October 19, 2020
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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 257

    Amendment No. ___ (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
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  4  ______________________________________________________________

  5                                           ORIGINAL STAMP BELOW

  6

  7

  8

  9

10  ______________________________________________________________

11  Representative(s) Spratt offered the following:

12

13         Amendment (with title amendment) 

14  Remove everything after the enacting clause

15

16  and insert:

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

18  57.111, Florida Statutes, is amended to read:

19         57.111  Civil actions and administrative proceedings

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

21         (4)

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

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

24  an evidentiary hearing on the application for an award of

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

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

27  of an administrative law judge is reviewable in accordance

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

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

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

31  costs for the appeal.

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 257

    Amendment No. ___ (for drafter's use only)





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

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

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

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

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

  6  120.54, Florida Statutes, is amended to read:

  7         120.54  Rulemaking.--

  8         (5)  UNIFORM RULES.--

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

10  commission pursuant to this subsection shall include, but are

11  not be limited to:

12         1.  Uniform rules for the scheduling of public

13  meetings, hearings, and workshops.

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

15  provide procedures for conducting public meetings, hearings,

16  and workshops, and for taking evidence, testimony, and

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

18  person and by means of communications media technology. The

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

20  presented shall be afforded equal consideration, regardless of

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

22  workshop is to be conducted by means of communications media

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

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

25  hearings, and workshops utilizing communications media

26  technology shall state how persons interested in attending may

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

28  media technology facilities will be available. Nothing in this

29  paragraph shall be construed to diminish the right to inspect

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

31  public meetings, hearings, and workshops subject to the

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 257

    Amendment No. ___ (for drafter's use only)





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

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

  3  public, and any official action taken under such circumstances

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

  5  meetings, hearings, and workshops, including penal and

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

  7  and workshops conducted by means of communications media

  8  technology, and shall be liberally construed in their

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

10  As used in this subparagraph, "communications media

11  technology" means the electronic transmission of printed

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

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

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

15  of protests and formal written protests.

16         4.  Uniform rules of procedure for the filing of

17  petitions for administrative hearings pursuant to s. 120.569

18  or s. 120.57.  Such rules shall include:

19         a.  The identification of the petitioner.

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

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

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

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

24  action.

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

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

27         e.  A statement of The ultimate facts alleged,

28  including a statement of the specific facts the petitioner

29  contends warrant reversal or modification of the agency's

30  proposed action.

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

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 257

    Amendment No. ___ (for drafter's use only)





  1  the petitioner contends require reversal or modification of

  2  the agency's proposed action and a statement explaining how

  3  the alleged facts relate to the specific rules or statutes.

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

  5  stating precisely the action petitioner wishes the agency to

  6  take with respect to the proposed action.

  7         5.  Uniform rules of procedure for the filing and

  8  prompt disposition of petitions for declaratory statements.

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

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

11  general course of its operations.

12         7.  Uniform rules establishing procedures for granting

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

14  120.542.

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

16  120.569, Florida Statutes, is amended, and paragraph (o) is

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

18         120.569  Decisions which affect substantial

19  interests.--

20         (2)

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

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

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

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

25  is not represented by an attorney or qualified representative,

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

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

28  of the signature is corrected promptly after being called to

29  the attention of the attorney, qualified representative, or

30  party.

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

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 257

    Amendment No. ___ (for drafter's use only)





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

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

  3  attorney, qualified representative, or unrepresented party is

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

  5  information, and belief, formed after an inquiry reasonable

  6  under the circumstances:

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

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

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

10  litigation;

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

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

13  warranted by existing law or by a nonfrivolous argument for

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

15  the establishment of new law;

16         c.  The allegations and other factual contentions have

17  evidentiary support or, if specifically identified, are likely

18  to have evidentiary support after a reasonable opportunity for

19  further investigation or discovery; and

20         d.  The denials of factual contentions are warranted on

21  the evidence or, if specifically identified, are reasonably

22  based on lack of information or belief.

23

24  Nothing in this subparagraph shall be construed to prohibit

25  the amendment of a petition during or after discovery.

26         3.  If, after notice and reasonable opportunity to

27  respond, the presiding officer determines that subparagraph 2.

28  has been violated, the presiding officer may impose an

29  appropriate sanction against the person who signed it, the

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

31  the other party or parties the amount of reasonable expenses

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 257

    Amendment No. ___ (for drafter's use only)





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

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

  3         a.  Monetary sanctions may not be awarded against a

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

  5         b.  Monetary sanctions may not be awarded under this

  6  paragraph based on a violation of discovery rules.

  7         c.  Monetary sanctions imposed shall be limited to what

  8  is sufficient to deter repetition of such conduct or

  9  comparable conduct by others similarly situated.

10         d.  An agency may indemnify its attorney for sanctions

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

12  sanction was taken within the scope of employment and the

13  indemnification is in the interest of the agency.

14         e.  This paragraph does not authorize the award of

15  sanctions for the submission of written comments or objections

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

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

18  comments or objections regarding draft permits.

19         4.  Sanctions under this paragraph may be initiated at

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

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

22  describe the specific conduct alleged to violate subparagraph

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

24  representative of a party or an unrepresented party against

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

26  presented to the presiding officer unless, within 21 days

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

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

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

30  rather than withdrawing or correcting the challenged paper,

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

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 257

    Amendment No. ___ (for drafter's use only)





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

  2  the presiding officer within 14 days after service of the

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

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

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

  6  and its written objection with the presiding officer within 14

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

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

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

10  opposition or response, the presiding officer shall

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

12  if the presiding officer considers a hearing warranted based

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

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

15  only after entering an order describing the specific conduct

16  that appears to violate subparagraph 2. and directing the

17  attorney or qualified representative of a party or the

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

19  been violated. When imposing sanctions, the presiding officer

20  shall describe the conduct determined to constitute a

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

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

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

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

25  signature constitutes a certificate that the person has read

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

27  reasonable inquiry, it is not interposed for any improper

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

29  for frivolous purpose or needless increase in the cost of

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

31  violation of these requirements, the presiding officer shall

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 257

    Amendment No. ___ (for drafter's use only)





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

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

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

  4  expenses incurred because of the filing of the pleading,

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

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

  7  judge shall enter an initial scheduling order to facilitate

  8  the just, speedy, and inexpensive determination of the

  9  proceeding. The initial scheduling order shall establish a

10  discovery period, including a deadline by which all discovery

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

12  identify expert witnesses and their opinions. The initial

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

14  a joint report by a date certain.

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

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

17         120.57  Additional procedures for particular cases.--

18         (1)  ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS

19  INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--

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

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

22  party may move the administrative law judge to relinquish

23  jurisdiction to the agency. An order relinquishing

24  jurisdiction shall be rendered if the administrative law judge

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

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

27  interrogatories, and admissions on file, together with

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

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

30  law judge enters an order relinquishing jurisdiction, the

31  agency may promptly conduct a proceeding pursuant to

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 257

    Amendment No. ___ (for drafter's use only)





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

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

  3  the administrative law judge.  An order entered by an

  4  administrative law judge relinquishing jurisdiction to the

  5  agency based upon a determination that no genuine dispute of

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

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

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

  9  the agency and all parties a recommended order consisting of

10  findings of fact, conclusions of law, and recommended

11  disposition or penalty, if applicable, and any other

12  information required by law to be contained in the final

13  order. All proceedings conducted pursuant to this subsection

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

15  which to submit written exceptions to the recommended order.

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

17  identify the disputed portion of the recommended order by page

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

19  the exception, or does not include appropriate and specific

20  citations to the record.

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

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

23  amended to read:

24         120.595  Attorney's fees.--

25         (1)  CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION

26  120.57(1).--

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

28  motion, the administrative law judge shall determine whether

29  any party participated in the proceeding for an improper

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

31  making such determination, the administrative law judge shall

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 257

    Amendment No. ___ (for drafter's use only)





  1  consider whether the nonprevailing adverse party has

  2  participated in two or more other such proceedings involving

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

  4  party and in which such two or more proceedings the

  5  nonprevailing adverse party did not establish either the

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

  7  whether the factual or legal position asserted in the instant

  8  proceeding would have been cognizable in the previous

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

10  that the nonprevailing adverse party participated in the

11  pending proceeding for an improper purpose.

12         (e)  For the purpose of this subsection:

13         1.  "Improper purpose" means participation in a

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

15  cause unnecessary delay or for frivolous purpose or to

16  needlessly increase the cost of litigation, licensing, or

17  securing the approval of an activity.

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

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

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

21  has failed to have substantially changed the outcome of the

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

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

24  substantial modification or condition intended to resolve the

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

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

27  nonprevailing adverse party.  The recommended order shall

28  state whether the change is substantial for purposes of this

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

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

31  intervened in a previously existing proceeding to support the

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 257

    Amendment No. ___ (for drafter's use only)





  1  position of an agency.

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

  3  its discretion may award reasonable attorney's fees and

  4  reasonable costs to the prevailing party if the court finds

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

  6  appellate process, or that the agency action which

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

  8  discretion.  Upon review of agency action that precipitates an

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

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

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

12  a prevailing appellant for the administrative proceeding and

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

14  improperly rejected or modified a conclusion of law or an

15  interpretation of an administrative rule over which it does

16  not have substantive jurisdiction, the court may award

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

18  to the prevailing appellant.

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

20  Statutes, is amended to read:

21         120.60  Licensing.--

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

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

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

25  omissions and request any additional information the agency is

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

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

28  supply additional information unless the agency timely

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

30  application shall be considered complete upon receipt of all

31  requested information and correction of any error or omission

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 257

    Amendment No. ___ (for drafter's use only)





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

  2  for such notification has expired. Every application for a

  3  license shall be approved or denied within 90 days after

  4  receipt of a completed application unless a shorter period of

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

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

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

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

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

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

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

12  whichever action and timeframe is latest and applicable, is

13  considered approved unless the recommended order recommends

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

15  completion of an examination if required as a prerequisite to

16  licensure, any license that is considered approved shall be

17  issued and may include such reasonable conditions as are

18  authorized by law later. The agency must approve any

19  application for a license or for an examination required for

20  licensure if the agency has not approved or denied the

21  application within the time periods prescribed by this

22  subsection.

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

24  Statutes, is amended to read:

25         120.68  Judicial review.--

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

27  invalid exercise of delegated legislative authority shall be

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

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

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

31  procedural fairness prerequisite to the adoption of an

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 257

    Amendment No. ___ (for drafter's use only)





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

  2  presented by the petition is the constitutionality of a rule

  3  and there are no disputed issues of fact.

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

  5  this act shall not affect the outcome of litigation styled

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

  7  2001).

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

  9  law.

10

11

12  ================ T I T L E   A M E N D M E N T ===============

13  And the title is amended as follows:

14         On page 1, lines 3-19,

15  remove:  all of said lines

16

17  and insert:

18         An act relating to administrative procedures;

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

20         limitation on an award of attorney's fees and

21         costs in an action initiated by a state agency;

22         amending s. 120.54, F.S.; revising the Uniform

23         Rules of Procedure; amending s. 120.569, F.S.;

24         revising requirements for pleadings, motions,

25         and other papers filed under the Administrative

26         Procedure Act; providing for sanctions for

27         noncompliance with those requirements;

28         requiring administrative law judge to enter

29         scheduling orders under specified

30         circumstances; amending s. 120.57, F.S.;

31         revising provisions relating to motions to

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                                                   HOUSE AMENDMENT

                                                Bill No. CS/HB 257

    Amendment No. ___ (for drafter's use only)





  1         relinquish jurisdiction; prohibiting agencies

  2         from granting exceptions to a recommended order

  3         under specified circumstances; amending s.

  4         120.595, F.S.; redefining the term "improper

  5         purpose" for determining an award of attorney's

  6         fees; specifying grounds for the award of

  7         attorney's fees and costs of an appeal;

  8         amending s. 120.60, F.S.; revising provisions

  9         relating to applications for licenses; amending

10         s. 120.68, F.S.; prescribing exceptions to the

11         prohibition against petitions challenging rules

12         as an invalid exercise of delegated legislative

13         authority; providing legislative intent;

14         providing an effective date.

15

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