October 19, 2020
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House Bill 0257

House Bill hb0257e2

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                                       CS/HB 257, Second Engrossed



  1                      A bill to be entitled

  2         An act relating to administrative procedures;

  3         amending s. 57.111, F.S.; amending s. 120.52,

  4         F.S.; revising sentence structure and

  5         capitalization; amending s. 120.54, F.S.;

  6         revising the Uniform Rules of Procedure;

  7         amending s. 120.569, F.S.; revising

  8         requirements for pleadings, motions, and other

  9         papers filed under the Administrative Procedure

10         Act; providing for sanctions for noncompliance

11         with those requirements; requiring

12         administrative law judge to enter scheduling

13         orders under specified circumstances; amending

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

15         to motions to relinquish jurisdiction;

16         prohibiting agencies from granting exceptions

17         to a recommended order under specified

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

19         redefining the term "improper purpose" for

20         determining an award of attorney's fees;

21         specifying grounds for the award of attorney's

22         fees and costs of an appeal; amending s.

23         120.60, F.S.; revising provisions relating to

24         applications for licenses; amending s. 120.68,

25         F.S.; prescribing exceptions to the prohibition

26         against petitions challenging rules as an

27         invalid exercise of delegated legislative

28         authority; providing legislative intent;

29         providing an effective date.

30

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


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                                       CS/HB 257, Second Engrossed



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

  2  120.52, Florida Statutes, is amended to read:

  3         120.52  Definitions.--As used in this act:

  4         (1)  "Agency" means:

  5         (b)  Each:

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

  7  departmental unit described in s. 20.04, and.

  8         2.  authority Authority, including a regional water

  9  supply authority,.

10         3.  board, Board.

11         4.  commission Commission, including the Commission on

12  Ethics and the Fish and Wildlife Conservation Commission when

13  acting pursuant to statutory authority derived from the

14  Legislature,.

15         5.  regional Regional planning agency,.

16         6.  multicounty Multicounty special district with a

17  majority of its governing board comprised of nonelected

18  persons,.

19         7.  educational Educational units, and.

20         8.  those entities Entity described in chapters 163,

21  373, 380, and 582 and s. 186.504.

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

23  120.54, Florida Statutes, is amended to read:

24         120.54  Rulemaking.--

25         (5)  UNIFORM RULES.--

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

27  commission pursuant to this subsection shall include, but are

28  not be limited to:

29         1.  Uniform rules for the scheduling of public

30  meetings, hearings, and workshops.

31


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                                       CS/HB 257, Second Engrossed



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

  2  provide procedures for conducting public meetings, hearings,

  3  and workshops, and for taking evidence, testimony, and

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

  5  person and by means of communications media technology. The

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

  7  presented shall be afforded equal consideration, regardless of

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

  9  workshop is to be conducted by means of communications media

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

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

12  hearings, and workshops utilizing communications media

13  technology shall state how persons interested in attending may

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

15  media technology facilities will be available. Nothing in this

16  paragraph shall be construed to diminish the right to inspect

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

18  public meetings, hearings, and workshops subject to the

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

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

21  public, and any official action taken under such circumstances

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

23  meetings, hearings, and workshops, including penal and

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

25  and workshops conducted by means of communications media

26  technology, and shall be liberally construed in their

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

28  As used in this subparagraph, "communications media

29  technology" means the electronic transmission of printed

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

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


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                                       CS/HB 257, Second Engrossed



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

  2  of protests and formal written protests.

  3         4.  Uniform rules of procedure for the filing of

  4  petitions for administrative hearings pursuant to s. 120.569

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

  6  include:

  7         a.  The identification of the petitioner.

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

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

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

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

12  action.

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

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

15         e.  A statement of The ultimate facts alleged,

16  including a statement of the specific facts the petitioner

17  contends warrant reversal or modification of the agency's

18  proposed action.

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

20  the petitioner contends require reversal or modification of

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

22  facts relate to the specific rules or statutes.

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

24  stating precisely the action petitioner wishes the agency to

25  take with respect to the proposed action.

26         5.  Uniform rules of procedure for the filing and

27  prompt disposition of petitions for declaratory statements.

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

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

30  general course of its operations.

31


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                                       CS/HB 257, Second Engrossed



  1         7.  Uniform rules establishing procedures for granting

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

  3  120.542.

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

  5  120.569, Florida Statutes, is amended, and paragraph (o) is

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

  7         120.569  Decisions which affect substantial

  8  interests.--

  9         (2)

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

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

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

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

14  is not represented by an attorney or qualified representative,

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

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

17  of the signature is corrected promptly after being called to

18  the attention of the attorney, qualified representative, or

19  party.

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

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

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

23  attorney, qualified representative, or unrepresented party is

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

25  information, and belief, formed after an inquiry reasonable

26  under the circumstances:

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

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

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

30  litigation;

31


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                                       CS/HB 257, Second Engrossed



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

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

  3  warranted by existing law or by a nonfrivolous argument for

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

  5  the establishment of new law;

  6         c.  The allegations and other factual contentions have

  7  evidentiary support or, if specifically identified, are likely

  8  to have evidentiary support after a reasonable opportunity for

  9  further investigation or discovery; and

10         d.  The denials of factual contentions are warranted on

11  the evidence or, if specifically identified, are reasonably

12  based on lack of information or belief.

13

14  Nothing in this subparagraph shall be construed to prohibit

15  the amendment of a petition during or after discovery.

16         3.  If, after notice and reasonable opportunity to

17  respond, the presiding officer determines that subparagraph 2.

18  has been violated, the presiding officer may impose an

19  appropriate sanction against the person who signed it, the

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

21  the other party or parties the amount of reasonable expenses

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

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

24         a.  Monetary sanctions may not be awarded against a

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

26         b.  Monetary sanctions may not be awarded under this

27  paragraph based on a violation of discovery rules.

28         c.  Monetary sanctions imposed shall be limited to what

29  is sufficient to deter repetition of such conduct or

30  comparable conduct by others similarly situated.

31


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                                       CS/HB 257, Second Engrossed



  1         d.  An agency may indemnify its attorney for sanctions

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

  3  sanction was taken within the scope of employment and the

  4  indemnification is in the interest of the agency.

  5         e.  This paragraph does not authorize the award of

  6  sanctions for the submission of written comments or objections

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

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

  9  comments or objections regarding draft permits.

10         4.  Sanctions under this paragraph may be initiated at

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

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

13  describe the specific conduct alleged to violate subparagraph

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

15  representative of a party or an unrepresented party against

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

17  presented to the presiding officer unless, within 21 days

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

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

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

21  rather than withdrawing or correcting the challenged paper,

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

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

24  the presiding officer within 14 days after service of the

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

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

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

28  and its written objection with the presiding officer within 14

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

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

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


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                                       CS/HB 257, Second Engrossed



  1  opposition or response, the presiding officer shall

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

  3  if the presiding officer considers a hearing warranted based

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

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

  6  only after entering an order describing the specific conduct

  7  that appears to violate subparagraph 2. and directing the

  8  attorney or qualified representative of a party or the

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

10  been violated. When imposing sanctions, the presiding officer

11  shall describe the conduct determined to constitute a

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

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

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

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

16  signature constitutes a certificate that the person has read

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

18  reasonable inquiry, it is not interposed for any improper

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

20  for frivolous purpose or needless increase in the cost of

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

22  violation of these requirements, the presiding officer shall

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

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

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

26  expenses incurred because of the filing of the pleading,

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

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

29  judge shall enter an initial scheduling order to facilitate

30  the just, speedy, and inexpensive determination of the

31  proceeding. The initial scheduling order shall establish a


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                                       CS/HB 257, Second Engrossed



  1  discovery period, including a deadline by which all discovery

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

  3  identify expert witnesses and their opinions. The initial

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

  5  a joint report by a date certain.

  6         Section 4.  Paragraphs (i) and (k) of subsection (1) of

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

  8         120.57  Additional procedures for particular cases.--

  9         (1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS

10  INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--

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

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

13  party may move the administrative law judge to relinquish

14  jurisdiction to the agency. An order relinquishing

15  jurisdiction shall be rendered if the administrative law judge

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

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

18  interrogatories, and admissions on file, together with

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

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

21  law judge enters an order relinquishing jurisdiction, the

22  agency may promptly conduct a proceeding pursuant to

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

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

25  the administrative law judge.  An order entered by an

26  administrative law judge relinquishing jurisdiction to the

27  agency based upon a determination that no genuine dispute of

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

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

30         (k)  The presiding officer shall complete and submit to

31  the agency and all parties a recommended order consisting of


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                                       CS/HB 257, Second Engrossed



  1  findings of fact, conclusions of law, and recommended

  2  disposition or penalty, if applicable, and any other

  3  information required by law to be contained in the final

  4  order. All proceedings conducted pursuant to this subsection

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

  6  which to submit written exceptions to the recommended order.

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

  8  identify the disputed portion of the recommended order by page

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

10  the exception, or does not include appropriate and specific

11  citations to the record.

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

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

14  amended to read:

15         120.595  Attorney's fees.--

16         (1)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

17  120.57(1).--

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

19  motion, the administrative law judge shall determine whether

20  any party participated in the proceeding for an improper

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

22  making such determination, the administrative law judge shall

23  consider whether the nonprevailing adverse party has

24  participated in two or more other such proceedings involving

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

26  party and in which such two or more proceedings the

27  nonprevailing adverse party did not establish either the

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

29  whether the factual or legal position asserted in the instant

30  proceeding would have been cognizable in the previous

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


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                                       CS/HB 257, Second Engrossed



  1  that the nonprevailing adverse party participated in the

  2  pending proceeding for an improper purpose.

  3         (e)  For the purpose of this subsection:

  4         1.  "Improper purpose" means participation in a

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

  6  cause unnecessary delay or for frivolous purpose or to

  7  needlessly increase the cost of litigation, licensing, or

  8  securing the approval of an activity.

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

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

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

12  has failed to have substantially changed the outcome of the

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

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

15  substantial modification or condition intended to resolve the

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

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

18  nonprevailing adverse party.  The recommended order shall

19  state whether the change is substantial for purposes of this

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

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

22  intervened in a previously existing proceeding to support the

23  position of an agency.

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

25  its discretion may award reasonable attorney's fees and

26  reasonable costs to the prevailing party if the court finds

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

28  appellate process, or that the agency action which

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

30  discretion.  Upon review of agency action that precipitates an

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


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                                       CS/HB 257, Second Engrossed



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

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

  3  a prevailing appellant for the administrative proceeding and

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

  5  improperly rejected or modified a conclusion of law or an

  6  interpretation of an administrative rule over which it does

  7  not have substantive jurisdiction, the court may award

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

  9  to the prevailing appellant.

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

11  Statutes, is amended to read:

12         120.60  Licensing.--

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

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

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

16  omissions and request any additional information the agency is

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

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

19  supply additional information unless the agency timely

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

21  application shall be considered complete upon receipt of all

22  requested information and correction of any error or omission

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

24  for such notification has expired. Every application for a

25  license shall be approved or denied within 90 days after

26  receipt of a completed application unless a shorter period of

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

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

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

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

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


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                                       CS/HB 257, Second Engrossed



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

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

  3  whichever action and timeframe is latest and applicable, is

  4  considered approved unless the recommended order recommends

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

  6  completion of an examination if required as a prerequisite to

  7  licensure, any license that is considered approved shall be

  8  issued and may include such reasonable conditions as are

  9  authorized by law later. The agency must approve any

10  application for a license or for an examination required for

11  licensure if the agency has not approved or denied the

12  application within the time periods prescribed by this

13  subsection.

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

15  Statutes, is amended to read:

16         120.68  Judicial review.--

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

18  invalid exercise of delegated legislative authority shall be

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

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

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

22  procedural fairness prerequisite to the adoption of an

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

24  presented by the petition is the constitutionality of a rule

25  and there are no disputed issues of fact.

26         Section 8.  It is the intent of the Legislature that

27  this act shall not affect the outcome of litigation styled

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

29  2001).

30         Section 9.  This act shall take effect upon becoming a

31  law.


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