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House Bill 0257

House Bill hb0257c1

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    Florida House of Representatives - 2002              CS/HB 257

        By the Council for Smarter Government and Representatives
    Spratt, Ross, Bennett, Berfield, Haridopolos, Bowen, Bense,
    Alexander, Stansel, Machek, Gibson, Kendrick, Harrington,
    Brown, Dockery, Jordan, McGriff and Hogan



  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; amending s. 120.68, F.S.;

18         revising provisions relating to judicial

19         review; providing an effective date.

20

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

22

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

24  57.111, Florida Statutes, is amended to read:

25         57.111  Civil actions and administrative proceedings

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

27         (4)

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

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

30  an evidentiary hearing on the application for an award of

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

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

  2  of an administrative law judge is reviewable in accordance

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

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

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

  6  costs for the appeal.

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

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

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

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

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

12  120.54, Florida Statutes, is amended to read:

13         120.54  Rulemaking.--

14         (5)  UNIFORM RULES.--

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

16  commission pursuant to this subsection shall include, but are

17  not be limited to:

18         1.  Uniform rules for the scheduling of public

19  meetings, hearings, and workshops.

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

21  provide procedures for conducting public meetings, hearings,

22  and workshops, and for taking evidence, testimony, and

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

24  person and by means of communications media technology. The

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

26  presented shall be afforded equal consideration, regardless of

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

28  workshop is to be conducted by means of communications media

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

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

31  hearings, and workshops utilizing communications media

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  1  technology shall state how persons interested in attending may

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

  3  media technology facilities will be available. Nothing in this

  4  paragraph shall be construed to diminish the right to inspect

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

  6  public meetings, hearings, and workshops subject to the

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

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

  9  public, and any official action taken under such circumstances

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

11  meetings, hearings, and workshops, including penal and

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

13  and workshops conducted by means of communications media

14  technology, and shall be liberally construed in their

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

16  As used in this subparagraph, "communications media

17  technology" means the electronic transmission of printed

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

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

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

21  of protests and formal written protests.

22         4.  Uniform rules of procedure for the filing of

23  petitions for administrative hearings pursuant to s. 120.569

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

25  with particularity include:

26         a.  The identification of the petitioner.

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

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

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

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

31  action.

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

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

  3         e.  A statement of The ultimate facts alleged,

  4  including a statement of the specific facts the petitioner

  5  contends warrant reversal or modification of the agency's

  6  proposed action.

  7         f.  A statement of The specific rules or statutes, and

  8  to relate the alleged facts to the laws the petitioner

  9  contends require reversal or modification of the agency's

10  proposed action.

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

12  stating precisely the action petitioner wishes the agency to

13  take with respect to the proposed action.

14         5.  Uniform rules of procedure for the filing and

15  prompt disposition of petitions for declaratory statements.

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

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

18  general course of its operations.

19         7.  Uniform rules establishing procedures for granting

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

21  120.542.

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

23  120.569, Florida Statutes, is amended, and paragraph (o) is

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

25         120.569  Decisions which affect substantial

26  interests.--

27         (2)

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

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

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

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

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  1  is not represented by an attorney or qualified representative,

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

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

  4  of the signature is corrected promptly after being called to

  5  the attention of the attorney, qualified representative, or

  6  party.

  7         2.  By presenting a pleading, written motion (including

  8  a motion filed under subparagraph 4.), or other paper, whether

  9  by signing, filing, submitting, or later advocating, an

10  attorney, qualified representative, or unrepresented party is

11  certifying that, to the best of the person's knowledge,

12  information, and belief, formed after an inquiry reasonable

13  under the circumstances:

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

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

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

17  litigation;

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

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

20  warranted by existing law or by a nonfrivolous argument for

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

22  the establishment of new law;

23         c.  The allegations and other factual contentions have

24  evidentiary support or, if specifically identified, are likely

25  to have evidentiary support after a reasonable opportunity for

26  further investigation or discovery; and

27         d.  The denials of factual contentions are warranted on

28  the evidence or, if specifically identified, are reasonably

29  based on lack of information or belief.

30         3.  If, after notice and reasonable opportunity to

31  respond, the presiding officer determines that subparagraph 2.

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  1  has been violated, the presiding officer may impose an

  2  appropriate sanction against the person who signed it, the

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

  4  the other party or parties the amount of reasonable expenses

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

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

  7         a.  Monetary sanctions may not be awarded against a

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

  9         b.  Monetary sanctions may not be awarded under this

10  paragraph based on a violation of discovery rules.

11         c.  This paragraph does not authorize the award of

12  sanctions against any person who simply comments on or objects

13  to a draft permit during an authorized period for public

14  comment or at a public meeting on the draft permit.

15         4.  Sanctions under this paragraph may be initiated at

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

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

18  describe the specific conduct alleged to violate subparagraph

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

20  representative of a party or an unrepresented party against

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

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

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

24  movant unless, within 21 days after service of the motion or

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

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

27  denial is not withdrawn or appropriately corrected. A

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

29  undertaken only after entering an order describing the

30  specific conduct that appears to violate subparagraph 2. and

31  directing the attorney or qualified representative of a party

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    Florida House of Representatives - 2002              CS/HB 257

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

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

  3  officer shall describe the conduct determined to constitute a

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

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

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

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

  8  signature constitutes a certificate that the person has read

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

10  reasonable inquiry, it is not interposed for any improper

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

12  for frivolous purpose or needless increase in the cost of

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

14  violation of these requirements, the presiding officer shall

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

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

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

18  expenses incurred because of the filing of the pleading,

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

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

21  judge shall enter an initial scheduling order to facilitate

22  the just, speedy, and inexpensive determination of the

23  proceeding. The initial scheduling order shall establish a

24  discovery period, including a deadline by which all discovery

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

26  identify expert witnesses and their opinions. The initial

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

28  a joint report by a date certain.

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

30  120.57, Florida Statutes, is amended to read:

31         120.57  Additional procedures for particular cases.--

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  1         (1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS

  2  INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--

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

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

  5  party may move the administrative law judge to relinquish

  6  jurisdiction to the agency. An order relinquishing

  7  jurisdiction shall be rendered if the administrative law judge

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

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

10  interrogatories, and admissions on file, together with

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

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

13  law judge enters an order relinquishing jurisdiction, the

14  agency may promptly conduct a proceeding pursuant to

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

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

17  the administrative law judge.  An order entered by an

18  administrative law judge relinquishing jurisdiction to the

19  agency based upon a determination that no genuine dispute of

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

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

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

23  and subsection (5) of section 120.595, Florida Statutes, are

24  amended to read:

25         120.595  Attorney's fees.--

26         (1)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

27  120.57(1).--

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

29  motion, the administrative law judge shall determine whether

30  any party participated in the proceeding for an improper

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

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    Florida House of Representatives - 2002              CS/HB 257

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  1  making such determination, the administrative law judge shall

  2  consider whether the nonprevailing adverse party has

  3  participated in two or more other such proceedings involving

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

  5  party and in which such two or more proceedings the

  6  nonprevailing adverse party did not establish either the

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

  8  whether the factual or legal position asserted in the instant

  9  proceeding would have been cognizable in the previous

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

11  that the nonprevailing adverse party participated in the

12  pending proceeding for an improper purpose.

13         (e)  For the purpose of this subsection:

14         1.  "Improper purpose" means participation in a

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

16  cause unnecessary delay or for frivolous purpose or to

17  needlessly increase the cost of litigation, licensing, or

18  securing the approval of an activity.

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

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

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

22  has failed to have substantially changed the outcome of the

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

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

25  substantial modification or condition intended to resolve the

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

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

28  nonprevailing adverse party.  The recommended order shall

29  state whether the change is substantial for purposes of this

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

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

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  1  intervened in a previously existing proceeding to support the

  2  position of an agency.

  3         (5)  APPEALS.--When there is an appeal, the court in

  4  its discretion may award reasonable attorney's fees and

  5  reasonable costs to the prevailing party if the court finds

  6  that the appeal was frivolous, meritless, or an abuse of the

  7  appellate process, or that the agency action which

  8  precipitated the appeal was a gross abuse of the agency's

  9  discretion.  Upon review of agency action that precipitates an

10  appeal, if the court finds that the agency improperly rejected

11  or modified findings of fact in a recommended order, or that

12  the agency improperly rejected or modified conclusions of law

13  or interpretations of administrative rules over which it does

14  not have substantive jurisdiction, the court shall award

15  reasonable attorney's fees and reasonable costs to a

16  prevailing appellant for the administrative proceeding and the

17  appellate proceeding.

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

19  Statutes, is amended to read:

20         120.60  Licensing.--

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

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

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

24  omissions and request any additional information the agency is

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

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

27  supply additional information unless the agency timely

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

29  application shall be considered complete upon receipt of all

30  requested information and correction of any error or omission

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

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  1  for such notification has expired. Every application for a

  2  license shall be approved or denied within 90 days after

  3  receipt of a completed application unless a shorter period of

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

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

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

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

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

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

10  recommended order of approval is submitted to the agency and

11  the parties, whichever action and timeframe is latest, and

12  applicable, is deemed approved. Subject to the satisfactory

13  completion of an examination if required as a prerequisite to

14  licensure, the license shall be issued and may include such

15  reasonable conditions as are authorized by law is later. The

16  agency must approve any application for a license or for an

17  examination required for licensure if the agency has not

18  approved or denied the application within the time periods

19  prescribed by this subsection.

20         Section 7.  Subsection (9) of section 120.68, Florida

21  Statutes, is amended to read:

22         120.68  Judicial review.--

23         (9)  No petition challenging an agency rule as an

24  invalid exercise of delegated legislative authority shall be

25  instituted pursuant to this section, except to review an order

26  entered pursuant to a proceeding under s. 120.56, or an

27  emergency rule adopted pursuant to s. 120.54(4), unless the

28  sole issue presented by the petition is the constitutionality

29  of a rule and there are no disputed issues of fact.

30         Section 8.  This act shall take effect upon becoming a

31  law.

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