January 21, 2019
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       Florida Senate - 2010                                    SB 2124
       
       
       
       By the Committee on Governmental Oversight and Accountability
       
       
       
       
       585-02175-10                                          20102124__
    1                        A bill to be entitled                      
    2         An act relating to electronic filing in the Division
    3         of Administrative Hearings; amending ss. 440.192 and
    4         440.25, F.S.; providing procedures for filing
    5         petitions for benefits and other documents in workers’
    6         compensation benefits proceedings; amending ss. 440.29
    7         and 440.45, F.S.; authorizing the Office of the Judges
    8         of Compensation Claims to adopt rules to implement
    9         electronic procedures; amending s. 120.54, F.S.;
   10         requiring a petitioner requesting an administrative
   11         hearing to include the petitioner’s e-mail address;
   12         creating s. 120.585, F.S.; requiring an attorney to
   13         use electronic means when filing a document with the
   14         Division of Administrative Hearings; encouraging a
   15         party not represented by an attorney to file documents
   16         whenever possible by electronic means through the
   17         division’s website; amending ss. 57.111, 120.56,
   18         120.569, 120.57, 552.40, 553.73, and 961.03, F.S.;
   19         providing for electronic procedures in administrative
   20         proceedings, including proceedings involving the
   21         Florida Building Code and compensation for wrongful
   22         incarceration; conforming provisions to changes made
   23         by the act; providing an effective date.
   24  
   25  Be It Enacted by the Legislature of the State of Florida:
   26  
   27         Section 1. Subsections (1) and (8) of section 440.192,
   28  Florida Statutes, are amended to read:
   29         440.192 Procedure for resolving benefit disputes.—
   30         (1) Any employee may, for any benefit that is ripe, due,
   31  and owing, file by certified mail, or by electronic means
   32  approved by the Deputy Chief Judge, with the Office of the
   33  Judges of Compensation Claims a petition for benefits which
   34  meets the requirements of this section and the definition of
   35  specificity in s. 440.02. An employee represented by an attorney
   36  shall file by electronic means approved by the Deputy Chief
   37  Judge. An employee not represented by an attorney may file by
   38  certified mail or by electronic means approved by the Deputy
   39  Chief Judge. The department shall inform employees of the
   40  location of the Office of the Judges of Compensation Claims and
   41  the office’s website address for purposes of filing a petition
   42  for benefits. The employee shall also serve copies of the
   43  petition for benefits by certified mail, or by electronic means
   44  approved by the Deputy Chief Judge, upon the employer and the
   45  employer’s carrier. The Deputy Chief Judge shall refer the
   46  petitions to the judges of compensation claims.
   47         (8) Within 14 days after receipt of a petition for benefits
   48  by certified mail or by approved electronic means, the carrier
   49  must either pay the requested benefits without prejudice to its
   50  right to deny within 120 days from receipt of the petition or
   51  file a response to petition with the Office of the Judges of
   52  Compensation Claims. The response shall be filed by electronic
   53  means approved by the Deputy Chief Judge. The carrier must list
   54  all benefits requested but not paid and explain its
   55  justification for nonpayment in the response to petition. A
   56  carrier that does not deny compensability in accordance with s.
   57  440.20(4) is deemed to have accepted the employee’s injuries as
   58  compensable, unless it can establish material facts relevant to
   59  the issue of compensability that could not have been discovered
   60  through reasonable investigation within the 120-day period. The
   61  carrier shall provide copies of the response to the filing
   62  party, employer, and claimant by certified mail or by electronic
   63  means approved by the Deputy Chief Judge.
   64         Section 2. Subsection (1) and paragraphs (a), (c), and (e)
   65  of subsection (4) of section 440.25, Florida Statutes, are
   66  amended to read:
   67         440.25 Procedures for mediation and hearings.—
   68         (1) Forty days after a petition for benefits is filed under
   69  s. 440.192, the judge of compensation claims shall notify the
   70  interested parties by order that a mediation conference
   71  concerning such petition has been scheduled unless the parties
   72  have notified the judge of compensation claims that a private
   73  mediation has been held or is scheduled to be held. A mediation,
   74  whether private or public, shall be held within 130 days after
   75  the filing of the petition. Such order must give the date the
   76  mediation conference is to be held. Such order may be served
   77  personally upon the interested parties or may be sent to the
   78  interested parties by mail or by electronic means approved by
   79  the Deputy Chief Judge. If multiple petitions are pending, or if
   80  additional petitions are filed after the scheduling of a
   81  mediation, the judge of compensation claims shall consolidate
   82  all petitions into one mediation. The claimant or the adjuster
   83  of the employer or carrier may, at the mediator’s discretion,
   84  attend the mediation conference by telephone or, if agreed to by
   85  the parties, other electronic means. A continuance may be
   86  granted upon the agreement of the parties or if the requesting
   87  party demonstrates to the judge of compensation claims that the
   88  reason for requesting the continuance arises from circumstances
   89  beyond the party’s control. Any order granting a continuance
   90  must set forth the date of the rescheduled mediation conference.
   91  A mediation conference may not be used solely for the purpose of
   92  mediating attorney’s fees.
   93         (4)(a) If the parties fail to agree to written submission
   94  of pretrial stipulations, the judge of compensation claims shall
   95  conduct a live pretrial hearing. The judge of compensation
   96  claims shall give the interested parties at least 14 days’
   97  advance notice of the pretrial hearing by mail or by electronic
   98  means approved by the Deputy Chief Judge.
   99         (c) The judge of compensation claims shall give the
  100  interested parties at least 14 days’ advance notice of the final
  101  hearing, served upon the interested parties by mail or by
  102  electronic means approved by the Deputy Chief Judge.
  103         (e) The order making an award or rejecting the claim,
  104  referred to in this chapter as a “compensation order,” shall set
  105  forth the findings of ultimate facts and the mandate; and the
  106  order need not include any other reason or justification for
  107  such mandate. The compensation order shall be filed in the
  108  Office of the Judges of Compensation Claims at Tallahassee. A
  109  copy of such compensation order shall be sent by mail or by
  110  electronic means approved by the Deputy Chief Judge to the
  111  parties and attorneys of record and any parties not represented
  112  by an attorney at the last known address of each, with the date
  113  of mailing noted thereon.
  114         Section 3. Subsection (3) of section 440.29, Florida
  115  Statutes, is amended to read:
  116         440.29 Procedure before the judge of compensation claims.—
  117         (3) The practice and procedure before the judges of
  118  compensation claims shall be governed by rules adopted by the
  119  Office of the Judges of Compensation Claims Supreme Court,
  120  except to the extent that such rules conflict with the
  121  provisions of this chapter.
  122         Section 4. Subsection (4) of section 440.45, Florida
  123  Statutes, is amended to read:
  124         440.45 Office of the Judges of Compensation Claims.—
  125         (4) The Office of the Judges of Compensation Claims shall
  126  adopt rules to effectuate effect the purposes of this section.
  127  Such rules shall include procedural rules applicable to workers’
  128  compensation claim resolution, including rules requiring
  129  electronic filing and service where deemed appropriate by the
  130  Deputy Chief Judge, and uniform criteria for measuring the
  131  performance of the office, including, but not limited to, the
  132  number of cases assigned and resolved disposed, the age of
  133  pending and resolved disposed cases, timeliness of decisions
  134  decisionmaking, extraordinary fee awards, and other data
  135  necessary for the judicial nominating commission to review the
  136  performance of judges as required in paragraph (2)(c). The
  137  workers’ compensation rules of procedure approved by the Supreme
  138  Court apply until the rules adopted by the Office of the Judges
  139  of Compensation Claims pursuant to this section become
  140  effective.
  141         Section 5. Paragraph (b) of subsection (5) of section
  142  120.54, Florida Statutes, is amended to read:
  143         120.54 Rulemaking.—
  144         (5) UNIFORM RULES.—
  145         (b) The uniform rules of procedure adopted by the
  146  commission pursuant to this subsection shall include, but are
  147  not limited to:
  148         1. Uniform rules for the scheduling of public meetings,
  149  hearings, and workshops.
  150         2. Uniform rules for use by each state agency that provide
  151  procedures for conducting public meetings, hearings, and
  152  workshops, and for taking evidence, testimony, and argument at
  153  such public meetings, hearings, and workshops, in person and by
  154  means of communications media technology. The rules shall
  155  provide that all evidence, testimony, and argument presented
  156  shall be afforded equal consideration, regardless of the method
  157  of communication. If a public meeting, hearing, or workshop is
  158  to be conducted by means of communications media technology, or
  159  if attendance may be provided by such means, the notice shall so
  160  state. The notice for public meetings, hearings, and workshops
  161  utilizing communications media technology shall state how
  162  persons interested in attending may do so and shall name
  163  locations, if any, where communications media technology
  164  facilities will be available. Nothing in this paragraph shall be
  165  construed to diminish the right to inspect public records under
  166  chapter 119. Limiting points of access to public meetings,
  167  hearings, and workshops subject to the provisions of s. 286.011
  168  to places not normally open to the public shall be presumed to
  169  violate the right of access of the public, and any official
  170  action taken under such circumstances is void and of no effect.
  171  Other laws relating to public meetings, hearings, and workshops,
  172  including penal and remedial provisions, shall apply to public
  173  meetings, hearings, and workshops conducted by means of
  174  communications media technology, and shall be liberally
  175  construed in their application to such public meetings,
  176  hearings, and workshops. As used in this subparagraph,
  177  “communications media technology” means the electronic
  178  transmission of printed matter, audio, full-motion video,
  179  freeze-frame video, compressed video, and digital video by any
  180  method available.
  181         3. Uniform rules of procedure for the filing of notice of
  182  protests and formal written protests. The Administration
  183  Commission may prescribe the form and substantive provisions of
  184  a required bond.
  185         4. Uniform rules of procedure for the filing of petitions
  186  for administrative hearings pursuant to s. 120.569 or s. 120.57.
  187  Such rules shall require the petition to include:
  188         a. The identification of the petitioner, including the
  189  petitioner’s e-mail address, if any, for the transmittal of
  190  subsequent documents by electronic means.
  191         b. A statement of when and how the petitioner received
  192  notice of the agency’s action or proposed action.
  193         c. An explanation of how the petitioner’s substantial
  194  interests are or will be affected by the action or proposed
  195  action.
  196         d. A statement of all material facts disputed by the
  197  petitioner or a statement that there are no disputed facts.
  198         e. A statement of the ultimate facts alleged, including a
  199  statement of the specific facts the petitioner contends warrant
  200  reversal or modification of the agency’s proposed action.
  201         f. A statement of the specific rules or statutes that the
  202  petitioner contends require reversal or modification of the
  203  agency’s proposed action, including an explanation of how the
  204  alleged facts relate to the specific rules or statutes.
  205         g. A statement of the relief sought by the petitioner,
  206  stating precisely the action petitioner wishes the agency to
  207  take with respect to the proposed action.
  208         5. Uniform rules for the filing of request for
  209  administrative hearing by a respondent in agency enforcement and
  210  disciplinary actions. Such rules shall require a request to
  211  include:
  212         a. The name, address, e-mail address, and telephone number
  213  of the party making the request and the name, address, e-mail
  214  address, and telephone number of the party’s counsel or
  215  qualified representative upon whom service of pleadings and
  216  other papers shall be made;
  217         b. A statement that the respondent is requesting an
  218  administrative hearing and disputes the material facts alleged
  219  by the petitioner, in which case the respondent shall identify
  220  those material facts that are in dispute, or that the respondent
  221  is requesting an administrative hearing and does not dispute the
  222  material facts alleged by the petitioner; and
  223         c. A reference by file number to the administrative
  224  complaint that the party has received from the agency and the
  225  date on which the agency pleading was received.
  226  
  227  The agency may provide an election-of-rights form for the
  228  respondent’s use in requesting a hearing, so long as any form
  229  provided by the agency calls for the information in sub
  230  subparagraphs a. through c. and does not impose any additional
  231  requirements on a respondent in order to request a hearing,
  232  unless such requirements are specifically authorized by law.
  233         6. Uniform rules of procedure for the filing and prompt
  234  disposition of petitions for declaratory statements. The rules
  235  shall also describe the contents of the notices that must be
  236  published in the Florida Administrative Weekly under s. 120.565,
  237  including any applicable time limit for the filing of petitions
  238  to intervene or petitions for administrative hearing by persons
  239  whose substantial interests may be affected.
  240         7. Provision of a method by which each agency head shall
  241  provide a description of the agency’s organization and general
  242  course of its operations. The rules shall require that the
  243  statement concerning the agency’s organization and operations be
  244  published on the agency’s website.
  245         8. Uniform rules establishing procedures for granting or
  246  denying petitions for variances and waivers pursuant to s.
  247  120.542.
  248         Section 6. Section 120.585, Florida Statutes, is created to
  249  read:
  250         120.585Electronic filing.—Any document filed with the
  251  division by a party represented by an attorney must be filed by
  252  electronic means through the division’s website. Any document
  253  filed with the division by a party who is not represented by an
  254  attorney shall, whenever possible, be filed by electronic means
  255  through the division’s website.
  256         Section 7. Paragraph (b) of subsection (4) of section
  257  57.111, Florida Statutes, is amended to read:
  258         57.111 Civil actions and administrative proceedings
  259  initiated by state agencies; attorneys’ fees and costs.—
  260         (4)
  261         (b)1. To apply for an award under this section, the
  262  attorney for the prevailing small business party must submit an
  263  itemized affidavit to the court which first conducted the
  264  adversarial proceeding in the underlying action, or by
  265  electronic means through the division’s website to the Division
  266  of Administrative Hearings, which shall assign an administrative
  267  law judge, in the case of a proceeding pursuant to chapter 120,
  268  which affidavit shall reveal the nature and extent of the
  269  services rendered by the attorney as well as the costs incurred
  270  in preparations, motions, hearings, and appeals in the
  271  proceeding.
  272         2. The application for an award of attorney’s fees must be
  273  made within 60 days after the date that the small business party
  274  becomes a prevailing small business party.
  275         Section 8. Paragraphs (c) and (d) of subsection (1) of
  276  section 120.56, Florida Statutes, are amended to read:
  277         120.56 Challenges to rules.—
  278         (1) GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A
  279  RULE OR A PROPOSED RULE.—
  280         (c) The petition shall be filed by electronic means with
  281  the division, which shall, immediately upon filing, forward by
  282  electronic means copies to the agency whose rule is challenged,
  283  the Department of State, and the committee. Within 10 days after
  284  receiving the petition, the division director shall, if the
  285  petition complies with the requirements of paragraph (b), assign
  286  an administrative law judge who shall conduct a hearing within
  287  30 days thereafter, unless the petition is withdrawn or a
  288  continuance is granted by agreement of the parties or for good
  289  cause shown. Evidence of good cause includes, but is not limited
  290  to, written notice of an agency’s decision to modify or withdraw
  291  the proposed rule or a written notice from the chair of the
  292  committee stating that the committee will consider an objection
  293  to the rule at its next scheduled meeting. The failure of an
  294  agency to follow the applicable rulemaking procedures or
  295  requirements set forth in this chapter shall be presumed to be
  296  material; however, the agency may rebut this presumption by
  297  showing that the substantial interests of the petitioner and the
  298  fairness of the proceedings have not been impaired.
  299         (d) Within 30 days after the hearing, the administrative
  300  law judge shall render a decision and state the reasons therefor
  301  in writing. The division shall forthwith transmit by electronic
  302  means copies of the administrative law judge’s decision to the
  303  agency, the Department of State, and the committee.
  304         Section 9. Paragraph (a) of subsection (2) of section
  305  120.569, Florida Statutes, is amended to read:
  306         120.569 Decisions which affect substantial interests.—
  307         (2)(a) Except for any proceeding conducted as prescribed in
  308  s. 120.56, a petition or request for a hearing under this
  309  section shall be filed with the agency. If the agency requests
  310  an administrative law judge from the division, it shall so
  311  notify the division by electronic means through the division’s
  312  website within 15 days after receipt of the petition or request.
  313  A request for a hearing shall be granted or denied within 15
  314  days after receipt. On the request of any agency, the division
  315  shall assign an administrative law judge with due regard to the
  316  expertise required for the particular matter. The referring
  317  agency shall take no further action with respect to a proceeding
  318  under s. 120.57(1), except as a party litigant, as long as the
  319  division has jurisdiction over the proceeding under s.
  320  120.57(1). Any party may request the disqualification of the
  321  administrative law judge by filing an affidavit with the
  322  division prior to the taking of evidence at a hearing, stating
  323  the grounds with particularity.
  324         Section 10. Paragraph (d) of subsection (3) of section
  325  120.57, Florida Statutes, is amended to read:
  326         120.57 Additional procedures for particular cases.—
  327         (3) ADDITIONAL PROCEDURES APPLICABLE TO PROTESTS TO
  328  CONTRACT SOLICITATION OR AWARD.—Agencies subject to this chapter
  329  shall use the uniform rules of procedure, which provide
  330  procedures for the resolution of protests arising from the
  331  contract solicitation or award process. Such rules shall at
  332  least provide that:
  333         (d)1. The agency shall provide an opportunity to resolve
  334  the protest by mutual agreement between the parties within 7
  335  days, excluding Saturdays, Sundays, and state holidays, after
  336  receipt of a formal written protest.
  337         2. If the subject of a protest is not resolved by mutual
  338  agreement within 7 days, excluding Saturdays, Sundays, and state
  339  holidays, after receipt of the formal written protest, and if
  340  there is no disputed issue of material fact, an informal
  341  proceeding shall be conducted pursuant to subsection (2) and
  342  applicable agency rules before a person whose qualifications
  343  have been prescribed by rules of the agency.
  344         3. If the subject of a protest is not resolved by mutual
  345  agreement within 7 days, excluding Saturdays, Sundays, and state
  346  holidays, after receipt of the formal written protest, and if
  347  there is a disputed issue of material fact, the agency shall
  348  refer the protest to the division by electronic means through
  349  the division’s website for proceedings under subsection (1).
  350         Section 11. Subsection (1) of section 552.40, Florida
  351  Statutes, is amended to read:
  352         552.40 Administrative remedy for alleged damage due to the
  353  use of explosives in connection with construction materials
  354  mining activities.—
  355         (1) A person may initiate an administrative proceeding to
  356  recover damages resulting from the use of explosives in
  357  connection with construction materials mining activities by
  358  filing a petition with the Division of Administrative Hearings
  359  by electronic means through the division’s website on a form
  360  provided by it and accompanied by a filing fee of $100 within
  361  180 days after the occurrence of the alleged damage. If the
  362  petitioner submits an affidavit stating that the petitioner’s
  363  annual income is less than 150 percent of the applicable federal
  364  poverty guideline published in the Federal Register by the
  365  United States Department of Health and Human Services, the $100
  366  filing fee must be waived.
  367         Section 12. Paragraph (b) of subsection (4) of section
  368  553.73, Florida Statutes, is amended to read:
  369         553.73 Florida Building Code.—
  370         (4)
  371         (b) Local governments may, subject to the limitations of
  372  this section, adopt amendments to the technical provisions of
  373  the Florida Building Code which apply solely within the
  374  jurisdiction of such government and which provide for more
  375  stringent requirements than those specified in the Florida
  376  Building Code, not more than once every 6 months. A local
  377  government may adopt technical amendments that address local
  378  needs if:
  379         1. The local governing body determines, following a public
  380  hearing which has been advertised in a newspaper of general
  381  circulation at least 10 days before the hearing, that there is a
  382  need to strengthen the requirements of the Florida Building
  383  Code. The determination must be based upon a review of local
  384  conditions by the local governing body, which review
  385  demonstrates by evidence or data that the geographical
  386  jurisdiction governed by the local governing body exhibits a
  387  local need to strengthen the Florida Building Code beyond the
  388  needs or regional variation addressed by the Florida Building
  389  Code, that the local need is addressed by the proposed local
  390  amendment, and that the amendment is no more stringent than
  391  necessary to address the local need.
  392         2. Such additional requirements are not discriminatory
  393  against materials, products, or construction techniques of
  394  demonstrated capabilities.
  395         3. Such additional requirements may not introduce a new
  396  subject not addressed in the Florida Building Code.
  397         4. The enforcing agency shall make readily available, in a
  398  usable format, all amendments adopted pursuant to this section.
  399         5. Any amendment to the Florida Building Code shall be
  400  transmitted within 30 days by the adopting local government to
  401  the commission. The commission shall maintain copies of all such
  402  amendments in a format that is usable and obtainable by the
  403  public. Local technical amendments shall not become effective
  404  until 30 days after the amendment has been received and
  405  published by the commission.
  406         6. Any amendment to the Florida Building Code adopted by a
  407  local government pursuant to this paragraph shall be effective
  408  only until the adoption by the commission of the new edition of
  409  the Florida Building Code every third year. At such time, the
  410  commission shall review such amendment for consistency with the
  411  criteria in paragraph (8)(a) and adopt such amendment as part of
  412  the Florida Building Code or rescind the amendment. The
  413  commission shall immediately notify the respective local
  414  government of the rescission of any amendment. After receiving
  415  such notice, the respective local government may readopt the
  416  rescinded amendment pursuant to the provisions of this
  417  paragraph.
  418         7. Each county and municipality desiring to make local
  419  technical amendments to the Florida Building Code shall by
  420  interlocal agreement establish a countywide compliance review
  421  board to review any amendment to the Florida Building Code,
  422  adopted by a local government within the county pursuant to this
  423  paragraph, that is challenged by any substantially affected
  424  party for purposes of determining the amendment’s compliance
  425  with this paragraph. If challenged, the local technical
  426  amendments shall not become effective until time for filing an
  427  appeal pursuant to subparagraph 8. has expired or, if there is
  428  an appeal, until the commission issues its final order
  429  determining the adopted amendment is in compliance with this
  430  subsection.
  431         8. If the compliance review board determines such amendment
  432  is not in compliance with this paragraph, the compliance review
  433  board shall notify such local government of the noncompliance
  434  and that the amendment is invalid and unenforceable until the
  435  local government corrects the amendment to bring it into
  436  compliance. The local government may appeal the decision of the
  437  compliance review board to the commission. If the compliance
  438  review board determines such amendment to be in compliance with
  439  this paragraph, any substantially affected party may appeal such
  440  determination to the commission. Any such appeal shall be filed
  441  with the commission within 14 days of the board’s written
  442  determination. The commission shall promptly refer the appeal to
  443  the Division of Administrative Hearings by electronic means
  444  through the division’s website for the assignment of an
  445  administrative law judge. The administrative law judge shall
  446  conduct the required hearing within 30 days, and shall enter a
  447  recommended order within 30 days of the conclusion of such
  448  hearing. The commission shall enter a final order within 30 days
  449  thereafter. The provisions of chapter 120 and the uniform rules
  450  of procedure shall apply to such proceedings. The local
  451  government adopting the amendment that is subject to challenge
  452  has the burden of proving that the amendment complies with this
  453  paragraph in proceedings before the compliance review board and
  454  the commission, as applicable. Actions of the commission are
  455  subject to judicial review pursuant to s. 120.68. The compliance
  456  review board shall determine whether its decisions apply to a
  457  respective local jurisdiction or apply countywide.
  458         9. An amendment adopted under this paragraph shall include
  459  a fiscal impact statement which documents the costs and benefits
  460  of the proposed amendment. Criteria for the fiscal impact
  461  statement shall include the impact to local government relative
  462  to enforcement, the impact to property and building owners, as
  463  well as to industry, relative to the cost of compliance. The
  464  fiscal impact statement may not be used as a basis for
  465  challenging the amendment for compliance.
  466         10. In addition to subparagraphs 7. and 9., the commission
  467  may review any amendments adopted pursuant to this subsection
  468  and make nonbinding recommendations related to compliance of
  469  such amendments with this subsection.
  470         Section 13. Paragraph (b) of subsection (4) of section
  471  961.03, Florida Statutes, is amended to read:
  472         961.03 Determination of status as a wrongfully incarcerated
  473  person; determination of eligibility for compensation.—
  474         (4)
  475         (b) If the prosecuting authority responds as set forth in
  476  paragraph (2)(b), and the court determines that the petitioner
  477  is eligible under the provisions of s. 961.04, but the
  478  prosecuting authority contests the nature, significance or
  479  effect of the evidence of actual innocence, or the facts related
  480  to the petitioner’s alleged wrongful incarceration, the court
  481  shall set forth its findings and transfer the petition by
  482  electronic means through the division’s website to the division
  483  for findings of fact and a recommended determination of whether
  484  the petitioner has established that he or she is a wrongfully
  485  incarcerated person who is eligible for compensation under this
  486  act.
  487         Section 14. This act shall take effect July 1, 2010.

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