May 31, 2020
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Senate Bill 1970

Senate Bill sb1970e1

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    CS for SB 1970                                 First Engrossed



  1                      A bill to be entitled

  2         An act relating to exemptions from the

  3         requirements of ch. 120, F.S.; amending s.

  4         120.569, F.S.; requiring that the state provide

  5         prior notice if it intends to offer certain

  6         evidence in an administrative hearing;

  7         providing procedures for administrative

  8         hearings involving allegations of sexual

  9         misconduct by a licensed professional; amending

10         s. 120.57, F.S., relating to hearings involving

11         disputed issues of material fact; eliminating

12         certain procedures when the state offers

13         evidence involving past acts or evidence to

14         prove bad character or propensity; conforming

15         cross-references; amending s. 120.80, F.S.;

16         exempting judges of compensation claims from

17         the requirements for notice and a hearing under

18         ss. 120.569 and 120.57, F.S., when adjudicating

19         workers' compensation claims; providing that

20         judges of compensation claims are subject to

21         the rulemaking procedures of ch. 120, F.S.;

22         providing for the Office of Appeal Hearings

23         within the Department of Children and Family

24         Services rather than an administrative law

25         judge to conduct certain hearings concerning

26         the benefits provided under state public

27         assistance programs; requiring that such

28         hearings comply with certain rules of

29         procedure; deleting a requirement that

30         appellate jurisdiction for the Florida Public

31         Service Commission conform to the


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    CS for SB 1970                                 First Engrossed



 1         Telecommunications Act of 1996; removing the

 2         exemption from ch. 120, F.S., provided for

 3         disqualification reviews of certified nurse

 4         assistant programs; requiring that a formal

 5         hearing be conducted by a hearing officer;

 6         eliminating the authority of the Department of

 7         Health to contract with the Department of

 8         Children and Family Services for hearing

 9         officers to conduct hearings on matters

10         involving certain federal programs administered

11         by the Department of Health; amending s.

12         120.81, F.S.; authorizing the Parole Commission

13         to require that a prisoner submit written

14         statements concerning intended action by the

15         commission rather than be publicly heard;

16         eliminating certain requirements for testimony

17         and evidence in an administrative hearing

18         involving the allegation of sexual misconduct

19         by a licensed professional; amending ss.

20         120.56, 120.65, 388.4111, 403.788, 403.9415,

21         and 627.0612, F.S., relating to challenges to

22         rules, administrative law judges, public lands,

23         final orders, disposition of applications, and

24         rating determinations; conforming

25         cross-references; amending s. 163.3177, F.S.;

26         deleting provisions exempting from review under

27         ch. 120, F.S., rules adopted by the state land

28         planning agency establishing criteria for

29         reviewing local comprehensive plans; deleting a

30         requirement that such rules be reviewed by the

31         Legislature; deleting obsolete provisions;


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 1         amending s. 186.508, F.S.; revising the

 2         exemption for certain rules adopted by a

 3         regional planning council from rule challenge

 4         or drawout proceedings under ch. 120, F.S.;

 5         amending s. 370.26, F.S.; deleting a provision

 6         requiring the Department of Environmental

 7         Protection to develop a process for

 8         consolidating certain aquaculture permits;

 9         amending s. 373.421, F.S.; clarifying

10         provisions relating to final agency action with

11         respect to wetlands delineation; amending s.

12         380.06, F.S.; deleting provisions exempting

13         from review under ch. 120, F.S., certain rules

14         adopted by the state land planning agency

15         authorizing the assessment and collection of

16         fees; amending s. 393.0661, F.S.; deleting the

17         authority of the Agency for Health Care

18         Administration to adopt rules under certain

19         circumstances governing fees, reimbursement

20         rates, lengths of stay, number of visits,

21         number of services, or enrollment limits for

22         the home and community-based services delivery

23         system of the Agency for Persons with

24         Disabilities; amending s. 393.125, F.S.;

25         requiring that the Agency for Persons with

26         Disabilities adopt rules establishing

27         guidelines for administrative hearings;

28         requiring that the rules ensure that the due

29         process rights of the clients of the agency are

30         consistent with Medicaid law; authorizing

31         witnesses to appear on behalf of a party by


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 1         telephone or video teleconference; deleting

 2         provisions authorizing certain administrative

 3         hearings under ch. 120, F.S.; requiring the

 4         agency to adopt certain procedures governing

 5         client services provided by service providers;

 6         amending s. 408.039, F.S.; deleting provisions

 7         requiring that the court, under certain

 8         circumstances, affirm a final order by the

 9         Agency for Health Care Administration when

10         reviewing a disputed decision involving a

11         certificate of need; amending s. 409.285, F.S.;

12         clarifying that a final administrative decision

13         regarding a public assistance program is issued

14         in the name of the state agency that

15         administers the program; defining the term

16         "public assistance"; amending s. 440.021, F.S.,

17         relating to enforcement activities of the

18         Division of Workers' Compensation in the

19         Department of Financial Services; eliminating

20         obsolete provisions with respect to

21         communications resulting from investigations by

22         the department; eliminating obsolete provisions

23         relating to interest and penalty assessments;

24         amending s. 456.073, F.S.; providing that the

25         proceedings of a probable cause panel of a

26         board within the Department of Health which

27         meets to reconsider the original finding of

28         probable cause is subject to public-meetings

29         requirements; amending s. 458.345, F.S.;

30         clarifying provisions that subject resident

31         physicians, assistant resident physicians,


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    CS for SB 1970                                 First Engrossed



 1         house physicians, interns, and fellows in

 2         fellowship training to discipline by the Board

 3         of Medicine; amending s. 459.021, F.S.;

 4         clarifying provisions that subject resident

 5         physicians, assistant resident physicians,

 6         house physicians, interns, and fellows in

 7         fellowship training to discipline by the Board

 8         of Osteopathic Medicine; amending s. 497.153,

 9         F.S., relating to the regulation of funeral,

10         cemetery, and consumer services by the

11         Department of Financial Services; deleting

12         provisions exempting certain decisions by the

13         department concerning investigations and

14         disciplinary matters from review under ch. 120,

15         F.S.; amending s. 538.11, F.S., relating to

16         recordkeeping requirements for secondhand

17         dealers and secondary metals recyclers;

18         deleting obsolete provisions providing for the

19         adoption of emergency rules; amending s.

20         548.07, F.S., relating to the regulation of

21         pugilistic exhibitions by the Florida State

22         Boxing Commission; clarifying duties of the

23         commission with respect to the protection of

24         the public; repealing s. 548.073, F.S.,

25         relating to authorization for the commission to

26         conduct hearings; amending s. 1002.33, F.S.;

27         requiring that the decision by the State Board

28         of Education directing a district school board

29         to approve or deny an application for a charter

30         school include written findings of fact;

31         amending s. 1002.335, F.S.; requiring that the


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    CS for SB 1970                                 First Engrossed



 1         decision by the State Board of Education to

 2         grant a district school board exclusive

 3         authority to authorize charter schools within

 4         the school district include written findings of

 5         fact; requiring that a decision by the Florida

 6         Schools of Excellence Commission to deny an

 7         application for a charter school or revoke

 8         approval of a cosponsor of a charter school

 9         include written findings of fact; amending s.

10         1002.34, F.S.; requiring that the decision by

11         the State Board of Education to approve or deny

12         an application for a charter technical career

13         center include written findings of fact;

14         providing an effective date.

15  

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

17  

18         Section 1.  Paragraph (g) of subsection (2) of section

19  120.569, Florida Statutes, is amended to read:

20         120.569  Decisions which affect substantial

21  interests.--

22         (2)

23         (g)1.  Irrelevant, immaterial, or unduly repetitious

24  evidence shall be excluded, but all other evidence of a type

25  commonly relied upon by reasonably prudent persons in the

26  conduct of their affairs shall be admissible, whether or not

27  such evidence would be admissible in a trial in the courts of

28  Florida. Any part of the evidence may be received in written

29  form, and all testimony of parties and witnesses shall be made

30  under oath.

31  


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 1         2.  Notwithstanding subparagraph 1., similar fact

 2  evidence of other violations, wrongs, or acts is admissible

 3  when relevant to prove a material fact in issue, such as proof

 4  of motive, opportunity, intent, preparation, plan, knowledge,

 5  identity, or absence of mistake or accident, but it is

 6  inadmissible when the evidence is relevant solely to prove bad

 7  character or propensity. When, in an administrative

 8  proceeding, the state intends to offer evidence of other acts

 9  or offenses under this subparagraph, the state shall furnish

10  to the party whose substantial interests are being determined

11  and whose other acts or offenses will be the subject of such

12  evidence, not less than 10 days before commencement of the

13  proceeding, a written statement of the acts or offenses it

14  intends to offer which describes them and the evidence the

15  state intends to offer with particularity. Notice is not

16  required for evidence of acts or offenses which is used for

17  impeachment or on rebuttal.

18         3.  Notwithstanding subparagraph 1., in a proceeding

19  against a licensed professional or in a proceeding for

20  licensure of an applicant for professional licensure which

21  involves allegations of sexual misconduct:

22         a.  The testimony of the victim of the sexual

23  misconduct need not be corroborated.

24         b.  Specific instances of prior consensual sexual

25  activity between the victim of the sexual misconduct and any

26  person other than the offender is inadmissible, unless:

27         (I)  It is first established to the administrative law

28  judge in a proceeding in camera that the victim of the sexual

29  misconduct is mistaken as to the identity of the perpetrator

30  of the sexual misconduct; or

31  


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    CS for SB 1970                                 First Engrossed



 1         (II)  If consent by the victim of the sexual misconduct

 2  is at issue and it is first established to the administrative

 3  law judge in a proceeding in camera that such evidence tends

 4  to establish a pattern of conduct or behavior on the part of

 5  such victim which is so similar to the conduct or behavior in

 6  the case that it is relevant to the issue of consent.

 7         c.  Reputation evidence relating to the prior sexual

 8  conduct of a victim of sexual misconduct is inadmissible.

 9         Section 2.  Present paragraphs (e) through (n) of

10  subsection (1) of section 120.57, Florida Statutes, are

11  redesignated as paragraphs (d) through (m), respectively, and

12  present paragraphs (d) and (e) of that subsection are amended,

13  to read:

14         120.57  Additional procedures for particular cases.--

15         (1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS

16  INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--

17         (d)  Notwithstanding s. 120.569(2)(g), similar fact

18  evidence of other violations, wrongs, or acts is admissible

19  when relevant to prove a material fact in issue, such as proof

20  of motive, opportunity, intent, preparation, plan, knowledge,

21  identity, or absence of mistake or accident, but it is

22  inadmissible when the evidence is relevant solely to prove bad

23  character or propensity. When the state in an administrative

24  proceeding intends to offer evidence of other acts or offenses

25  under this paragraph, the state shall furnish to the party

26  whose substantial interests are being determined and whose

27  other acts or offenses will be the subject of such evidence,

28  no fewer than 10 days before commencement of the proceeding, a

29  written statement of the acts or offenses it intends to offer,

30  describing them and the evidence the state intends to offer

31  


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    CS for SB 1970                                 First Engrossed



 1  with particularity. Notice is not required for evidence of

 2  acts or offenses which is used for impeachment or on rebuttal.

 3         (d)(e)1.  Any agency action that determines the

 4  substantial interests of a party and that is based on an

 5  unadopted rule is subject to de novo review by an

 6  administrative law judge.

 7         2.  The agency action shall not be presumed valid or

 8  invalid.  The agency must demonstrate that the unadopted rule:

 9         a.  Is within the powers, functions, and duties

10  delegated by the Legislature or, if the agency is operating

11  pursuant to authority derived from the State Constitution, is

12  within that authority;

13         b.  Does not enlarge, modify, or contravene the

14  specific provisions of law implemented;

15         c.  Is not vague, establishes adequate standards for

16  agency decisions, or does not vest unbridled discretion in the

17  agency;

18         d.  Is not arbitrary or capricious. A rule is arbitrary

19  if it is not supported by logic or the necessary facts; a rule

20  is capricious if it is adopted without thought or reason or is

21  irrational;

22         e.  Is not being applied to the substantially affected

23  party without due notice; and

24         f.  Does not impose excessive regulatory costs on the

25  regulated person, county, or city.

26         3.  The recommended and final orders in any proceeding

27  shall be governed by the provisions of paragraphs (j) (k) and

28  (k) (l), except that the administrative law judge's

29  determination regarding the unadopted rule shall not be

30  rejected by the agency unless the agency first determines from

31  a review of the complete record, and states with particularity


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    CS for SB 1970                                 First Engrossed



 1  in the order, that such determination is clearly erroneous or

 2  does not comply with essential requirements of law.  In any

 3  proceeding for review under s. 120.68, if the court finds that

 4  the agency's rejection of the determination regarding the

 5  unadopted rule does not comport with the provisions of this

 6  subparagraph, the agency action shall be set aside and the

 7  court shall award to the prevailing party the reasonable costs

 8  and a reasonable attorney's fee for the initial proceeding and

 9  the proceeding for review.

10         Section 3.  Paragraph (b) of subsection (1) and

11  subsections (7), (13), and (15) of section 120.80, Florida

12  Statutes, are amended to read:

13         120.80  Exceptions and special requirements;

14  agencies.--

15         (1)  DIVISION OF ADMINISTRATIVE HEARINGS.--

16         (b)  Workers' compensation.--Notwithstanding s.

17  120.52(1), A judge of compensation claims is exempt from the

18  requirements for notice and a hearing under ss. 120.569 and

19  120.57 when, in adjudicating matters under chapter 440, but is

20  subject to the rulemaking procedures in is not an agency or

21  part of an agency for purposes of this chapter.

22         (7)  DEPARTMENT OF CHILDREN AND FAMILY

23  SERVICES.--Section 120.57(1) notwithstanding, hearings

24  required by ss. 120.569 and 120.57 concerning the denial,

25  reduction, suspension, or termination of benefits under a

26  public assistance program, as defined in s. 409.285, need not

27  be conducted by an administrative law judge assigned by the

28  division unless required otherwise by a specific law. The

29  Office of Appeal Hearings within the Department of Children

30  and Family Services may provide the hearings required by ss.

31  120.569 and 120.57 for all public assistance programs,


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 1  regardless of which state agency administers the program, if

 2  the public assistance program is administered by the

 3  department or the department has a formal interagency

 4  agreement with the state agency that administers the program

 5  to conduct the hearings. Hearings conducted under this

 6  subsection must comply with the requirements of ss. 120.569

 7  and 120.57 and the uniform rules of procedure, except to the

 8  extent that the department has adopted rules pursuant to s.

 9  409.28 and has been granted exceptions to the uniform rules of

10  procedure as provided in s. 120.54. Notwithstanding s.

11  120.57(1)(a), hearings conducted within the Department of

12  Children and Family Services in the execution of those social

13  and economic programs administered by the former Division of

14  Family Services of the former Department of Health and

15  Rehabilitative Services prior to the reorganization effected

16  by chapter 75-48, Laws of Florida, need not be conducted by an

17  administrative law judge assigned by the division.

18         (13)  FLORIDA PUBLIC SERVICE COMMISSION.--

19         (a)  Agency statements that relate to cost-recovery

20  clauses, factors, or mechanisms implemented pursuant to

21  chapter 366, relating to public utilities, are exempt from the

22  provisions of s. 120.54(1)(a).

23         (b)  Notwithstanding ss. 120.569 and 120.57, a hearing

24  on an objection to proposed action of the Florida Public

25  Service Commission may only address the issues in dispute.

26  Issues in the proposed action which are not in dispute are

27  deemed stipulated.

28         (c)  The Florida Public Service Commission is exempt

29  from the time limitations in s. 120.60(1) when issuing a

30  license.

31  


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 1         (d)  Notwithstanding the provisions of this chapter, in

 2  implementing the Telecommunications Act of 1996, Pub. L. No.

 3  104-104, the Public Service Commission is authorized to employ

 4  procedures consistent with that act.

 5         (e)  Notwithstanding the provisions of this chapter, s.

 6  350.128, or s. 364.381, appellate jurisdiction for Public

 7  Service Commission decisions that implement the

 8  Telecommunications Act of 1996, Pub. L. No. 104-104, shall be

 9  consistent with the provisions of that act.

10         (e)(f)  Notwithstanding any provision of this chapter,

11  all public utilities and companies regulated by the Public

12  Service Commission shall be entitled to proceed under the

13  interim rate provisions of chapter 364 or the procedures for

14  interim rates contained in chapter 74-195, Laws of Florida, or

15  as otherwise provided by law.

16         (15)  DEPARTMENT OF HEALTH.--Notwithstanding s.

17  120.57(1)(a), formal hearings may not be conducted by the

18  Secretary of Health, the Secretary of Health Care

19  Administration, or a board or member of a board within the

20  Department of Health or the Agency for Health Care

21  Administration for matters relating to the regulation of

22  professions, as defined by chapter 456. Notwithstanding s.

23  120.57(1)(a), hearings conducted within the Department of

24  Health in execution of the Special Supplemental Nutrition

25  Program for Women, Infants, and Children; Child Care Food

26  Program; Children's Medical Services Program; and the Brain

27  and Spinal Cord Injury Program; and the exemption from

28  disqualification reviews for certified nurse assistants

29  program need not be conducted by an administrative law judge

30  assigned by the division. The Department of Health may

31  


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 1  contract with the Department of Children and Family Services

 2  for a hearing officer in these matters.

 3         Section 4.  Subsection (3) of section 120.81, Florida

 4  Statutes, is amended, present subsections (5) and (6) of that

 5  section are redesignated as subsections (4) and (5),

 6  respectively, and present subsection (4) of that section is

 7  amended, to read:

 8         120.81  Exceptions and special requirements; general

 9  areas.--

10         (3)  PRISONERS AND PAROLEES.--

11         (a)  Notwithstanding s. 120.52(12), prisoners, as

12  defined by s. 944.02, shall not be considered parties in any

13  proceedings other than those under s. 120.54(3)(c) or (7), and

14  may not seek judicial review under s. 120.68 of any other

15  agency action. Prisoners are not eligible to seek an

16  administrative determination of an agency statement under s.

17  120.56(4). Parolees shall not be considered parties for

18  purposes of agency action or judicial review when the

19  proceedings relate to the rescission or revocation of parole.

20         (b)  Notwithstanding s. 120.54(3)(c), prisoners, as

21  defined by s. 944.02, may be limited by the Department of

22  Corrections or the Parole Commission to an opportunity to

23  present evidence and argument on issues under consideration by

24  submission of written statements concerning intended action on

25  any department or commission rule.

26         (c)  Notwithstanding ss. 120.569 and 120.57, in a

27  preliminary hearing for revocation of parole, no less than 7

28  days' notice of hearing shall be given.

29         (4)  REGULATION OF PROFESSIONS.--Notwithstanding s.

30  120.569(2)(g), in a proceeding against a licensed professional

31  or in a proceeding for licensure of an applicant for


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 1  professional licensure which involves allegations of sexual

 2  misconduct:

 3         (a)  The testimony of the victim of the sexual

 4  misconduct need not be corroborated.

 5         (b)  Specific instances of prior consensual sexual

 6  activity between the victim of the sexual misconduct and any

 7  person other than the offender is inadmissible, unless:

 8         1.  It is first established to the administrative law

 9  judge in a proceeding in camera that the victim of the sexual

10  misconduct is mistaken as to the identity of the perpetrator

11  of the sexual misconduct; or

12         2.  If consent by the victim of the sexual misconduct

13  is at issue and it is first established to the administrative

14  law judge in a proceeding in camera that such evidence tends

15  to establish a pattern of conduct or behavior on the part of

16  such victim which is so similar to the conduct or behavior in

17  the case that it is relevant to the issue of consent.

18         (c)  Reputation evidence relating to the prior sexual

19  conduct of a victim of sexual misconduct is inadmissible.

20         Section 5.  Paragraphs (e) and (f) of subsection (4) of

21  section 120.56, Florida Statutes, are amended to read:

22         120.56  Challenges to rules.--

23         (4)  CHALLENGING AGENCY STATEMENTS DEFINED AS RULES;

24  SPECIAL PROVISIONS.--

25         (e)1.  If, prior to a final hearing to determine

26  whether all or part of any agency statement violates s.

27  120.54(1)(a), an agency publishes, pursuant to s.

28  120.54(3)(a), proposed rules that address the statement, then

29  for purposes of this section, a presumption is created that

30  the agency is acting expeditiously and in good faith to adopt

31  rules that address the statement, and the agency shall be


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 1  permitted to rely upon the statement or a substantially

 2  similar statement as a basis for agency action if the

 3  statement meets the requirements of s. 120.57(1)(d) s.

 4  120.57(1)(e).

 5         2.  If, prior to the final hearing to determine whether

 6  all or part of an agency statement violates s. 120.54(1)(a),

 7  an agency publishes a notice of rule development which

 8  addresses the statement pursuant to s. 120.54(2), or certifies

 9  that such a notice has been transmitted to the Florida

10  Administrative Weekly for publication, then such publication

11  shall constitute good cause for the granting of a stay of the

12  proceedings and a continuance of the final hearing for 30

13  days. If the agency publishes proposed rules within this

14  30-day period or any extension of that period granted by an

15  administrative law judge upon showing of good cause, then the

16  administrative law judge shall place the case in abeyance

17  pending the outcome of rulemaking and any proceedings

18  involving challenges to proposed rules pursuant to subsection

19  (2).

20         3.  If, following the commencement of the final hearing

21  and prior to entry of a final order that all or part of an

22  agency statement violates s. 120.54(1)(a), an agency

23  publishes, pursuant to s. 120.54(3)(a), proposed rules that

24  address the statement and proceeds expeditiously and in good

25  faith to adopt rules that address the statement, the agency

26  shall be permitted to rely upon the statement or a

27  substantially similar statement as a basis for agency action

28  if the statement meets the requirements of s. 120.57(1)(d) s.

29  120.57(1)(e).

30         4.  If an agency fails to adopt rules that address the

31  statement within 180 days after publishing proposed rules, for


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    CS for SB 1970                                 First Engrossed



 1  purposes of this subsection, a presumption is created that the

 2  agency is not acting expeditiously and in good faith to adopt

 3  rules. If the agency's proposed rules are challenged pursuant

 4  to subsection (2), the 180-day period for adoption of rules is

 5  tolled until a final order is entered in that proceeding.

 6         5.  If the proposed rules addressing the challenged

 7  statement are determined to be an invalid exercise of

 8  delegated legislative authority as defined in s.

 9  120.52(8)(b)-(f), the agency must immediately discontinue

10  reliance on the statement and any substantially similar

11  statement until the rules addressing the subject are properly

12  adopted.

13         (f)  All proceedings to determine a violation of s.

14  120.54(1)(a) shall be brought pursuant to this subsection. A

15  proceeding pursuant to this subsection may be consolidated

16  with a proceeding under any other section of this chapter.

17  Nothing in this paragraph shall be construed to prevent a

18  party whose substantial interests have been determined by an

19  agency action from bringing a proceeding pursuant to s.

20  120.57(1)(d) s. 120.57(1)(e).

21         Section 6.  Paragraph (d) of subsection (10) of section

22  120.65, Florida Statutes, is amended to read:

23         120.65  Administrative law judges.--

24         (10)  Not later than February 1 of each year, the

25  division shall issue a written report to the Administrative

26  Procedures Committee and the Administration Commission,

27  including at least the following information:

28         (d)  A report regarding each agency's compliance with

29  the filing requirement in s. 120.57(1)(l) s. 120.57(1)(m).

30         Section 7.  Paragraph (c) of subsection (2) of section

31  388.4111, Florida Statutes, is amended to read:


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    CS for SB 1970                                 First Engrossed



 1         388.4111  Public lands; arthropod control.--

 2         (2)

 3         (c)  If the land management agency and the local

 4  arthropod control agency are unable to agree on a public lands

 5  control plan, the Florida Coordinating Council on Mosquito

 6  Control may recommend a control plan to the department, which

 7  shall propose a recommended public lands control plan.  If the

 8  land management agency and the local arthropod control agency

 9  fail to agree to such recommended public lands control plan

10  within 30 days of the rendering of such plan, either agency

11  may petition the Land and Water Adjudicatory Commission to

12  determine whether the proposed control plan employs methods

13  which are the minimum necessary and economically feasible to

14  abate a public health or nuisance problem and which impose the

15  least hazard to fish, wildlife, and other natural resources

16  protected or managed in such areas. Unless both parties waive

17  their right to a hearing, the Land and Water Adjudicatory

18  Commission shall direct a hearing officer to hold a hearing

19  within the jurisdiction of the local arthropod control agency

20  pursuant to the provisions of ss. 120.569 and 120.57 and

21  submit a recommended order.  The commission shall, within 60

22  days of receipt of the recommended order, issue a final order

23  adopting a public lands control plan. Consistent with s.

24  120.57(1)(k) s. 120.57(1)(l), the commission may adopt or

25  modify the proposed control plan. The commission shall adopt

26  rules on the conduct of appeals before the commission.

27         Section 8.  Subsection (1) of section 403.788, Florida

28  Statutes, is amended to read:

29         403.788  Final disposition of application.--

30         (1)  For the purposes of issuing a final order, the

31  board shall serve as the agency head.  Within 45 days after


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    CS for SB 1970                                 First Engrossed



 1  receipt of the administrative law judge's recommended order,

 2  the board shall issue a final order as provided by s.

 3  120.57(1)(k) s. 120.57(1)(l), approving the application in

 4  whole, approving the application with such modifications or

 5  conditions as the board deems appropriate, or denying the

 6  issuance of a certification and stating the reasons for

 7  issuance or denial.

 8         Section 9.  Subsection (4) of section 403.9415, Florida

 9  Statutes, is amended to read:

10         403.9415  Final disposition of application.--

11         (4)  In determining whether an application should be

12  approved in whole, approved with modifications or conditions,

13  or denied, the board shall consider whether, and the extent to

14  which, the location of the natural gas transmission pipeline

15  corridor and the construction and maintenance of the natural

16  gas transmission pipeline will effect a reasonable balance

17  between the need for the natural gas transmission pipeline as

18  a means of providing natural gas energy and the impact upon

19  the public and the environment resulting from the location of

20  the natural gas transmission pipeline corridor and the

21  construction, operation, and maintenance of the natural gas

22  transmission pipeline.  In effecting this balance, the board

23  shall consider, based on all relevant, competent and

24  substantial evidence in the record, subject to s. 120.57(1)(k)

25  s. 120.57(1)(l), whether and the extent to which the project

26  will:

27         (a)  Ensure natural gas delivery reliability and

28  integrity;

29         (b)  Meet the natural gas energy needs of the state in

30  an orderly and timely fashion;

31  


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    CS for SB 1970                                 First Engrossed



 1         (c)  Comply with the nonprocedural requirements of

 2  agencies;

 3         (d)  Adversely affect historical sites and the natural

 4  environment;

 5         (e)  Adversely affect the health, safety, and welfare

 6  of the residents of the affected local government

 7  jurisdictions;

 8         (f)  Be consistent with applicable local government

 9  comprehensive plans and land development regulations; and

10         (g)  Avoid densely populated areas to the maximum

11  extent feasible.  If densely populated areas cannot be

12  avoided, locate, to the maximum extent feasible, within

13  existing utility corridors or rights-of-way.

14         Section 10.  Section 627.0612, Florida Statutes, is

15  amended to read:

16         627.0612  Administrative proceedings in rating

17  determinations.--In any proceeding to determine whether rates,

18  rating plans, or other matters governed by this part comply

19  with the law, the appellate court shall set aside a final

20  order of the office if the office has violated s. 120.57(1)(j)

21  s. 120.57(1)(k) by substituting its findings of fact for

22  findings of an administrative law judge which were supported

23  by competent substantial evidence.

24         Section 11.  Subsections (9) and (10) of section

25  163.3177, Florida Statutes, are amended to read:

26         163.3177  Required and optional elements of

27  comprehensive plan; studies and surveys.--

28         (9)  The state land planning agency shall, by February

29  15, 1986, adopt by rule minimum criteria for the review and

30  determination of compliance of the local government

31  comprehensive plan elements required by this act. Such rules


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    CS for SB 1970                                 First Engrossed



 1  shall not be subject to rule challenges under s. 120.56(2) or

 2  to drawout proceedings under s. 120.54(3)(c)2. Such rules

 3  shall become effective only after they have been submitted to

 4  the President of the Senate and the Speaker of the House of

 5  Representatives for review by the Legislature no later than 30

 6  days prior to the next regular session of the Legislature.  In

 7  its review the Legislature may reject, modify, or take no

 8  action relative to the rules.  The agency shall conform the

 9  rules to the changes made by the Legislature, or, if no action

10  was taken, the agency rules shall become effective. The rule

11  shall include criteria for determining whether:

12         (a)  Proposed elements are in compliance with the

13  requirements of part II, as amended by this act.

14         (b)  Other elements of the comprehensive plan are

15  related to and consistent with each other.

16         (c)  The local government comprehensive plan elements

17  are consistent with the state comprehensive plan and the

18  appropriate regional policy plan pursuant to s. 186.508.

19         (d)  Certain bays, estuaries, and harbors that fall

20  under the jurisdiction of more than one local government are

21  managed in a consistent and coordinated manner in the case of

22  local governments required to include a coastal management

23  element in their comprehensive plans pursuant to paragraph

24  (6)(g).

25         (e)  Proposed elements identify the mechanisms and

26  procedures for monitoring, evaluating, and appraising

27  implementation of the plan.  Specific measurable objectives

28  are included to provide a basis for evaluating effectiveness

29  as required by s. 163.3191.

30         (f)  Proposed elements contain policies to guide future

31  decisions in a consistent manner.


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    CS for SB 1970                                 First Engrossed



 1         (g)  Proposed elements contain programs and activities

 2  to ensure that comprehensive plans are implemented.

 3         (h)  Proposed elements identify the need for and the

 4  processes and procedures to ensure coordination of all

 5  development activities and services with other units of local

 6  government, regional planning agencies, water management

 7  districts, and state and federal agencies as appropriate.

 8  

 9  The state land planning agency may adopt procedural rules that

10  are consistent with this section and chapter 120 for the

11  review of local government comprehensive plan elements

12  required under this section.  The state land planning agency

13  shall provide model plans and ordinances and, upon request,

14  other assistance to local governments in the adoption and

15  implementation of their revised local government comprehensive

16  plans. The review and comment provisions applicable prior to

17  October 1, 1985, shall continue in effect until the criteria

18  for review and determination are adopted pursuant to this

19  subsection and the comprehensive plans required by s.

20  163.3167(2) are due.

21         (10)  The Legislature recognizes the importance and

22  significance of chapter 9J-5, Florida Administrative Code, the

23  Minimum Criteria for Review of Local Government Comprehensive

24  Plans and Determination of Compliance of the Department of

25  Community Affairs that will be used to determine compliance of

26  local comprehensive plans.  The Legislature reserved unto

27  itself the right to review chapter 9J-5, Florida

28  Administrative Code, and to reject, modify, or take no action

29  relative to this rule. Therefore, pursuant to subsection (9),

30  the Legislature hereby has reviewed chapter 9J-5, Florida

31  


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    CS for SB 1970                                 First Engrossed



 1  Administrative Code, and expresses the following legislative

 2  intent:

 3         (a)  The Legislature finds that in order for the

 4  department to review local comprehensive plans, it is

 5  necessary to define the term "consistency." Therefore, for the

 6  purpose of determining whether local comprehensive plans are

 7  consistent with the state comprehensive plan and the

 8  appropriate regional policy plan, a local plan shall be

 9  consistent with such plans if the local plan is "compatible

10  with" and "furthers" such plans.  The term "compatible with"

11  means that the local plan is not in conflict with the state

12  comprehensive plan or appropriate regional policy plan.  The

13  term "furthers" means to take action in the direction of

14  realizing goals or policies of the state or regional plan.

15  For the purposes of determining consistency of the local plan

16  with the state comprehensive plan or the appropriate regional

17  policy plan, the state or regional plan shall be construed as

18  a whole and no specific goal and policy shall be construed or

19  applied in isolation from the other goals and policies in the

20  plans.

21         (b)  Each local government shall review all the state

22  comprehensive plan goals and policies and shall address in its

23  comprehensive plan the goals and policies which are relevant

24  to the circumstances or conditions in its jurisdiction.  The

25  decision regarding which particular state comprehensive plan

26  goals and policies will be furthered by the expenditure of a

27  local government's financial resources in any given year is a

28  decision which rests solely within the discretion of the local

29  government. Intergovernmental coordination, as set forth in

30  paragraph (6)(h), shall be utilized to the extent required to

31  


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    CS for SB 1970                                 First Engrossed



 1  carry out the provisions of chapter 9J-5, Florida

 2  Administrative Code.

 3         (c)  The Legislature declares that if any portion of

 4  chapter 9J-5, Florida Administrative Code, is found to be in

 5  conflict with this part, the appropriate statutory provision

 6  shall prevail.

 7         (d)  Chapter 9J-5, Florida Administrative Code, does

 8  not mandate the creation, limitation, or elimination of

 9  regulatory authority, nor does it authorize the adoption or

10  require the repeal of any rules, criteria, or standards of any

11  local, regional, or state agency.

12         (e)  It is the Legislature's intent that support data

13  or summaries thereof shall not be subject to the compliance

14  review process, but the Legislature intends that goals and

15  policies be clearly based on appropriate data.  The department

16  may utilize support data or summaries thereof to aid in its

17  determination of compliance and consistency.  The Legislature

18  intends that the department may evaluate the application of a

19  methodology utilized in data collection or whether a

20  particular methodology is professionally accepted. However,

21  the department shall not evaluate whether one accepted

22  methodology is better than another. Chapter 9J-5, Florida

23  Administrative Code, shall not be construed to require

24  original data collection by local governments; however, local

25  governments are not to be discouraged from utilizing original

26  data so long as methodologies are professionally accepted.

27         (f)  The Legislature recognizes that under this

28  section, local governments are charged with setting levels of

29  service for public facilities in their comprehensive plans in

30  accordance with which development orders and permits will be

31  issued pursuant to s. 163.3202(2)(g).  Nothing herein shall


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    CS for SB 1970                                 First Engrossed



 1  supersede the authority of state, regional, or local agencies

 2  as otherwise provided by law.

 3         (g)  Definitions contained in chapter 9J-5, Florida

 4  Administrative Code, are not intended to modify or amend the

 5  definitions utilized for purposes of other programs or rules

 6  or to establish or limit regulatory authority.  Local

 7  governments may establish alternative definitions in local

 8  comprehensive plans, as long as such definitions accomplish

 9  the intent of this chapter, and chapter 9J-5, Florida

10  Administrative Code.

11         (h)  It is the intent of the Legislature that public

12  facilities and services needed to support development shall be

13  available concurrent with the impacts of such development in

14  accordance with s. 163.3180.  In meeting this intent, public

15  facility and service availability shall be deemed sufficient

16  if the public facilities and services for a development are

17  phased, or the development is phased, so that the public

18  facilities and those related services which are deemed

19  necessary by the local government to operate the facilities

20  necessitated by that development are available concurrent with

21  the impacts of the development.  The public facilities and

22  services, unless already available, are to be consistent with

23  the capital improvements element of the local comprehensive

24  plan as required by paragraph (3)(a) or guaranteed in an

25  enforceable development agreement.  This shall include

26  development agreements pursuant to this chapter or in an

27  agreement or a development order issued pursuant to chapter

28  380.  Nothing herein shall be construed to require a local

29  government to address services in its capital improvements

30  plan or to limit a local government's ability to address any

31  


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    CS for SB 1970                                 First Engrossed



 1  service in its capital improvements plan that it deems

 2  necessary.

 3         (i)  The department shall take into account the factors

 4  delineated in rule 9J-5.002(2), Florida Administrative Code,

 5  as it provides assistance to local governments and applies the

 6  rule in specific situations with regard to the detail of the

 7  data and analysis required.

 8         (j)  Chapter 9J-5, Florida Administrative Code, has

 9  become effective pursuant to subsection (9).  The Legislature

10  hereby directs the department to adopt amendments as necessary

11  which conform chapter 9J-5, Florida Administrative Code, with

12  the requirements of this legislative intent by October 1,

13  1986.

14         (k)  So that local governments are able to prepare and

15  adopt comprehensive plans with knowledge of the rules that

16  will be applied to determine consistency of the plans with

17  provisions of this part, it is the intent of the Legislature

18  that there should be no doubt as to the legal standing of

19  chapter 9J-5, Florida Administrative Code, at the close of the

20  1986 legislative session. Therefore, the Legislature declares

21  that changes made to chapter 9J-5, Florida Administrative

22  Code, prior to October 1, 1986, shall not be subject to rule

23  challenges under s. 120.56(2), or to drawout proceedings under

24  s. 120.54(3)(c)2. The entire chapter 9J-5, Florida

25  Administrative Code, as amended, shall be subject to rule

26  challenges under s. 120.56(3), as nothing herein shall be

27  construed to indicate approval or disapproval of any portion

28  of chapter 9J-5, Florida Administrative Code, not specifically

29  addressed herein.  No challenge pursuant to s. 120.56(3) may

30  be filed from July 1, 1987, through April 1, 1993. Any

31  amendments to chapter 9J-5, Florida Administrative Code,


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    CS for SB 1970                                 First Engrossed



 1  exclusive of the amendments adopted prior to October 1, 1986,

 2  pursuant to this act, shall be subject to the full chapter 120

 3  process.  All amendments shall have effective dates as

 4  provided in chapter 120 and submission to the President of the

 5  Senate and Speaker of the House of Representatives shall not

 6  be required.

 7         (j)(l)  The state land planning agency shall consider

 8  land use compatibility issues in the vicinity of all airports

 9  in coordination with the Department of Transportation and

10  adjacent to or in close proximity to all military

11  installations in coordination with the Department of Defense.

12         Section 12.  Subsection (1) of section 186.508, Florida

13  Statutes, is amended to read:

14         186.508  Strategic regional policy plan adoption;

15  consistency with state comprehensive plan.--

16         (1)  Each regional planning council shall submit to the

17  Executive Office of the Governor its proposed strategic

18  regional policy plan on a schedule established by the

19  Executive Office of the Governor to coordinate implementation

20  of the strategic regional policy plans with the evaluation and

21  appraisal reports required by s. 163.3191.  The Executive

22  Office of the Governor, or its designee, shall review the

23  proposed strategic regional policy plan to ensure consistency

24  with the adopted state comprehensive plan and shall, within 60

25  days, provide any recommended revisions. The Governor's

26  recommended revisions shall be included in the plans in a

27  comment section. However, nothing herein shall preclude a

28  regional planning council from adopting or rejecting any or

29  all of the revisions as a part of its plan prior to the

30  effective date of the plan. The rules of a regional planning

31  council adopting its first the strategic regional policy plan


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    CS for SB 1970                                 First Engrossed



 1  are shall not be subject to rule challenge under s. 120.56(2)

 2  or to drawout proceedings under s. 120.54(3)(c)2., but, once

 3  adopted, shall be subject to an invalidity challenge under s.

 4  120.56(3) by substantially affected persons, including the

 5  Executive Office of the Governor.  The rules shall be adopted

 6  by the regional planning councils, and shall become effective

 7  upon filing with the Department of State, notwithstanding the

 8  provisions of s. 120.54(3)(e)6.

 9         Section 13.  Section 370.26, Florida Statutes, is

10  amended to read:

11         370.26  Aquaculture definitions; marine aquaculture

12  products, producers, and facilities.--

13         (1)  As used in this section, the term:

14         (a)  "Marine aquaculture facility" means a facility

15  built and operated for the purpose of producing marine

16  aquaculture products. Marine aquaculture facilities contain

17  culture systems such as, but not limited to, ponds, tanks,

18  raceways, cages, and bags used for commercial production,

19  propagation, growout, or product enhancement of marine

20  products. Marine aquaculture facilities specifically do not

21  include:

22         1.  Facilities that maintain marine aquatic organisms

23  exclusively for the purpose of shipping, distribution,

24  marketing, or wholesale and retail sales;

25         2.  Facilities that maintain marine aquatic organisms

26  for noncommercial, education, exhibition, or scientific

27  purposes;

28         3.  Facilities in which the activity does not require

29  an aquaculture certification pursuant to s. 597.004; or

30         4.  Facilities used by marine aquarium hobbyists.

31  


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    CS for SB 1970                                 First Engrossed



 1         (b)  "Marine aquaculture producer" means a person

 2  holding an aquaculture certificate pursuant to s. 597.004 to

 3  produce marine aquaculture products.

 4         (c)  "Marine aquaculture product" means any product

 5  derived from marine aquatic organisms that are owned and

 6  propagated, grown, or produced under controlled conditions by

 7  a person holding an aquaculture certificate pursuant to s.

 8  597.004.  Such product does not include organisms harvested

 9  from the wild for depuration, wet storage, or relayed for the

10  purpose of controlled purification.  Marine aquaculture

11  products are considered saltwater products for the purposes of

12  this chapter, except the holder of an aquaculture certificate

13  is not required to purchase and possess a saltwater products

14  license in order to possess, transport, or sell marine

15  aquaculture products pursuant to s. 370.06. To renew an

16  existing restricted species endorsement, marine aquaculture

17  producers possessing a valid saltwater products license with a

18  restricted species endorsement may apply income from the sales

19  of marine aquaculture products to licensed wholesale dealers.

20  Income from the sales of marine aquaculture products shall not

21  be eligible for the purpose of acquiring a new restricted

22  species endorsement. The holder of an aquaculture certificate

23  must purchase and possess a saltwater products license in

24  order to possess, transport, or sell saltwater products not

25  specifically provided for in s. 597.004.

26         (2)  The Department of Environmental Protection shall

27  encourage the development of aquaculture and the production of

28  aquaculture products. The department shall develop a process

29  consistent with this section that would consolidate permits,

30  general permits, and other regulatory requirements to

31  streamline the permitting process and result in effective


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    CS for SB 1970                                 First Engrossed



 1  regulation of aquaculture activities.  This process shall

 2  provide for a single application and application fee for

 3  marine aquaculture activities which are regulated by the

 4  department. Procedures to consolidate permitting actions under

 5  this section do not constitute rules within the meaning of s.

 6  120.52.

 7         (2)(3)  Until aquaculture general permits under s.

 8  403.814 can be expanded and developed, the department shall

 9  establish criteria to temporarily permit aquaculture

10  activities that may be presumed not to result in adverse

11  environmental impacts. The criteria developed pursuant to this

12  subsection do not constitute rules within the meaning of s.

13  120.52. Permit application fees under this subsection shall be

14  no more than that established for a general permit. The

15  department may delegate to the water management districts the

16  regulatory authority for aquaculture facilities subject to the

17  temporary general permitting criteria of this subsection.

18  During the period prior to development of a general permit

19  under s. 403.814, the department shall establish a compliance

20  plan based on monitoring results that will assist in the

21  development of the general permit.

22         (3)(4)  The department shall request that the

23  Aquaculture Review Council identify a working group of

24  industry representatives who can provide technical assistance

25  in developing aquaculture general permits.  The industry

26  representatives shall come from the segment of the industry to

27  be affected by the specific general permit to be developed.

28  The working group shall be included in all phases of

29  developing the aquaculture general permits.

30         (4)(5)  The department shall:

31  


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    CS for SB 1970                                 First Engrossed



 1         (a)  Coordinate with the Aquaculture Review Council,

 2  the Aquaculture Interagency Coordinating Council, and the

 3  Department of Agriculture and Consumer Services when

 4  developing criteria for aquaculture general permits.

 5         (b)  Permit experimental technologies to collect and

 6  evaluate data necessary to reduce or mitigate environmental

 7  concerns.

 8         (c)  Provide technical expertise and promote the

 9  transfer of information that would be beneficial to the

10  development of aquaculture.

11         (5)(6)  The Fish and Wildlife Conservation Commission

12  shall encourage the development of aquaculture in the state

13  through the following:

14         (a)  Providing assistance in developing technologies

15  applicable to aquaculture activities, evaluating practicable

16  production alternatives, and providing management agreements

17  to develop innovative culture practices.

18         (b)  Facilitating aquaculture research on life

19  histories, stock enhancement, and alternative species, and

20  providing research results that would assist in the

21  evaluation, development, and commercial production of

22  candidate species for aquaculture, including:

23         1.  Providing eggs, larvae, fry, and fingerlings to

24  aquaculturists when excess cultured stocks are available from

25  the commission's facilities and the culture activities are

26  consistent with the commission's stock enhancement projects.

27  Such stocks may be obtained by reimbursing the commission for

28  the cost of production on a per-unit basis. Revenues resulting

29  from the sale of stocks shall be deposited into the trust fund

30  used to support the production of such stocks.

31  


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    CS for SB 1970                                 First Engrossed



 1         2.  Conducting research programs to evaluate candidate

 2  species when funding and staff are available.

 3         3.  Encouraging the private production of marine fish

 4  and shellfish stocks for the purpose of providing such stocks

 5  for statewide stock enhancement programs.  When such stocks

 6  become available, the commission shall reduce or eliminate

 7  duplicative production practices that would result in direct

 8  competition with private commercial producers.

 9         4.  Developing a working group, in cooperation with the

10  Department of Agriculture and Consumer Services, the

11  Aquaculture Review Council, and the Aquaculture Interagency

12  Coordinating Council, to plan and facilitate the development

13  of private marine fish and nonfish hatcheries and to encourage

14  private/public partnerships to promote the production of

15  marine aquaculture products.

16         (c)  Coordinating with public and private research

17  institutions within the state to advance the aquaculture

18  production and sale of sturgeon as a food fish.

19         (6)(7)  The Fish and Wildlife Conservation Commission

20  shall coordinate with the Aquaculture Review Council and the

21  Department of Agriculture and Consumer Services to establish

22  and implement grant programs to provide funding for projects

23  and programs that are identified in the state's aquaculture

24  plan, pending legislative appropriations. The commission and

25  the Department of Agriculture and Consumer Services shall

26  establish and implement a grant program to make grants

27  available to qualified nonprofit, educational, and research

28  entities or local governments to fund infrastructure,

29  planning, practical and applied research, development

30  projects, production economic analysis, and training and stock

31  enhancement projects, and to make grants available to


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    CS for SB 1970                                 First Engrossed



 1  counties, municipalities, and other state and local entities

 2  for applied aquaculture projects that are directed to economic

 3  development, pending legislative appropriations.

 4         (7)(8)  The Fish and Wildlife Conservation Commission

 5  shall provide assistance to the Department of Agriculture and

 6  Consumer Services in the development of an aquaculture plan

 7  for the state.

 8         Section 14.  Subsections (5) and (6) of section

 9  373.421, Florida Statutes, are amended to read:

10         373.421  Delineation methods; formal determinations.--

11         (5)  A formal determination obtained under this section

12  is final agency action and is in lieu of a declaratory

13  statement of jurisdiction obtainable under s. 120.565 and is

14  final agency action unless a timely and sufficient petition

15  for an administrative hearing under ss. Sections 120.569 and

16  120.57 is filed apply to formal determinations under this

17  section.

18         (6)  The district or the department may also issue

19  nonbinding informal determinations or otherwise institute

20  determinations on its own initiative as provided by law. A

21  nonbinding informal determination of the extent of surface

22  waters and wetlands issued by the South Florida Water

23  Management District or the Southwest Florida Water Management

24  District, between July 1, 1989, and the effective date of the

25  methodology ratified in s. 373.4211, shall be validated by the

26  district if a petition to validate the nonbinding informal

27  determination is filed with the district on or before October

28  1, 1994, provided:

29         (a)  The petitioner submits the documentation prepared

30  by the agency, and signed by an agency employee in the course

31  of the employee's official duties, at the time the nonbinding


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    CS for SB 1970                                 First Engrossed



 1  informal determination was issued, showing the boundary of the

 2  surface waters or wetlands;

 3         (b)  The request is accompanied by the appropriate fee

 4  in accordance with the fee schedule established by district

 5  rule;

 6         (c)  Any supplemental information, such as aerial

 7  photographs and soils maps, is provided as necessary to ensure

 8  an accurate determination;

 9         (d)  District staff verify the delineated surface water

10  or wetland boundary through site inspection; and

11         (e)  Following district verification, and adjustment if

12  necessary, of the boundary of surface waters or wetlands, the

13  petitioner submits a survey certified pursuant to chapter 472,

14  which depicts the surface water or wetland boundaries. The

15  certified survey shall contain a legal description of, and the

16  acreage contained within, the boundaries of the property for

17  which the determination is sought. The boundaries must be

18  witnessed to the property boundaries and must be capable of

19  being mathematically reproduced from the survey.

20  

21  Validated informal nonbinding determinations issued by the

22  South Florida Water Management District and the Southwest

23  Florida Water Management District shall remain valid for a

24  period of 5 years from the date of validation by the district,

25  as long as physical conditions on the property do not change

26  so as to alter the boundaries of surface waters or wetlands. A

27  validation obtained under this section is final agency action

28  unless a timely and sufficient petition for an administrative

29  hearing under ss. Sections 120.569 and 120.57 is filed apply

30  to validations under this section.

31  


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    CS for SB 1970                                 First Engrossed



 1         Section 15.  Paragraph (d) of subsection (23) of

 2  section 380.06, Florida Statutes, is amended to read:

 3         380.06  Developments of regional impact.--

 4         (23)  ADOPTION OF RULES BY STATE LAND PLANNING

 5  AGENCY.--

 6         (d)  Regional planning agencies that perform

 7  development-of-regional-impact and Florida Quality Development

 8  review are authorized to assess and collect fees to fund the

 9  costs, direct and indirect, of conducting the review process.

10  The state land planning agency shall adopt rules to provide

11  uniform criteria for the assessment and collection of such

12  fees. The rules providing uniform criteria shall not be

13  subject to rule challenge under s. 120.56(2) or to drawout

14  proceedings under s. 120.54(3)(c)2., but, once adopted, shall

15  be subject to an invalidity challenge under s. 120.56(3) by

16  substantially affected persons. Until the state land planning

17  agency adopts a rule implementing this paragraph, rules of the

18  regional planning councils currently in effect regarding fees

19  shall remain in effect. Fees may vary in relation to the type

20  and size of a proposed project, but shall not exceed $75,000,

21  unless the state land planning agency, after reviewing any

22  disputed expenses charged by the regional planning agency,

23  determines that said expenses were reasonable and necessary

24  for an adequate regional review of the impacts of a project.

25         Section 16.  Subsection (3) of section 393.0661,

26  Florida Statutes, is amended to read:

27         393.0661  Home and community-based services delivery

28  system; comprehensive redesign.--The Legislature finds that

29  the home and community-based services delivery system for

30  persons with developmental disabilities and the availability

31  of appropriated funds are two of the critical elements in


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    CS for SB 1970                                 First Engrossed



 1  making services available. Therefore, it is the intent of the

 2  Legislature that the Agency for Persons with Disabilities

 3  shall develop and implement a comprehensive redesign of the

 4  system.

 5         (3)  Pending the adoption of rate methodologies

 6  pursuant to nonemergency rulemaking under s. 120.54, The

 7  Agency for Health Care Administration may, at any time, adopt

 8  emergency rules under s. 120.54(4) in order to comply with

 9  subsection (4). In adopting such emergency rules, the agency

10  need not make the findings required by s. 120.54(4)(a), and

11  such rules shall be exempt from time limitations provided in

12  s. 120.54(4)(c) and shall remain in effect until replaced by

13  another emergency rule or the nonemergency adoption of the

14  rate methodology.

15         Section 17.  Section 393.125, Florida Statutes, is

16  amended to read:

17         393.125  Hearings on appeal of adverse agency action;

18  rulemaking authority Hearing rights.--

19         (1)  Fair hearings related to issues before the Agency

20  for Persons with Disabilities shall be held before the

21  Division of Administrative Hearings.

22         (2)  The agency shall adopt rules to establish

23  guidelines for administrative hearings which are relevant to

24  the termination, suspension, reduction, or denial of client

25  services. The rules must ensure that the due process rights of

26  the clients of the agency are consistent with Medicaid law.

27  The rules shall also ensure that witnesses appearing on behalf

28  of any party are permitted to appear by telephone or video

29  teleconference.

30         (1)  REVIEW OF AGENCY DECISIONS.--

31  


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    CS for SB 1970                                 First Engrossed



 1         (a)  Any developmental services applicant or client, or

 2  his or her parent, guardian, guardian advocate, or authorized

 3  representative, who has any substantial interest determined by

 4  the agency, has the right to request an administrative hearing

 5  pursuant to ss. 120.569 and 120.57.

 6         (b)  Notice of the right to an administrative hearing

 7  shall be given, both verbally and in writing, to the applicant

 8  or client, and his or her parent, guardian, guardian advocate,

 9  or authorized representative, at the same time that the agency

10  gives the applicant or client notice of the agency's action.

11  The notice shall be given, both verbally and in writing, in

12  the language of the client or applicant and in English.

13         (c)  A request for a hearing under this section shall

14  be made to the agency, in writing, within 30 days of the

15  applicant's or client's receipt of the notice.

16         (3)(2)  REVIEW OF PROVIDER DECISIONS.--The agency shall

17  adopt rules to establish uniform procedures guidelines for the

18  agency and service providers relevant to termination,

19  suspension, or reduction of client services by the service

20  provider. The rules shall ensure the due process rights of

21  service providers and clients.

22         Section 18.  Subsection (6) of section 408.039, Florida

23  Statutes, is amended to read:

24         408.039  Review process.--The review process for

25  certificates of need shall be as follows:

26         (6)  JUDICIAL REVIEW.--

27         (a)  A party to an administrative hearing for an

28  application for a certificate of need has the right, within

29  not more than 30 days after the date of the final order, to

30  seek judicial review in the District Court of Appeal pursuant

31  


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    CS for SB 1970                                 First Engrossed



 1  to s. 120.68.  The agency shall be a party in any such

 2  proceeding.

 3         (b)  In such judicial review, the court shall affirm

 4  the final order of the agency, unless the decision is

 5  arbitrary, capricious, or not in compliance with ss.

 6  408.031-408.045.

 7         (b)(c)  The court, in its discretion, may award

 8  reasonable attorney's fees and costs to the prevailing party

 9  if the court finds that there was a complete absence of a

10  justiciable issue of law or fact raised by the losing party.

11         Section 19.  Section 409.285, Florida Statutes, is

12  amended to read:

13         409.285  Opportunity for hearing and appeal.--

14         (1)  If an application for public assistance is not

15  acted upon within a reasonable time after the filing of the

16  application, or is denied in whole or in part, or if an

17  assistance payment is modified or canceled, the applicant or

18  recipient may appeal the decision to the Department of

19  Children and Family Services in the manner and form prescribed

20  by the department.

21         (2)  The hearing authority may be the Secretary of

22  Children and Family Services, a panel of department officials,

23  or a hearing officer appointed for that purpose.  The hearing

24  authority is responsible for a final administrative decision

25  in the name of the state agency administering the public

26  assistance program department on all issues that have been the

27  subject of a hearing. With regard to the state agency

28  administering the public assistance program department, the

29  decision of the hearing authority is final and binding.  The

30  state agency administering the public assistance program

31  


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    CS for SB 1970                                 First Engrossed



 1  department is responsible for seeing that the decision is

 2  carried out promptly.

 3         (3)  The department may adopt rules to administer this

 4  section. Rules for the Temporary Assistance for Needy Families

 5  block grant programs must be similar to the federal

 6  requirements for Medicaid programs.

 7         (4)  As used in this section, the term "public

 8  assistance" means financial assistance paid to, or on the

 9  behalf of, an individual based on Titles IV and XIX of the

10  Social Security Act, the temporary cash assistance program,

11  the food stamp program, the optional state supplementation

12  program, or any other program authorized in Florida Statutes

13  for the Department of Children and Family Services to provide

14  benefits to individuals.

15         Section 20.  Section 440.021, Florida Statutes, is

16  amended to read:

17         440.021  Exemption of workers' compensation from

18  chapter 120.--Workers' compensation adjudications by judges of

19  compensation claims are exempt from chapter 120, and no judge

20  of compensation claims shall be considered an agency or a part

21  thereof. Communications of the result of investigations by the

22  department pursuant to s. 440.185(4) are exempt from chapter

23  120. In all instances in which the department institutes

24  action to collect a penalty or interest which may be due

25  pursuant to this chapter, the penalty or interest shall be

26  assessed without hearing, and the party against which such

27  penalty or interest is assessed shall be given written notice

28  of such assessment and shall have the right to protest within

29  20 days of such notice. Upon receipt of a timely notice of

30  protest and after such investigation as may be necessary, the

31  department shall, if it agrees with such protest, notify the


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    CS for SB 1970                                 First Engrossed



 1  protesting party that the assessment has been revoked.  If the

 2  department does not agree with the protest, it shall refer the

 3  matter to the judge of compensation claims for determination

 4  pursuant to s. 440.25(2)-(5).  Such action of the department

 5  is exempt from the provisions of chapter 120.

 6         Section 21.  Subsection (4) of section 456.073, Florida

 7  Statutes, is amended to read:

 8         456.073  Disciplinary proceedings.--Disciplinary

 9  proceedings for each board shall be within the jurisdiction of

10  the department.

11         (4)  The determination as to whether probable cause

12  exists shall be made by majority vote of a probable cause

13  panel of the board, or by the department, as appropriate. Each

14  regulatory board shall provide by rule that the determination

15  of probable cause shall be made by a panel of its members or

16  by the department. Each board may provide by rule for multiple

17  probable cause panels composed of at least two members. Each

18  board may provide by rule that one or more members of the

19  panel or panels may be a former board member. The length of

20  term or repetition of service of any such former board member

21  on a probable cause panel may vary according to the direction

22  of the board when authorized by board rule. Any probable cause

23  panel must include one of the board's former or present

24  consumer members, if one is available, is willing to serve,

25  and is authorized to do so by the board chair. Any probable

26  cause panel must include a present board member. Any probable

27  cause panel must include a former or present professional

28  board member. However, any former professional board member

29  serving on the probable cause panel must hold an active valid

30  license for that profession. All proceedings of the panel are

31  exempt from s. 286.011 until 10 days after probable cause has


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    CS for SB 1970                                 First Engrossed



 1  been found to exist by the panel or until the subject of the

 2  investigation waives his or her privilege of confidentiality;

 3  however, the proceedings of a probable cause panel that is

 4  convened to reconsider the original finding of probable cause

 5  is not exempt from s. 286.011. The probable cause panel may

 6  make a reasonable request, and upon such request the

 7  department shall provide such additional investigative

 8  information as is necessary to the determination of probable

 9  cause. A request for additional investigative information

10  shall be made within 15 days after from the date of receipt by

11  the probable cause panel of the investigative report of the

12  department or the agency. The probable cause panel or the

13  department, as may be appropriate, shall make its

14  determination of probable cause within 30 days after receipt

15  by it of the final investigative report of the department. The

16  secretary may grant extensions of the 15-day and the 30-day

17  time limits. In lieu of a finding of probable cause, the

18  probable cause panel, or the department if there is no board,

19  may issue a letter of guidance to the subject. If, within the

20  30-day time limit, as may be extended, the probable cause

21  panel does not make a determination regarding the existence of

22  probable cause or does not issue a letter of guidance in lieu

23  of a finding of probable cause, the department must make a

24  determination regarding the existence of probable cause within

25  10 days after the expiration of the time limit.  If the

26  probable cause panel finds that probable cause exists, it

27  shall direct the department to file a formal complaint against

28  the licensee. The department shall follow the directions of

29  the probable cause panel regarding the filing of a formal

30  complaint. If directed to do so, the department shall file a

31  formal complaint against the subject of the investigation and


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    CS for SB 1970                                 First Engrossed



 1  prosecute that complaint pursuant to chapter 120. However, the

 2  department may decide not to prosecute the complaint if it

 3  finds that probable cause has been improvidently found by the

 4  panel. In such cases, the department shall refer the matter to

 5  the board. The board may then file a formal complaint and

 6  prosecute the complaint pursuant to chapter 120. The

 7  department shall also refer to the board any investigation or

 8  disciplinary proceeding not before the Division of

 9  Administrative Hearings pursuant to chapter 120 or otherwise

10  completed by the department within 1 year after the filing of

11  a complaint. The department, for disciplinary cases under its

12  jurisdiction, must establish a uniform reporting system to

13  quarterly refer to each board the status of any investigation

14  or disciplinary proceeding that is not before the Division of

15  Administrative Hearings or otherwise completed by the

16  department within 1 year after the filing of the complaint.

17  Annually, the department, in consultation with the applicable

18  probable cause panel, must establish a plan to expedite or

19  otherwise close any investigation or disciplinary proceeding

20  that is not before the Division of Administrative Hearings or

21  otherwise completed by the department within 1 year after the

22  filing of the complaint.  A probable cause panel or a board

23  may retain independent legal counsel, employ investigators,

24  and continue the investigation as it deems necessary; all

25  costs thereof shall be paid from a trust fund used by the

26  department to implement this chapter. All proceedings of the

27  probable cause panel are exempt from s. 120.525.

28         Section 22.  Subsection (5) of section 458.345, Florida

29  Statutes, is amended to read:

30  

31  


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    CS for SB 1970                                 First Engrossed



 1         458.345  Registration of resident physicians, interns,

 2  and fellows; list of hospital employees; prescribing of

 3  medicinal drugs; penalty.--

 4         (5)  Notwithstanding any provision of this section or

 5  s. 120.52 to the contrary, any person who is registered under

 6  this section is subject to the provisions of s. 458.331.

 7         Section 23.  Subsection (8) of section 459.021, Florida

 8  Statutes, is amended to read:

 9         459.021  Registration of resident physicians, interns,

10  and fellows; list of hospital employees; penalty.--

11         (8)  Notwithstanding any provision of this section or

12  s. 120.52 to the contrary, any person who is registered under

13  this section is subject to the provisions of s. 459.015.

14         Section 24.  Subsection (9) of section 497.153, Florida

15  Statutes, is amended to read:

16         497.153  Disciplinary procedures and penalties.--

17         (9)  DETERMINATIONS NOT SUBJECT TO CHAPTER 120.--The

18  following determinations shall not entitle any person to

19  proceedings under chapter 120:

20         (a)  A determination by the department to exercise its

21  authority under this chapter to investigate, financially

22  examine, or inspect any person or entity; or a determination

23  by the department concerning how to conduct such

24  investigation, financial examination, or inspection; or a

25  determination by the department concerning the content of any

26  report of investigation, financial examination, or inspection.

27         (a)(b)  A determination by the department that there is

28  reasonable cause to believe that a licensee under this chapter

29  is subject to disciplinary action under this chapter and that

30  the matter should be presented to a probable cause panel of

31  


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    CS for SB 1970                                 First Engrossed



 1  the board, or that the licensee is not eligible for a citation

 2  pursuant to criteria established by the board.

 3         (b)(c)  A determination by a probable cause panel of

 4  the board that probable cause does or does not exist, or a

 5  determination by the department under paragraph (3)(b).

 6         (d)  A determination by the department not to offer any

 7  settlement to a licensee concerning any disciplinary matter.

 8         Section 25.  Section 538.11, Florida Statutes, is

 9  amended to read:

10         538.11  Powers and duties of department; rules.--The

11  same duties and privileges imposed by chapter 212 upon dealers

12  of tangible personal property respecting the keeping of books

13  and records and accounts and compliance with rules of the

14  department shall apply to and be binding upon all persons who

15  are subject to the provisions of this chapter. The department

16  shall administer, collect, and enforce the registration

17  authorized under this chapter pursuant to the same procedures

18  used in the administration, collection, and enforcement of the

19  general state sales tax imposed under chapter 212, except as

20  provided in this section.  The provisions of chapter 212

21  regarding the keeping of records and books shall apply.  The

22  department is authorized to employ persons and incur other

23  expenses for which funds are appropriated by the Legislature.

24  The department is empowered to adopt such rules, and shall

25  prescribe and publish such forms, as may be necessary to

26  effectuate the purposes of this chapter. The Legislature

27  hereby finds that the failure to promptly implement the

28  provisions of this chapter would present an immediate threat

29  to the welfare of the state. Therefore, the executive director

30  of the department is hereby authorized to adopt emergency

31  rules pursuant to s. 120.54(4), for purposes of implementing


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    CS for SB 1970                                 First Engrossed



 1  this chapter. Notwithstanding any other provision of law, such

 2  emergency rules shall remain effective for 6 months from the

 3  date of adoption. Other rules of the department related to and

 4  in furtherance of the orderly implementation of the chapter

 5  shall not be subject to a rule challenge under s. 120.56(2) or

 6  a drawout proceeding under s. 120.54(3)(c)2. but, once

 7  adopted, shall be subject to an invalidity challenge under s.

 8  120.56(3).  Such rules shall be adopted by the Governor and

 9  Cabinet and shall become effective upon filing with the

10  Department of State, notwithstanding the provisions of s.

11  120.54(3)(e)6.

12         Section 26.  Section 548.07, Florida Statutes, is

13  amended to read:

14         548.07  Suspension of license or permit by

15  commissioner; hearing.--

16         (1)  Notwithstanding any provision of chapter 120, any

17  member of the commission may, upon her or his own motion or

18  upon the verified written complaint of any person charging a

19  licensee or permittee with violating this chapter, suspend any

20  license or permit until final determination by the commission

21  if such action is necessary to protect the health, safety, and

22  welfare of the public welfare and the best interests of the

23  sport.

24         (2)  The commission shall hold a hearing within 10 days

25  after the date on which the license or permit is suspended.

26         Section 27.  Section 548.073, Florida Statutes, is

27  repealed.

28         Section 28.  Paragraph (c) of subsection (6) of section

29  1002.33, Florida Statutes, is amended to read:

30         1002.33  Charter schools.--

31  


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    CS for SB 1970                                 First Engrossed



 1         (6)  APPLICATION PROCESS AND REVIEW.--Charter school

 2  applications are subject to the following requirements:

 3         (c)  An applicant may appeal any denial of that

 4  applicant's application or failure to act on an application to

 5  the State Board of Education no later than 30 calendar days

 6  after receipt of the district school board's decision or

 7  failure to act and shall notify the district school board of

 8  its appeal. Any response of the district school board shall be

 9  submitted to the State Board of Education within 30 calendar

10  days after notification of the appeal. Upon receipt of

11  notification from the State Board of Education that a charter

12  school applicant is filing an appeal, the Commissioner of

13  Education shall convene a meeting of the Charter School Appeal

14  Commission to study and make recommendations to the State

15  Board of Education regarding its pending decision about the

16  appeal. The commission shall forward its recommendation to the

17  state board no later than 7 calendar days prior to the date on

18  which the appeal is to be heard. The State Board of Education

19  shall by majority vote accept or reject the decision of the

20  district school board no later than 90 calendar days after an

21  appeal is filed in accordance with State Board of Education

22  rule. The Charter School Appeal Commission may reject an

23  appeal submission for failure to comply with procedural rules

24  governing the appeals process. The rejection shall describe

25  the submission errors. The appellant may have up to 15

26  calendar days from notice of rejection to resubmit an appeal

27  that meets requirements of State Board of Education rule. An

28  application for appeal submitted subsequent to such rejection

29  shall be considered timely if the original appeal was filed

30  within 30 calendar days after receipt of notice of the

31  specific reasons for the district school board's denial of the


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    CS for SB 1970                                 First Engrossed



 1  charter application. The State Board of Education shall remand

 2  the application to the district school board with its written

 3  decision that the district school board approve or deny the

 4  application. The decision of the State Board of Education

 5  shall include written findings of fact. The district school

 6  board shall implement the decision of the State Board of

 7  Education. The decision of the State Board of Education is not

 8  subject to the provisions of the Administrative Procedure Act,

 9  chapter 120.

10         Section 29.  Paragraph (f) of subsection (5) and

11  paragraph (d) of subsection (6) of section 1002.335, Florida

12  Statutes, are amended to read:

13         1002.335  Florida Schools of Excellence Commission.--

14         (5)  CHARTERING AUTHORITY.--

15         (f)  The decision of the State Board of Education

16  pursuant to paragraph (e) shall not be subject to the

17  provisions of chapter 120 and shall be a final action subject

18  to judicial review by the district court of appeal. The

19  decision of the State Board of Education shall include written

20  findings of fact.

21         (6)  APPROVAL OF COSPONSORS.--

22         (d)  The commission's decision to deny an application

23  or to revoke approval of a cosponsor pursuant to subsection

24  (8) is not subject to chapter 120 and may be appealed to the

25  State Board of Education pursuant to s. 1002.33(6). The

26  decision of the commission shall include written findings of

27  fact.

28         Section 30.  Paragraph (b) of subsection (6) of section

29  1002.34, Florida Statutes, is amended to read:

30         1002.34  Charter technical career centers.--

31  


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    CS for SB 1970                                 First Engrossed



 1         (6)  SPONSOR.--A district school board or community

 2  college board of trustees or a consortium of one or more of

 3  each may sponsor a center in the county in which the board has

 4  jurisdiction.

 5         (b)  An applicant may appeal any denial of its

 6  application to the State Board of Education within 30 days

 7  after the sponsor's denial and shall notify the sponsor of its

 8  appeal. Any response of the sponsor must be submitted to the

 9  state board within 30 days after notification of the appeal.

10  The State Board of Education must, by majority vote, accept or

11  reject the decision of the sponsor no later than 60 days after

12  an appeal is filed, pursuant to State Board of Education rule.

13  The State Board of Education may reject an appeal for failure

14  to comply with procedural rules governing the appeals process,

15  and the rejection must describe the submission errors. The

16  appellant may have up to 15 days after notice of rejection to

17  resubmit an appeal. An application for appeal submitted after

18  a rejection is timely if the original appeal was filed within

19  30 days after the sponsor's denial. The State Board of

20  Education shall remand the application to the sponsor with a

21  written recommendation that the sponsor approve or deny the

22  application, consistent with the state board's decision. The

23  decision of the State Board of Education shall include written

24  findings of fact. The decision of the State Board of Education

25  is not subject to the provisions of chapter 120.

26         Section 31.  This act shall take effect July 1, 2007.

27  

28  

29  

30  

31  


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