October 19, 2020
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House Bill 0257

House Bill hb0257e1

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                                        CS/HB 257, First Engrossed



  1                      A bill to be entitled

  2         An act relating to administrative procedures;

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

  4         limitation on an award of attorney's fees and

  5         costs in an action initiated by a state agency;

  6         amending s. 120.52, F.S.; revising sentence

  7         structure and capitalization; amending s.

  8         120.54, F.S.; revising the Uniform Rules of

  9         Procedure; amending s. 120.569, F.S.; revising

10         requirements for pleadings, motions, and other

11         papers filed under the Administrative Procedure

12         Act; providing for sanctions for noncompliance

13         with those requirements; requiring

14         administrative law judge to enter scheduling

15         orders under specified circumstances; amending

16         s. 120.57, F.S.; revising provisions relating

17         to motions to relinquish jurisdiction;

18         prohibiting agencies from granting exceptions

19         to a recommended order under specified

20         circumstances; amending s. 120.595, F.S.;

21         redefining the term "improper purpose" for

22         determining an award of attorney's fees;

23         specifying grounds for the award of attorney's

24         fees and costs of an appeal; amending s.

25         120.60, F.S.; revising provisions relating to

26         applications for licenses; amending s. 120.68,

27         F.S.; prescribing exceptions to the prohibition

28         against petitions challenging rules as an

29         invalid exercise of delegated legislative

30         authority; providing legislative intent;

31         providing an effective date.


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                                        CS/HB 257, First Engrossed



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

  2

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

  4  57.111, Florida Statutes, is amended to read:

  5         57.111  Civil actions and administrative proceedings

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

  7         (4)

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

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

10  an evidentiary hearing on the application for an award of

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

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

13  of an administrative law judge is reviewable in accordance

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

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

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

17  costs for the appeal.

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

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

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

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

22         Section 2.  Paragraph (b) of subsection (1) of section

23  120.52, Florida Statutes, is amended to read:

24         120.52  Definitions.--As used in this act:

25         (1)  "Agency" means:

26         (b)  Each:

27         1.  state State officer and state department, and each

28  departmental unit described in s. 20.04, and.

29         2.  authority Authority, including a regional water

30  supply authority,.

31         3.  board, Board.


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                                        CS/HB 257, First Engrossed



  1         4.  commission Commission, including the Commission on

  2  Ethics and the Fish and Wildlife Conservation Commission when

  3  acting pursuant to statutory authority derived from the

  4  Legislature,.

  5         5.  regional Regional planning agency,.

  6         6.  multicounty Multicounty special district with a

  7  majority of its governing board comprised of nonelected

  8  persons,.

  9         7.  educational Educational units, and.

10         8.  those entities Entity described in chapters 163,

11  373, 380, and 582 and s. 186.504.

12         Section 3.  Paragraph (b) of subsection (5) of section

13  120.54, Florida Statutes, is amended to read:

14         120.54  Rulemaking.--

15         (5)  UNIFORM RULES.--

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

17  commission pursuant to this subsection shall include, but are

18  not be limited to:

19         1.  Uniform rules for the scheduling of public

20  meetings, hearings, and workshops.

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

22  provide procedures for conducting public meetings, hearings,

23  and workshops, and for taking evidence, testimony, and

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

25  person and by means of communications media technology. The

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

27  presented shall be afforded equal consideration, regardless of

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

29  workshop is to be conducted by means of communications media

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

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


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                                        CS/HB 257, First Engrossed



  1  hearings, and workshops utilizing communications media

  2  technology shall state how persons interested in attending may

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

  4  media technology facilities will be available. Nothing in this

  5  paragraph shall be construed to diminish the right to inspect

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

  7  public meetings, hearings, and workshops subject to the

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

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

10  public, and any official action taken under such circumstances

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

12  meetings, hearings, and workshops, including penal and

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

14  and workshops conducted by means of communications media

15  technology, and shall be liberally construed in their

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

17  As used in this subparagraph, "communications media

18  technology" means the electronic transmission of printed

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

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

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

22  of protests and formal written protests.

23         4.  Uniform rules of procedure for the filing of

24  petitions for administrative hearings pursuant to s. 120.569

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

26  include:

27         a.  The identification of the petitioner.

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

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

30

31


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                                        CS/HB 257, First Engrossed



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

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

  3  action.

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

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

  6         e.  A statement of The ultimate facts alleged,

  7  including a statement of the specific facts the petitioner

  8  contends warrant reversal or modification of the agency's

  9  proposed action.

10         f.  A statement of The specific rules or statutes that

11  the petitioner contends require reversal or modification of

12  the agency's proposed action and to explain how the alleged

13  facts relate to the specific rules or statutes.

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

15  stating precisely the action petitioner wishes the agency to

16  take with respect to the proposed action.

17         5.  Uniform rules of procedure for the filing and

18  prompt disposition of petitions for declaratory statements.

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

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

21  general course of its operations.

22         7.  Uniform rules establishing procedures for granting

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

24  120.542.

25         Section 4.  Paragraph (e) of subsection (2) of section

26  120.569, Florida Statutes, is amended, and paragraph (o) is

27  added to subsection (2) of that section, to read:

28         120.569  Decisions which affect substantial

29  interests.--

30         (2)

31


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                                        CS/HB 257, First Engrossed



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

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

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

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

  5  is not represented by an attorney or qualified representative,

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

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

  8  of the signature is corrected promptly after being called to

  9  the attention of the attorney, qualified representative, or

10  party.

11         2.  By presenting a pleading, written motion, including

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

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

14  attorney, qualified representative, or unrepresented party is

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

16  information, and belief, formed after an inquiry reasonable

17  under the circumstances:

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

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

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

21  litigation;

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

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

24  warranted by existing law or by a nonfrivolous argument for

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

26  the establishment of new law;

27         c.  The allegations and other factual contentions have

28  evidentiary support or, if specifically identified, are likely

29  to have evidentiary support after a reasonable opportunity for

30  further investigation or discovery; and

31


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                                        CS/HB 257, First Engrossed



  1         d.  The denials of factual contentions are warranted on

  2  the evidence or, if specifically identified, are reasonably

  3  based on lack of information or belief.

  4

  5  Nothing in this subparagraph shall be construed to prohibit

  6  the amendment of a petition during or after discovery.

  7         3.  If, after notice and reasonable opportunity to

  8  respond, the presiding officer determines that subparagraph 2.

  9  has been violated, the presiding officer may impose an

10  appropriate sanction against the person who signed it, the

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

12  the other party or parties the amount of reasonable expenses

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

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

15         a.  Monetary sanctions may not be awarded against a

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

17         b.  Monetary sanctions may not be awarded under this

18  paragraph based on a violation of discovery rules.

19         c.  Monetary sanctions imposed shall be limited to what

20  is sufficient to deter repetition of such conduct or

21  comparable conduct by others similarly situated.

22         d.  An agency may indemnify its attorney for sanctions

23  imposed on the attorney if the conduct giving rise to the

24  sanction was taken within the scope of employment and the

25  indemnification is in the interest of the agency.

26         e.  This paragraph does not authorize the award of

27  sanctions for the submission of written comments or objections

28  during an authorized period for public comment or at a public

29  meeting, including, but not limited to, submissions of

30  comments or objections regarding draft permits.

31


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                                        CS/HB 257, First Engrossed



  1         4.  Sanctions under this paragraph may be initiated at

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

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

  4  describe the specific conduct alleged to violate subparagraph

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

  6  representative of a party or an unrepresented party against

  7  whom such sanctions are sought, but shall not be filed with or

  8  presented to the presiding officer unless, within 21 days

  9  after service of the motion, the challenged paper, claim,

10  defense, contention, allegation, or denial is not withdrawn or

11  appropriately corrected. If a party elects to oppose a motion

12  rather than withdrawing or correcting the challenged paper,

13  claim, defense, contention, allegation, or denial that party

14  shall file a copy of the motion and its written objection with

15  the presiding officer within 14 days after service of the

16  motion. After 21 days following service of the motion, the

17  moving party may file the motion if the party against whom

18  such sanctions are sought has not filed a copy of the motion

19  and its written objection with the presiding officer within 14

20  days after service of the motion or withdrawn or corrected the

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

22  denial. Upon the filing of the motion and any timely

23  opposition or response, the presiding officer shall

24  immediately rule on the matter or set the matter for hearing,

25  if the presiding officer considers a hearing warranted based

26  on the filed motion and any objection or response. A presiding

27  officer's own initiative to impose sanctions may be undertaken

28  only after entering an order describing the specific conduct

29  that appears to violate subparagraph 2. and directing the

30  attorney or qualified representative of a party or the

31  unrepresented party to show cause why subparagraph 2. has not


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                                        CS/HB 257, First Engrossed



  1  been violated. When imposing sanctions, the presiding officer

  2  shall describe the conduct determined to constitute a

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

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

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

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

  7  signature constitutes a certificate that the person has read

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

  9  reasonable inquiry, it is not interposed for any improper

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

11  for frivolous purpose or needless increase in the cost of

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

13  violation of these requirements, the presiding officer shall

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

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

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

17  expenses incurred because of the filing of the pleading,

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

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

20  judge shall enter an initial scheduling order to facilitate

21  the just, speedy, and inexpensive determination of the

22  proceeding. The initial scheduling order shall establish a

23  discovery period, including a deadline by which all discovery

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

25  identify expert witnesses and their opinions. The initial

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

27  a joint report by a date certain.

28         Section 5.  Paragraphs (i) and (k) of subsection (1) of

29  section 120.57, Florida Statutes, are amended to read:

30         120.57  Additional procedures for particular cases.--

31


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                                        CS/HB 257, First Engrossed



  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         (k)  The presiding officer shall complete and submit to

23  the agency and all parties a recommended order consisting of

24  findings of fact, conclusions of law, and recommended

25  disposition or penalty, if applicable, and any other

26  information required by law to be contained in the final

27  order. All proceedings conducted pursuant to this subsection

28  shall be de novo. The agency shall allow each party 15 days in

29  which to submit written exceptions to the recommended order.

30  An agency shall not grant an exception that does not clearly

31  identify the disputed portion of the recommended order by page


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                                        CS/HB 257, First Engrossed



  1  number and paragraph, does not identify the legal basis for

  2  the exception, or does not include appropriate and specific

  3  citations to the record.

  4         Section 6.  Paragraphs (c) and (e) of subsection (1)

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

  6  amended to read:

  7         120.595  Attorney's fees.--

  8         (1)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

  9  120.57(1).--

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

11  motion, the administrative law judge shall determine whether

12  any party participated in the proceeding for an improper

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

14  making such determination, the administrative law judge shall

15  consider whether the nonprevailing adverse party has

16  participated in two or more other such proceedings involving

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

18  party and in which such two or more proceedings the

19  nonprevailing adverse party did not establish either the

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

21  whether the factual or legal position asserted in the instant

22  proceeding would have been cognizable in the previous

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

24  that the nonprevailing adverse party participated in the

25  pending proceeding for an improper purpose.

26         (e)  For the purpose of this subsection:

27         1.  "Improper purpose" means participation in a

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

29  cause unnecessary delay or for frivolous purpose or to

30  needlessly increase the cost of litigation, licensing, or

31  securing the approval of an activity.


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                                        CS/HB 257, First Engrossed



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

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

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

  4  has failed to have substantially changed the outcome of the

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

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

  7  substantial modification or condition intended to resolve the

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

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

10  nonprevailing adverse party.  The recommended order shall

11  state whether the change is substantial for purposes of this

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

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

14  intervened in a previously existing proceeding to support the

15  position of an agency.

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

17  its discretion may award reasonable attorney's fees and

18  reasonable costs to the prevailing party if the court finds

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

20  appellate process, or that the agency action which

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

22  discretion.  Upon review of agency action that precipitates an

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

24  or modified findings of fact in a recommended order, the court

25  shall award reasonable attorney's fees and reasonable costs to

26  a prevailing appellant for the administrative proceeding and

27  the appellate proceeding. If the court finds that the agency

28  improperly rejected or modified a conclusion of law or an

29  interpretation of an administrative rule over which it does

30  not have substantive jurisdiction, the court may award

31


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                                        CS/HB 257, First Engrossed



  1  reasonable attorney's fees and reasonable costs of the appeal

  2  to the prevailing appellant.

  3         Section 7.  Subsection (1) of section 120.60, Florida

  4  Statutes, is amended to read:

  5         120.60  Licensing.--

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

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

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

  9  omissions and request any additional information the agency is

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

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

12  supply additional information unless the agency timely

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

14  application shall be considered complete upon receipt of all

15  requested information and correction of any error or omission

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

17  for such notification has expired. Every application for a

18  license shall be approved or denied within 90 days after

19  receipt of a completed application unless a shorter period of

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

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

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

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

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

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

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

27  whichever action and timeframe is latest and applicable, is

28  considered approved unless the recommended order recommends

29  that the agency deny the license. Subject to the satisfactory

30  completion of an examination if required as a prerequisite to

31  licensure, any license that is considered approved shall be


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                                        CS/HB 257, First Engrossed



  1  issued and may include such reasonable conditions as are

  2  authorized by law later. The agency must approve any

  3  application for a license or for an examination required for

  4  licensure if the agency has not approved or denied the

  5  application within the time periods prescribed by this

  6  subsection.

  7         Section 8.  Subsection (9) of section 120.68, Florida

  8  Statutes, is amended to read:

  9         120.68  Judicial review.--

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

11  invalid exercise of delegated legislative authority shall be

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

13  entered pursuant to a proceeding under s. 120.56 or an

14  agency's findings of immediate danger, necessity, and

15  procedural fairness prerequisite to the adoption of an

16  emergency rule pursuant to s. 120.54(4), unless the sole issue

17  presented by the petition is the constitutionality of a rule

18  and there are no disputed issues of fact.

19         Section 9.  It is the intent of the Legislature that

20  this act shall not affect the outcome of litigation styled

21  Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. 4th DCA

22  2001).

23         Section 10.  This act shall take effect upon becoming a

24  law.

25

26

27

28

29

30

31


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