Bill Text: FL S7074 | 2010 | Regular Session | Introduced
Bill Title: Electronic Filing/Administrative Hearings Division
Spectrum: Unknown
Status: (N/A - Dead) 2010-02-16 - Submit as committee bill by Governmental Oversight and Accountability (SB 2124) [S7074 Detail]
Download: Florida-2010-S7074-Introduced.html
Florida Senate - 2010 (PROPOSED COMMITTEE BILL) SPB 7074 FOR CONSIDERATION By the Committee on Governmental Oversight and Accountability 585-00893A-10 20107074__ 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, fileby certified mail, or by electronic means32approved 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 111parties andattorneys 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 ClaimsSupreme 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 effectuateeffectthe 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 resolveddisposed, the age of 133 pending and resolveddisposedcases, timeliness of decisions 134decisionmaking, 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).The137workers’ compensation rules of procedure approved by the Supreme138Court apply until the rules adopted by the Office of the Judges139of Compensation Claims pursuant to this section become140effective.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: 250 120.585 Electronic 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.