Bill Text: FL S1696 | 2013 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Governmental Procedures and Legal Proceedings

Spectrum: Bipartisan Bill

Status: (Failed) 2013-05-03 - Died in Judiciary [S1696 Detail]

Download: Florida-2013-S1696-Introduced.html

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       Florida Senate - 2013                                    SB 1696
       
       
       
       By Senator Brandes
       
       
       
       
       22-00843A-13                                          20131696__
    1                        A bill to be entitled                      
    2         An act relating to administrative procedures; amending
    3         s. 120.52, F.S.; defining the term “small business” as
    4         used in the Administrative Procedure Act; amending s.
    5         120.56, F.S.; providing that the agency has the burden
    6         of proof in proceedings challenging the validity of
    7         existing rules and unadopted agency statements;
    8         amending s. 120.595, F.S.; removing certain exceptions
    9         from requirements that attorney fees and costs be
   10         rendered against the agency in proceedings in which
   11         the petitioner prevails in a challenge to an unadopted
   12         agency statement; amending s. 120.573, F.S.;
   13         authorizing any party to request mediation of rule
   14         challenge and declaratory statement proceedings;
   15         amending s. 120.695, F.S.; removing obsolete
   16         provisions with respect to required agency review and
   17         designation of minor violations; amending ss.
   18         420.9072, 420.9075, and 443.091, F.S.; conforming
   19         cross-references; providing an effective date.
   20  
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Present subsections (18) through (22) of section
   24  120.52, Florida Statutes, are renumbered as subsections (19)
   25  through (23), respectively, and a new subsection (18) is added
   26  to that section, to read:
   27         120.52 Definitions.—As used in this act:
   28         (18) “Small business” has the same meaning as provided in
   29  s. 288.703.
   30         Section 2. Paragraph (a) of subsection (3) and paragraph
   31  (b) of subsection (4) of section 120.56, Florida Statutes, are
   32  amended to read:
   33         120.56 Challenges to rules.—
   34         (3) CHALLENGING EXISTING RULES; SPECIAL PROVISIONS.—
   35         (a) A substantially affected person may seek an
   36  administrative determination of the invalidity of an existing
   37  rule at any time during the existence of the rule. The
   38  petitioner has the a burden of going forward. The agency then
   39  has the burden to prove proving by a preponderance of the
   40  evidence that the existing rule is not an invalid exercise of
   41  delegated legislative authority as to the objections raised.
   42         (4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES; SPECIAL
   43  PROVISIONS.—
   44         (b) The administrative law judge may extend the hearing
   45  date beyond 30 days after assignment of the case for good cause.
   46  Upon notification to the administrative law judge provided
   47  before the final hearing that the agency has published a notice
   48  of rulemaking under s. 120.54(3), such notice shall
   49  automatically operate as a stay of proceedings pending adoption
   50  of the statement as a rule. The administrative law judge may
   51  vacate the stay for good cause shown. A stay of proceedings
   52  pending rulemaking shall remain in effect so long as the agency
   53  is proceeding expeditiously and in good faith to adopt the
   54  statement as a rule. The petitioner has the burden of going
   55  forward. If a hearing is held and the petitioner proves the
   56  allegations of the petition, The agency then has shall have the
   57  burden to prove by a preponderance of the evidence that the
   58  statement does not constitute a rule under s. 120.52, that the
   59  agency adopted the statement by the rulemaking procedure
   60  provided by s. 120.54, or of proving that rulemaking is not
   61  feasible or not practicable under s. 120.54(1)(a).
   62         Section 3. Section 120.595, Florida Statutes, is amended to
   63  read:
   64         120.595 Attorney Attorney’s fees.—
   65         (1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
   66  120.57(1).—
   67         (a) The provisions of this subsection are supplemental to,
   68  and do not abrogate, other provisions allowing the award of fees
   69  or costs in administrative proceedings.
   70         (b) The final order in a proceeding pursuant to s.
   71  120.57(1) shall award reasonable costs and a reasonable attorney
   72  fees attorney’s fee to the prevailing party only where the
   73  nonprevailing adverse party has been determined by the
   74  administrative law judge to have participated in the proceeding
   75  for an improper purpose.
   76         (c) In proceedings pursuant to s. 120.57(1), and upon
   77  motion, the administrative law judge shall determine whether any
   78  party participated in the proceeding for an improper purpose as
   79  defined by this subsection. In making such determination, the
   80  administrative law judge shall consider whether the
   81  nonprevailing adverse party has participated in two or more
   82  other such proceedings involving the same prevailing party and
   83  the same project as an adverse party and in which such two or
   84  more proceedings the nonprevailing adverse party did not
   85  establish either the factual or legal merits of its position,
   86  and shall consider whether the factual or legal position
   87  asserted in the instant proceeding would have been cognizable in
   88  the previous proceedings. In such event, it shall be rebuttably
   89  presumed that the nonprevailing adverse party participated in
   90  the pending proceeding for an improper purpose.
   91         (d) In any proceeding in which the administrative law judge
   92  determines that a party participated in the proceeding for an
   93  improper purpose, the recommended order shall so designate and
   94  shall determine the award of costs and attorney attorney’s fees.
   95         (e) For the purpose of this subsection:
   96         1. “Improper purpose” means participation in a proceeding
   97  pursuant to s. 120.57(1) primarily to harass or to cause
   98  unnecessary delay or for frivolous purpose or to needlessly
   99  increase the cost of litigation, licensing, or securing the
  100  approval of an activity.
  101         2. “Costs” has the same meaning as the costs allowed in
  102  civil actions in this state as provided in chapter 57.
  103         3. “Nonprevailing adverse party” means a party that has
  104  failed to have substantially changed the outcome of the proposed
  105  or final agency action which is the subject of a proceeding. In
  106  the event that a proceeding results in any substantial
  107  modification or condition intended to resolve the matters raised
  108  in a party’s petition, it shall be determined that the party
  109  having raised the issue addressed is not a nonprevailing adverse
  110  party. The recommended order shall state whether the change is
  111  substantial for purposes of this subsection. In no event shall
  112  the term “nonprevailing party” or “prevailing party” be deemed
  113  to include any party that has intervened in a previously
  114  existing proceeding to support the position of an agency.
  115         (2) CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO SECTION
  116  120.56(2).—If the appellate court or administrative law judge
  117  declares a proposed rule or portion of a proposed rule invalid
  118  pursuant to s. 120.56(2), a judgment or order shall be rendered
  119  against the agency for reasonable costs and reasonable attorney
  120  attorney’s fees, unless the agency demonstrates that its actions
  121  were substantially justified or special circumstances exist
  122  which would make the award unjust. An agency’s actions are
  123  “substantially justified” if there was a reasonable basis in law
  124  and fact at the time the actions were taken by the agency. If
  125  the agency prevails in the proceedings, the appellate court or
  126  administrative law judge shall award reasonable costs and
  127  reasonable attorney attorney’s fees against a party if the
  128  appellate court or administrative law judge determines that a
  129  party participated in the proceedings for an improper purpose as
  130  defined by paragraph (1)(e). An No award of attorney attorney’s
  131  fees as provided by this subsection may not shall exceed
  132  $50,000.
  133         (3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO SECTION
  134  120.56(3) AND (5).—If the appellate court or administrative law
  135  judge declares a rule or portion of a rule invalid pursuant to
  136  s. 120.56(3) or (5), a judgment or order shall be rendered
  137  against the agency for reasonable costs and reasonable attorney
  138  attorney’s fees, unless the agency demonstrates that its actions
  139  were substantially justified or special circumstances exist
  140  which would make the award unjust. An agency’s actions are
  141  “substantially justified” if there was a reasonable basis in law
  142  and fact at the time the actions were taken by the agency. If
  143  the agency prevails in the proceedings, the appellate court or
  144  administrative law judge shall award reasonable costs and
  145  reasonable attorney attorney’s fees against a party if the
  146  appellate court or administrative law judge determines that a
  147  party participated in the proceedings for an improper purpose as
  148  defined by paragraph (1)(e). An No award of attorney attorney’s
  149  fees as provided by this subsection may not shall exceed
  150  $50,000.
  151         (4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
  152  120.56(4).—
  153         (a) If the appellate court or administrative law judge
  154  determines that all or part of an agency statement violates s.
  155  120.54(1)(a), or that the agency must immediately discontinue
  156  reliance on the statement and any substantially similar
  157  statement pursuant to s. 120.56(4)(e), a judgment or order shall
  158  be entered against the agency for reasonable costs and
  159  reasonable attorney attorney’s fees, unless the agency
  160  demonstrates that the statement is required by the Federal
  161  Government to implement or retain a delegated or approved
  162  program or to meet a condition to receipt of federal funds.
  163         (b) Upon notification to the administrative law judge
  164  provided before the final hearing that the agency has published
  165  a notice of rulemaking under s. 120.54(3)(a), such notice shall
  166  automatically operate as a stay of proceedings pending
  167  rulemaking. The administrative law judge may vacate the stay for
  168  good cause shown. A stay of proceedings under this paragraph
  169  remains in effect so long as the agency is proceeding
  170  expeditiously and in good faith to adopt the statement as a
  171  rule. The administrative law judge shall award reasonable costs
  172  and reasonable attorney attorney’s fees accrued by the
  173  petitioner before prior to the date the notice was published,
  174  unless the agency proves to the administrative law judge that it
  175  did not know and should not have known that the statement was an
  176  unadopted rule. Attorneys’ fees and costs under this paragraph
  177  and paragraph (a) shall be awarded only upon a finding that the
  178  agency received notice that the statement may constitute an
  179  unadopted rule at least 30 days before a petition under s.
  180  120.56(4) was filed and that the agency failed to publish the
  181  required notice of rulemaking pursuant to s. 120.54(3) that
  182  addresses the statement within that 30-day period. Notice to the
  183  agency may be satisfied by its receipt of a copy of the s.
  184  120.56(4) petition, a notice or other paper containing
  185  substantially the same information, or a petition filed pursuant
  186  to s. 120.54(7). An award of attorney attorney’s fees as
  187  provided by this paragraph may not exceed $50,000.
  188         (c) Notwithstanding the provisions of chapter 284, an award
  189  shall be paid from the budget entity of the secretary, executive
  190  director, or equivalent administrative officer of the agency,
  191  and the agency is shall not be entitled to payment of an award
  192  or reimbursement for payment of an award under any provision of
  193  law.
  194         (d) If the agency prevails in the proceedings, the
  195  appellate court or administrative law judge shall award
  196  reasonable costs and attorney attorney’s fees against a party if
  197  the appellate court or administrative law judge determines that
  198  the party participated in the proceedings for an improper
  199  purpose as defined in paragraph (1)(e) or that the party or the
  200  party’s attorney knew or should have known that a claim was not
  201  supported by the material facts necessary to establish the claim
  202  or would not be supported by the application of then-existing
  203  law to those material facts.
  204         (5) APPEALS.—When there is an appeal, the court in its
  205  discretion may award reasonable attorney attorney’s fees and
  206  reasonable costs to the prevailing party if the court finds that
  207  the appeal was frivolous, meritless, or an abuse of the
  208  appellate process, or that the agency action which precipitated
  209  the appeal was a gross abuse of the agency’s discretion. Upon
  210  review of agency action that precipitates an appeal, if the
  211  court finds that the agency improperly rejected or modified
  212  findings of fact in a recommended order, the court shall award
  213  reasonable attorney attorney’s fees and reasonable costs to a
  214  prevailing appellant for the administrative proceeding and the
  215  appellate proceeding.
  216         (6) OTHER SECTIONS NOT AFFECTED.—Other provisions,
  217  including ss. 57.105 and 57.111, authorize the award of attorney
  218  attorney’s fees and costs in administrative proceedings. Nothing
  219  in This section does not shall affect the availability of
  220  attorney attorney’s fees and costs as provided in those
  221  sections.
  222         Section 4. Section 120.573, Florida Statutes, is amended to
  223  read:
  224         120.573 Mediation of disputes.—
  225         (1) Each announcement of an agency action that affects
  226  substantial interests shall advise whether mediation of the
  227  administrative dispute for the type of agency action announced
  228  is available and that choosing mediation does not affect the
  229  right to an administrative hearing. If the agency and all
  230  parties to the administrative action agree to mediation, in
  231  writing, within 10 days after the time period stated in the
  232  announcement for election of an administrative remedy under ss.
  233  120.569 and 120.57, the time limitations imposed by ss. 120.569
  234  and 120.57 shall be tolled to allow the agency and parties to
  235  mediate the administrative dispute. The mediation shall be
  236  concluded within 60 days of such agreement unless otherwise
  237  agreed by the parties. The mediation agreement shall include
  238  provisions for mediator selection, the allocation of costs and
  239  fees associated with mediation, and the mediating parties’
  240  understanding regarding the confidentiality of discussions and
  241  documents introduced during mediation. If mediation results in
  242  settlement of the administrative dispute, the agency shall enter
  243  a final order incorporating the agreement of the parties. If
  244  mediation terminates without settlement of the dispute, the
  245  agency shall notify the parties in writing that the
  246  administrative hearing processes under ss. 120.569 and 120.57
  247  are resumed.
  248         (2) Any party to a proceeding conducted pursuant to a
  249  petition seeking an administration determination of the
  250  invalidity of an existing rule, proposed rule, or unadopted
  251  agency statement under s. 120.56 or a proceeding conducted
  252  pursuant to a petition seeking a declaratory statement under s.
  253  120.565 may request mediation of the dispute under this section.
  254         Section 5. Subsection (2) of section 120.695, Florida
  255  Statutes, is amended to read:
  256         120.695 Notice of noncompliance.—
  257         (2)(a) Each agency shall issue a notice of noncompliance as
  258  a first response to a minor violation of a rule. A “notice of
  259  noncompliance” is a notification by the agency charged with
  260  enforcing the rule issued to the person or business subject to
  261  the rule. A notice of noncompliance may not be accompanied with
  262  a fine or other disciplinary penalty. It must identify the
  263  specific rule that is being violated, provide information on how
  264  to comply with the rule, and specify a reasonable time for the
  265  violator to comply with the rule. A rule is agency action that
  266  regulates a business, occupation, or profession, or regulates a
  267  person operating a business, occupation, or profession, and
  268  that, if not complied with, may result in a disciplinary
  269  penalty.
  270         (b) Each agency shall review all of its rules and designate
  271  those for which A violation would be a minor violation and for
  272  which a notice of noncompliance must be the first enforcement
  273  action taken against a person or business subject to regulation.
  274  A violation of a rule is a minor violation if it does not result
  275  in economic or physical harm to a person or adversely affect the
  276  public health, safety, or welfare or create a significant threat
  277  of such harm. If an agency under the direction of a cabinet
  278  officer mails to each licensee a notice of the designated rules
  279  at the time of licensure and at least annually thereafter, the
  280  provisions of paragraph (a) may be exercised at the discretion
  281  of the agency. Such notice shall include a subject-matter index
  282  of the rules and information on how the rules may be obtained.
  283         (c) The agency’s review and designation must be completed
  284  by December 1, 1995; each agency under the direction of the
  285  Governor shall make a report to the Governor, and each agency
  286  under the joint direction of the Governor and Cabinet shall
  287  report to the Governor and Cabinet by January 1, 1996, on which
  288  of its rules have been designated as rules the violation of
  289  which would be a minor violation.
  290         (d) The Governor or the Governor and Cabinet, as
  291  appropriate pursuant to paragraph (c), may evaluate the review
  292  and designation effects of each agency and may apply a different
  293  designation than that applied by the agency.
  294         (c)(e) This section does not apply to the regulation of law
  295  enforcement personnel or teachers.
  296         (f) Designation pursuant to this section is not subject to
  297  challenge under this chapter.
  298         Section 6. Paragraph (a) of subsection (1) of section
  299  420.9072, Florida Statutes, is amended to read:
  300         420.9072 State Housing Initiatives Partnership Program.—The
  301  State Housing Initiatives Partnership Program is created for the
  302  purpose of providing funds to counties and eligible
  303  municipalities as an incentive for the creation of local housing
  304  partnerships, to expand production of and preserve affordable
  305  housing, to further the housing element of the local government
  306  comprehensive plan specific to affordable housing, and to
  307  increase housing-related employment.
  308         (1)(a) In addition to the legislative findings set forth in
  309  s. 420.6015, the Legislature finds that affordable housing is
  310  most effectively provided by combining available public and
  311  private resources to conserve and improve existing housing and
  312  provide new housing for very-low-income households, low-income
  313  households, and moderate-income households. The Legislature
  314  intends to encourage partnerships in order to secure the
  315  benefits of cooperation by the public and private sectors and to
  316  reduce the cost of housing for the target group by effectively
  317  combining all available resources and cost-saving measures. The
  318  Legislature further intends that local governments achieve this
  319  combination of resources by encouraging active partnerships
  320  between government, lenders, builders and developers, real
  321  estate professionals, advocates for low-income persons, and
  322  community groups to produce affordable housing and provide
  323  related services. Extending the partnership concept to encompass
  324  cooperative efforts among small counties as defined in s. 120.52
  325  120.52(19), and among counties and municipalities is
  326  specifically encouraged. Local governments are also intended to
  327  establish an affordable housing advisory committee to recommend
  328  monetary and nonmonetary incentives for affordable housing as
  329  provided in s. 420.9076.
  330         Section 7. Subsection (7) of section 420.9075, Florida
  331  Statutes, is amended to read:
  332         420.9075 Local housing assistance plans; partnerships.—
  333         (7) The moneys deposited in the local housing assistance
  334  trust fund shall be used to administer and implement the local
  335  housing assistance plan. The cost of administering the plan may
  336  not exceed 5 percent of the local housing distribution moneys
  337  and program income deposited into the trust fund. A county or an
  338  eligible municipality may not exceed the 5-percent limitation on
  339  administrative costs, unless its governing body finds, by
  340  resolution, that 5 percent of the local housing distribution
  341  plus 5 percent of program income is insufficient to adequately
  342  pay the necessary costs of administering the local housing
  343  assistance plan. The cost of administering the program may not
  344  exceed 10 percent of the local housing distribution plus 5
  345  percent of program income deposited into the trust fund, except
  346  that small counties, as defined in s. 120.52 120.52(19), and
  347  eligible municipalities receiving a local housing distribution
  348  of up to $350,000 may use up to 10 percent of program income for
  349  administrative costs.
  350         Section 8. Paragraph (d) of subsection (1) of section
  351  443.091, Florida Statutes, is amended to read:
  352         443.091 Benefit eligibility conditions.—
  353         (1) An unemployed individual is eligible to receive
  354  benefits for any week only if the Department of Economic
  355  Opportunity finds that:
  356         (d) She or he is able to work and is available for work. In
  357  order to assess eligibility for a claimed week of unemployment,
  358  the department shall develop criteria to determine a claimant’s
  359  ability to work and availability for work. A claimant must be
  360  actively seeking work in order to be considered available for
  361  work. This means engaging in systematic and sustained efforts to
  362  find work, including contacting at least five prospective
  363  employers for each week of unemployment claimed. The department
  364  may require the claimant to provide proof of such efforts to the
  365  one-stop career center as part of reemployment services. The
  366  department shall conduct random reviews of work search
  367  information provided by claimants. As an alternative to
  368  contacting at least five prospective employers for any week of
  369  unemployment claimed, a claimant may, for that same week, report
  370  in person to a one-stop career center to meet with a
  371  representative of the center and access reemployment services of
  372  the center. The center shall keep a record of the services or
  373  information provided to the claimant and shall provide the
  374  records to the department upon request by the department.
  375  However:
  376         1. Notwithstanding any other provision of this paragraph or
  377  paragraphs (b) and (e), an otherwise eligible individual may not
  378  be denied benefits for any week because she or he is in training
  379  with the approval of the department, or by reason of s.
  380  443.101(2) relating to failure to apply for, or refusal to
  381  accept, suitable work. Training may be approved by the
  382  department in accordance with criteria prescribed by rule. A
  383  claimant’s eligibility during approved training is contingent
  384  upon satisfying eligibility conditions prescribed by rule.
  385         2. Notwithstanding any other provision of this chapter, an
  386  otherwise eligible individual who is in training approved under
  387  s. 236(a)(1) of the Trade Act of 1974, as amended, may not be
  388  determined ineligible or disqualified for benefits due to
  389  enrollment in such training or because of leaving work that is
  390  not suitable employment to enter such training. As used in this
  391  subparagraph, the term “suitable employment” means work of a
  392  substantially equal or higher skill level than the worker’s past
  393  adversely affected employment, as defined for purposes of the
  394  Trade Act of 1974, as amended, the wages for which are at least
  395  80 percent of the worker’s average weekly wage as determined for
  396  purposes of the Trade Act of 1974, as amended.
  397         3. Notwithstanding any other provision of this section, an
  398  otherwise eligible individual may not be denied benefits for any
  399  week because she or he is before any state or federal court
  400  pursuant to a lawfully issued summons to appear for jury duty.
  401         4. Union members who customarily obtain employment through
  402  a union hiring hall may satisfy the work search requirements of
  403  this paragraph by reporting daily to their union hall.
  404         5. The work search requirements of this paragraph do not
  405  apply to persons who are unemployed as a result of a temporary
  406  layoff or who are claiming benefits under an approved short-time
  407  compensation plan as provided in s. 443.1116.
  408         6. In small counties as defined in s. 120.52 120.52(19), a
  409  claimant engaging in systematic and sustained efforts to find
  410  work must contact at least three prospective employers for each
  411  week of unemployment claimed.
  412         Section 9. This act shall take effect July 1, 2013.