
  460  admissions on file, together with affidavits, if any, that no
  461  genuine issue as to any material fact exists and that the moving
  462  party is entitled as a matter of law to the entry of a final
  463  order. A summary final order shall consist of findings of fact,
  464  if any, conclusions of law, a disposition or penalty, if
  465  applicable, and any other information required by law to be
  466  contained in the final order.
  469  subsection (1) does not apply:
  470         (a) The agency shall:
  471         1. Give reasonable notice to affected persons of the action
  472  of the agency, whether proposed or already taken, or of its
  473  decision to refuse action, together with a summary of the
  474  factual, legal, and policy grounds therefor.
  475         2. Give parties or their counsel the option, at a
  476  convenient time and place, to present to the agency or hearing
  477  officer written or oral evidence in opposition to the action of
  478  the agency or to its refusal to act, or a written statement
  479  challenging the grounds upon which the agency has chosen to
  480  justify its action or inaction.
  481         3. If the objections of the parties are overruled, provide
  482  a written explanation within 7 days.
  483         (b) An agency may not base agency action that determines
  484  the substantial interests of a party on an unadopted rule or a
  485  rule that is an invalid exercise of delegated legislative
  486  authority.
  487         (c)(b) The record shall only consist of:
  488         1. The notice and summary of grounds.
  489         2. Evidence received.
  490         3. All written statements submitted.
  491         4. Any decision overruling objections.
  492         5. All matters placed on the record after an ex parte
  493  communication.
  494         6. The official transcript.
  495         7. Any decision, opinion, order, or report by the presiding
  496  officer.
  497         Section 5. Subsections (1) and (9) of section 120.68,
  498  Florida Statutes, are amended to read:
  499         120.68 Judicial review.—
  500         (1)(a) A party who is adversely affected by final agency
  501  action is entitled to judicial review.
  502         (b) A preliminary, procedural, or intermediate order of the
  503  agency or of an administrative law judge of the Division of
  504  Administrative Hearings is immediately reviewable if review of
  505  the final agency decision would not provide an adequate remedy.
  506         (9) A No petition challenging an agency rule as an invalid
  507  exercise of delegated legislative authority shall not be
  508  instituted pursuant to this section, except to review an order
  509  entered pursuant to a proceeding under s. 120.56, s.
  510  120.57(1)(e)1., or s. 120.57(2)(b) or an agency’s findings of
  511  immediate danger, necessity, and procedural fairness
  512  prerequisite to the adoption of an emergency rule pursuant to s.
  513  120.54(4), unless the sole issue presented by the petition is
  514  the constitutionality of a rule and there are no disputed issues
  515  of fact.
  516         Section 6. Section 120.695, Florida Statutes, is amended to
  517  read:
  518         120.695 Notice of noncompliance; designation of minor
  519  violation of rules.—
  520         (1) It is the policy of the state that the purpose of
  521  regulation is to protect the public by attaining compliance with
  522  the policies established by the Legislature. Fines and other
  523  penalties may be provided in order to assure compliance;
  524  however, the collection of fines and the imposition of penalties
  525  are intended to be secondary to the primary goal of attaining
  526  compliance with an agency’s rules. It is the intent of the
  527  Legislature that an agency charged with enforcing rules shall
  528  issue a notice of noncompliance as its first response to a minor
  529  violation of a rule in any instance in which it is reasonable to
  530  assume that the violator was unaware of the rule or unclear as
  531  to how to comply with it.
  532         (2)(a) Each agency shall issue a notice of noncompliance as
  533  a first response to a minor violation of a rule. A “notice of
  534  noncompliance” is a notification by the agency charged with
  535  enforcing the rule issued to the person or business subject to
  536  the rule. A notice of noncompliance may not be accompanied with
  537  a fine or other disciplinary penalty. It must identify the
  538  specific rule that is being violated, provide information on how
  539  to comply with the rule, and specify a reasonable time for the
  540  violator to comply with the rule. A rule is agency action that
  541  regulates a business, occupation, or profession, or regulates a
  542  person operating a business, occupation, or profession, and
  543  that, if not complied with, may result in a disciplinary
  544  penalty.
  545         (b) Each agency shall review all of its rules and designate
  546  those for which a violation would be a minor violation and for
  547  which a notice of noncompliance must be the first enforcement
  548  action taken against a person or business subject to regulation.
  549  A violation of a rule is a minor violation if it does not result
  550  in economic or physical harm to a person or adversely affect the
  551  public health, safety, or welfare or create a significant threat
  552  of such harm. If an agency under the direction of a cabinet
  553  officer mails to each licensee a notice of the designated rules
  554  at the time of licensure and at least annually thereafter, the
  555  provisions of paragraph (a) may be exercised at the discretion
  556  of the agency. Such notice shall include a subject-matter index
  557  of the rules and information on how the rules may be obtained.
  558         (c)1. No later than June 30, 2017, and after such date
  559  within 3 months after any request of the rules ombudsman in the
  560  Executive Office of the Governor, The agency’s review and
  561  designation must be completed by December 1, 1995; each agency
  562  shall review under the direction of the Governor shall make a
  563  report to the Governor, and each agency under the joint
  564  direction of the Governor and Cabinet shall report to the
  565  Governor and Cabinet by January 1, 1996, on which of its rules
  566  and certify to the President of the Senate, the Speaker of the
  567  House of Representatives, the committee, and the rules ombudsman
  568  those rules that have been designated as rules the violation of
  569  which would be a minor violation under paragraph (b), consistent
  570  with the legislative intent stated in subsection (1).
  571         2. Beginning July 1, 2017, each agency shall:
  572         a. Publish all rules that the agency has designated as
  573  rules the violation of which would be a minor violation, either
  574  as a complete list on the agency’s website or by incorporation
  575  of the designations in the agency’s disciplinary guidelines
  576  adopted as a rule.
  577         b. Ensure that all investigative and enforcement personnel
  578  are knowledgeable about the agency’s designations under this
  579  section.
  580         3. For each rule filed for adoption, the agency head shall
  581  certify whether any part of the rule is designated as a rule the
  582  violation of which would be a minor violation and shall update
  583  the listing required by sub-subparagraph 2.a.
  584         (d) The Governor or the Governor and Cabinet, as
  585  appropriate pursuant to paragraph (c), may evaluate the review
  586  and designation effects of each agency subject to the direction
  587  and supervision of such authority and may direct apply a
  588  different designation than that applied by such the agency.
  589         (e) Notwithstanding s. 120.52(1)(a), this section does not
  590  apply to:
  591         1. The Department of Corrections;
  592         2. Educational units;
  593         3. The regulation of law enforcement personnel; or
  594         4. The regulation of teachers.
  595         (f) Designation pursuant to this section is not subject to
  596  challenge under this chapter.
  597         Section 7. Paragraph (a) of subsection (4) of section
  598  120.595, Florida Statutes, is amended to read:
  599         120.595 Attorney’s fees.—
  601  120.56(4).—
  602         (a) If the appellate court or administrative law judge
  603  determines that all or part of an agency statement violates s.
  604  120.54(1)(a), or that the agency must immediately discontinue
  605  reliance on the statement and any substantially similar
  606  statement pursuant to s. 120.56(4)(f) s. 120.56(4)(e), a
  607  judgment or order shall be entered against the agency for
  608  reasonable costs and reasonable attorney’s fees, unless the
  609  agency demonstrates that the statement is required by the
  610  Federal Government to implement or retain a delegated or
  611  approved program or to meet a condition to receipt of federal
  612  funds.
  613         Section 8. This act shall take effect July 1, 2016.