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House Bill 0257

House Bill hb0257

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    Florida House of Representatives - 2002                 HB 257

        By Representatives Spratt, Ross, Bennett, Berfield,
    Haridopolos, Bowen, Bense, Alexander, Stansel, Machek, Gibson,
    Kendrick, Harrington, Brown and Dockery




  1                      A bill to be entitled

  2         An act relating to administrative procedures;

  3         amending s. 57.111, F.S.; increasing the cap on

  4         an award of attorney's fees and costs in an

  5         action initiated by a state agency; amending s.

  6         120.54, F.S.; revising language with respect to

  7         the Uniform Rules of Procedure; amending s.

  8         120.569, F.S.; revising requirements for

  9         pleadings, motions, and other papers filed

10         under the Administrative Procedure Act;

11         amending s. 120.57, F.S.; revising provisions

12         relating to motions to relinquish jurisdiction;

13         amending s. 120.595, F.S.; redefining the term

14         "improper purpose" for determining an award of

15         attorney's fees; amending s. 120.60, F.S.;

16         revising provisions relating to applications

17         for licenses; providing an effective date.

18

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

20

21         Section 1.  Paragraph (d) of subsection (4) of section

22  57.111, Florida Statutes, is amended to read:

23         57.111  Civil actions and administrative proceedings

24  initiated by state agencies; attorneys' fees and costs.--

25         (4)

26         (d)  The court, or the administrative law judge in the

27  case of a proceeding under chapter 120, shall promptly conduct

28  an evidentiary hearing on the application for an award of

29  attorney's fees and shall issue a judgment, or a final order

30  in the case of an administrative law judge.  The final order

31  of an administrative law judge is reviewable in accordance

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    Florida House of Representatives - 2002                 HB 257

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  1  with the provisions of s. 120.68.  If the court affirms the

  2  award of attorney's fees and costs in whole or in part, it

  3  may, in its discretion, award additional attorney's fees and

  4  costs for the appeal.

  5         1.  No award of attorney's fees and costs shall be made

  6  in any case in which the state agency was a nominal party.

  7         2.  No award of attorney's fees and costs for an action

  8  initiated by a state agency shall exceed $50,000 $15,000.

  9         Section 2.  Paragraph (b) of subsection (5) of section

10  120.54, Florida Statutes, is amended to read:

11         120.54  Rulemaking.--

12         (5)  UNIFORM RULES.--

13         (b)  The uniform rules of procedure adopted by the

14  commission pursuant to this subsection shall include, but are

15  not be limited to:

16         1.  Uniform rules for the scheduling of public

17  meetings, hearings, and workshops.

18         2.  Uniform rules for use by each state agency that

19  provide procedures for conducting public meetings, hearings,

20  and workshops, and for taking evidence, testimony, and

21  argument at such public meetings, hearings, and workshops, in

22  person and by means of communications media technology. The

23  rules shall provide that all evidence, testimony, and argument

24  presented shall be afforded equal consideration, regardless of

25  the method of communication. If a public meeting, hearing, or

26  workshop is to be conducted by means of communications media

27  technology, or if attendance may be provided by such means,

28  the notice shall so state. The notice for public meetings,

29  hearings, and workshops utilizing communications media

30  technology shall state how persons interested in attending may

31  do so and shall name locations, if any, where communications

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    Florida House of Representatives - 2002                 HB 257

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  1  media technology facilities will be available. Nothing in this

  2  paragraph shall be construed to diminish the right to inspect

  3  public records under chapter 119. Limiting points of access to

  4  public meetings, hearings, and workshops subject to the

  5  provisions of s. 286.011 to places not normally open to the

  6  public shall be presumed to violate the right of access of the

  7  public, and any official action taken under such circumstances

  8  is void and of no effect. Other laws relating to public

  9  meetings, hearings, and workshops, including penal and

10  remedial provisions, shall apply to public meetings, hearings,

11  and workshops conducted by means of communications media

12  technology, and shall be liberally construed in their

13  application to such public meetings, hearings, and workshops.

14  As used in this subparagraph, "communications media

15  technology" means the electronic transmission of printed

16  matter, audio, full-motion video, freeze-frame video,

17  compressed video, and digital video by any method available.

18         3.  Uniform rules of procedure for the filing of notice

19  of protests and formal written protests.

20         4.  Uniform rules of procedure for the filing of

21  petitions for administrative hearings pursuant to s. 120.569

22  or s. 120.57.  Such rules shall require the petition to state

23  with particularity include:

24         a.  The identification of the petitioner.

25         b.  A statement of When and how the petitioner received

26  notice of the agency's action or proposed action.

27         c.  An explanation of How the petitioner's substantial

28  interests are or will be affected by the action or proposed

29  action.

30         d.  A statement of All material facts disputed by the

31  petitioner or a statement that there are no disputed facts.

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    Florida House of Representatives - 2002                 HB 257

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  1         e.  A statement of The ultimate facts alleged,

  2  including a statement of the specific facts the petitioner

  3  contends warrant reversal or modification of the agency's

  4  proposed action.

  5         f.  A statement of The specific rules or statutes,

  6  including a reference to the specific section, subsection,

  7  paragraph, or subparagraph, as appropriate, the petitioner

  8  contends require reversal or modification of the agency's

  9  proposed action.

10         g.  A statement of The relief sought by the petitioner,

11  stating precisely the action petitioner wishes the agency to

12  take with respect to the proposed action.

13         5.  Uniform rules of procedure for the filing and

14  prompt disposition of petitions for declaratory statements.

15         6.  Provision of a method by which each agency head

16  shall provide a description of the agency's organization and

17  general course of its operations.

18         7.  Uniform rules establishing procedures for granting

19  or denying petitions for variances and waivers pursuant to s.

20  120.542.

21         Section 3.  Paragraph (e) of subsection (2) of section

22  120.569, Florida Statutes, is amended, and paragraph (o) is

23  added to subsection (2) of said section, to read:

24         120.569  Decisions which affect substantial

25  interests.--

26         (2)

27         (e)1.  Every pleading, written motion, and other paper

28  filed in a proceeding must be signed by at least one attorney

29  or qualified representative of record in the attorney's or

30  qualified representative's individual name, or, if the party

31  is not represented by an attorney or qualified representative,

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    Florida House of Representatives - 2002                 HB 257

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  1  the pleading, written motion, or other paper must be signed by

  2  the party. An unsigned paper shall be stricken unless omission

  3  of the signature is corrected promptly after being called to

  4  the attention of the attorney, qualified representative, or

  5  party.

  6         2.  By presenting a pleading, written motion, or other

  7  paper, whether by signing, filing, submitting, or later

  8  advocating, an attorney, qualified representative, or

  9  unrepresented party is certifying that, to the best of the

10  person's knowledge, information, and belief, formed after an

11  inquiry reasonable under the circumstances:

12         a.  The pleading, written motion, or other paper is not

13  being presented for any improper purpose, such as to harass or

14  to cause unnecessary delay or needless increase in the cost of

15  litigation;

16         b.  The claims, defenses, and other legal contentions

17  contained in the pleading, written motion, or other paper are

18  warranted by existing law or by a nonfrivolous argument for

19  the extension, modification, or reversal of existing law or

20  the establishment of new law;

21         c.  The allegations and other factual contentions have

22  evidentiary support or, if specifically identified, are likely

23  to have evidentiary support after a reasonable opportunity for

24  further investigation or discovery; and

25         d.  The denials of factual contentions are warranted on

26  the evidence or, if specifically identified, are reasonably

27  based on lack of information or belief.

28         3.  If, after notice and reasonable opportunity to

29  respond, the presiding officer determines that subparagraph 2.

30  has been violated, the presiding officer may impose an

31  appropriate sanction against the person who signed it, the

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    Florida House of Representatives - 2002                 HB 257

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  1  represented party, or both, which may include an order to pay

  2  the other party or parties the amount of reasonable expenses

  3  incurred because of the filing of the pleading, motion, or

  4  other paper, including reasonable attorney's fees. However:

  5         a.  Monetary sanctions may not be awarded against a

  6  represented party for a violation of sub-subparagraph 2.b.

  7         b.  Monetary sanctions may not be awarded under this

  8  paragraph based on a violation of discovery rules.

  9         c.  This paragraph does not authorize the award of

10  sanctions against any person who comments on or objects to a

11  draft permit during an authorized period for public comment or

12  at a public hearing.

13         4.  Sanctions under this paragraph may be initiated at

14  any time after the initiation of a proceeding either by motion

15  or on the presiding officer's own initiative. A motion shall

16  described the specific conduct alleged to violate subparagraph

17  2. The motion shall be served upon the attorney or qualified

18  representative of a party or an unrepresented party against

19  whom such sanctions are sought and shall be filed with the

20  presiding officer. However, such motion shall not be acted

21  upon by the presiding officer or called up for hearing by the

22  movant unless, within 14 days after service of the motion or

23  such other period as the presiding officer may prescribe, the

24  challenged paper, claim, defense, contention, allegation, or

25  denial is not withdrawn or appropriately corrected. A

26  presiding officer's own initiative to impose sanctions may be

27  undertaken only after entering an order describing the

28  specific conduct that appears to violate subparagraph 2. and

29  directing the attorney or qualified representative of a party

30  or the unrepresented party to show cause why subparagraph 2.

31  has not been violated. When imposing sanctions, the presiding

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    Florida House of Representatives - 2002                 HB 257

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  1  officer shall describe the conduct determined to constitute a

  2  violation of subparagraph 2. and explain the basis for the

  3  sanction imposed. All pleadings, motions, or other papers

  4  filed in the proceeding must be signed by the party, the

  5  party's attorney, or the party's qualified representative. The

  6  signature constitutes a certificate that the person has read

  7  the pleading, motion, or other paper and that, based upon

  8  reasonable inquiry, it is not interposed for any improper

  9  purposes, such as to harass or to cause unnecessary delay, or

10  for frivolous purpose or needless increase in the cost of

11  litigation. If a pleading, motion, or other paper is signed in

12  violation of these requirements, the presiding officer shall

13  impose upon the person who signed it, the represented party,

14  or both, an appropriate sanction, which may include an order

15  to pay the other party or parties the amount of reasonable

16  expenses incurred because of the filing of the pleading,

17  motion, or other paper, including a reasonable attorney's fee.

18         (o)  On request of any party, the administrative law

19  judge shall enter an initial scheduling order to facilitate

20  the just, speedy, and inexpensive determination of the

21  proceeding. The initial scheduling order shall establish a

22  discovery period, including a deadline by which all discovery

23  shall be completed, and the date by which the parties shall

24  identify expert witnesses and their opinions. The initial

25  scheduling order also may require the parties to meet and file

26  a joint report by a date certain.

27         Section 4.  Paragraph (i) of subsection (1) of section

28  120.57, Florida Statutes, is amended to read:

29         120.57  Additional procedures for particular cases.--

30         (1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS

31  INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--

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    Florida House of Representatives - 2002                 HB 257

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  1         (i)  When, in any proceeding conducted pursuant to this

  2  subsection, a dispute of material fact no longer exists, any

  3  party may move the administrative law judge to relinquish

  4  jurisdiction to the agency. An order relinquishing

  5  jurisdiction shall be rendered if the administrative law judge

  6  determines from In ruling on such a motion, the administrative

  7  law judge may consider the pleadings, depositions, answers to

  8  interrogatories, and admissions on file, together with

  9  supporting and opposing affidavits, if any, that no genuine

10  issue as to any material fact exists.  If the administrative

11  law judge enters an order relinquishing jurisdiction, the

12  agency may promptly conduct a proceeding pursuant to

13  subsection (2), if appropriate, but the parties may not raise

14  any issues of disputed fact that could have been raised before

15  the administrative law judge.  An order entered by an

16  administrative law judge relinquishing jurisdiction to the

17  agency based upon a determination that no genuine dispute of

18  material fact exists, need not contain findings of fact,

19  conclusions of law, or a recommended disposition or penalty.

20         Section 5.  Paragraphs (c) and (e) of subsection (1) of

21  section 120.595, Florida Statutes, are amended to read:

22         120.595  Attorney's fees.--

23         (1)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

24  120.57(1).--

25         (c)  In proceedings pursuant to s. 120.57(1), and upon

26  motion, the administrative law judge shall determine whether

27  any party participated in the proceeding for an improper

28  purpose as defined by this subsection and s. 120.569(2)(e). In

29  making such determination, the administrative law judge shall

30  consider whether the nonprevailing adverse party has

31  participated in two or more other such proceedings involving

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    Florida House of Representatives - 2002                 HB 257

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  1  the same prevailing party and the same project as an adverse

  2  party and in which such two or more proceedings the

  3  nonprevailing adverse party did not establish either the

  4  factual or legal merits of its position, and shall consider

  5  whether the factual or legal position asserted in the instant

  6  proceeding would have been cognizable in the previous

  7  proceedings. In such event, it shall be rebuttably presumed

  8  that the nonprevailing adverse party participated in the

  9  pending proceeding for an improper purpose.

10         (e)  For the purpose of this subsection:

11         1.  "Improper purpose" means participation in a

12  proceeding pursuant to s. 120.57(1) primarily to harass or to

13  cause unnecessary delay or for frivolous purpose or to

14  needlessly increase the cost of litigation, licensing, or

15  securing the approval of an activity.

16         2.  "Costs" has the same meaning as the costs allowed

17  in civil actions in this state as provided in chapter 57.

18         3.  "Nonprevailing adverse party" means a party that

19  has failed to have substantially changed the outcome of the

20  proposed or final agency action which is the subject of a

21  proceeding. In the event that a proceeding results in any

22  substantial modification or condition intended to resolve the

23  matters raised in a party's petition, it shall be determined

24  that the party having raised the issue addressed is not a

25  nonprevailing adverse party.  The recommended order shall

26  state whether the change is substantial for purposes of this

27  subsection. In no event shall the term "nonprevailing party"

28  or "prevailing party" be deemed to include any party that has

29  intervened in a previously existing proceeding to support the

30  position of an agency.

31

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  1         Section 6.  Subsection (1) of section 120.60, Florida

  2  Statutes, is amended to read:

  3         120.60  Licensing.--

  4         (1)  Upon receipt of an application for a license, an

  5  agency shall examine the application and, within 30 days after

  6  such receipt, notify the applicant of any apparent errors or

  7  omissions and request any additional information the agency is

  8  permitted by law to require. An agency shall not deny a

  9  license for failure to correct an error or omission or to

10  supply additional information unless the agency timely

11  notified the applicant within this 30-day period. An

12  application shall be considered complete upon receipt of all

13  requested information and correction of any error or omission

14  for which the applicant was timely notified or when the time

15  for such notification has expired. Every application for a

16  license shall be approved or denied within 90 days after

17  receipt of a completed application unless a shorter period of

18  time for agency action is provided by law.  The 90-day time

19  period shall be tolled by the initiation of a proceeding under

20  ss. 120.569 and 120.57. Any An application for a license that

21  is not must be approved or denied within the 90-day or shorter

22  time period, within 15 days after the conclusion of a public

23  hearing held on the application, or within 45 days after the a

24  recommended order is submitted to the agency and the parties,

25  whichever is latest, is considered approved. Subject to the

26  satisfactory completion of an examination if required as a

27  prerequisite to licensure, the license shall be issued later.

28  The agency must approve any application for a license or for

29  an examination required for licensure if the agency has not

30  approved or denied the application within the time periods

31  prescribed by this subsection.

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  1         Section 7.  This act shall take effect upon becoming a

  2  law.

  3

  4            *****************************************

  5                          HOUSE SUMMARY

  6
      Revises provisions of law with respect to administrative
  7    procedures to:
           1.  Increase the cap on an award of attorney's fees
  8    and costs in an action initiated by a state agency to
      $50,000.
  9         2.  Revise language with respect to the Uniform
      Rules of Procedure.
10         3.  Revise requirements for pleadings, motions, and
      other papers filed under the Administrative Procedure
11    Act.
           4.  Revise provisions relating to motions to
12    relinquish jurisdiction.
           5.  Redefine the term "improper purpose" for
13    determining an award of attorney's fees.
           6.  Revise provisions relating to applications for
14    licenses.

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