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JOINT ADMINISTRATIVE PROCEDURES COMMITTEE

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JOINT ADMINISTRATIVE PROCEDURES COMMITTEE Powered By Docstoc
					  THE FLORIDA LEGISLATURE



           JOINT
ADMINISTRATIVE
 PROCEDURES
  COMMITTEE

2006 Annual Report

       Room 120, Holland Building
        600 South Calhoun Street
     Tallahassee, Florida 32399-1300
          Phone: (850) 488-9110
 joint.admin.procedures@leg.state.fl.us
           www.japc.state.fl.us
                        TABLE OF CONTENTS


Membership of the Joint Administrative Procedures Committee ..................1

Purpose of the Joint Administrative Procedures Committee.........................2

Statistical Information on Committee Review of Rules .................................4

Proposed Rules
   1997 - 2006 ..............................................................................................9

Emergency Rules
  1997 - 2006 ............................................................................................14

Legislative Report - 2006 Session Changes in Chapter 120 ......................19

Committee Review of Existing Rules and Statutes .....................................21

Exemptions Granted to Chapter 120...........................................................23

2006 Objection Reports ..............................................................................24

Administrative Determinations and Petitions for Judicial Review ...............27

Section 11.60, Florida Statutes
Administrative Procedures Committee........................................................30

Chapter 120, Florida Statutes
Administrative Procedure Act......................................................................31
 JOINT ADMINISTRATIVE
PROCEDURES COMMITTEE
       MEMBERS


 Senator Michael S. “Mike” Bennett, Chair

        Senator M. Mandy Dawson

            Senator Don Gaetz




                       Representative Greg Evers, Vice - Chair

                             Representative D. Alan Hays

                            Representative Scott Randolph
  THE JOINT ADMINISTRATIVE PROCEDURES COMMITTEE


T  he      Administrative    Procedures
   Committee is a joint standing
committee of the Legislature created by
                                                   of last resort. Following each session of
                                                   the Legislature, the Committee reviews
                                                   each law signed by the Governor or
Section 11.60, F.S.                                allowed to become law without his
                                                   signature and determines whether the law
It is composed of six members, three               will have a probable effect on an agency's
from the Senate, appointed by the                  rules.    If so, the affected agency is
President of the Senate, and three                 notified.
from the House of Representatives,
appointed by the Speaker of the
House.                                             I f the reviewing attorneys have concerns
                                                     that a proposed or existing rule may not
                                                   be authorized or exceeds the delegated
                                                   rulemaking authority, the agency is
The Chair of the Committee is designated
                                                   contacted. Often, the agency agrees that
by the President of the Senate in
                                                   there is no authority for the rule and
even-numbered years and by the Speaker
                                                   withdraws or amends the rule to meet the
of the House in odd-numbered years.
                                                                staff concerns.      If there is
The Committee staff is
                                                                disagreement about whether
headed by an Executive
                                                                or not there is authority for the
Director    and    General
                                                                rule, the rule is scheduled for
Counsel, and currently
                                                                consideration by the full
consists of seven attorneys
                                                                Committee. The agency may
and five administrative
                                                                appear before the Committee
support staff.
                                                                and present argument and
                                                                evidence in support of its rule.
                                                                If, after hearing the agency's
T   he     Committee
    required    to
                           is
                       report
annually to the Legislature.
                                                                argument, the Committee
                                                                does      not   find    statutory
                                                                authority for the rule, an
This report is published at the start of the
                                                   objection is voted and the agency has a
regular session and covers the preceding
                                                   statutory period in which to respond. If
calendar year.      It contains statistical
                                                   the agency refuses to modify or withdraw
information regarding rulemaking in the
                                                   a rule to which the Committee has
various state agencies as well as
                                                   objected, public notice of the objection is
summaries of all objections voted by the
                                                   given and a notation accompanies the
Committee during the preceding year.
                                                   rule when it appears in the Florida
                                                   Administrative Code.

T   he Committee maintains a continuous
    review of the statutory authority upon
which each administrative rule is based
                                                   In the event that an agency fails to
                                                    initiate administrative action to meet an
                                                   objection voted by the Committee, the
and notifies the agency if its authority is
                                                   Committee is authorized to submit to the
eliminated or significantly changed by
                                                   President of the Senate and Speaker of
repeal, amendment or holding of a court

                                               2
the House a recommendation that                   unadopted rules by agencies, legislation
legislation be introduced to modify or            is recommended for the 2007 session to
suspend the adoption of a proposed rule,          strengthen the unadopted rule challenge
or amend or repeal an existing rule. If the       provisions of the Act. Legislation is also
Committee votes to recommend the                  recommended to require electronic
introduction of legislation, the Committee        publication of the Florida Administrative
is required to notify the agency of its           Code and prescribe the requirements for
action, and may request that the agency           material incorporated by reference in
temporarily suspend the rule or suspend           electronic form in agency rules.
the adoption of a proposed rule, pending
consideration of proposed legislation
during the next regular session of the
Legislature. The agency must respond to
                                                  S   ubsection 11.60(4), F.S., directs the
                                                      Committee to maintain a continuous
                                                  review of the Florida Statutes that
the Committee within a specified time             authorize agencies to adopt rules, and to
either by temporarily suspending the rule         make       recommendations      to     the
or suspending the adoption of a proposed          appropriate standing committees of the
rule, or by notifying the Committee that it       Senate and the House of Representatives
refuses to suspend the rule or rule               as to the advisability of considering
adoption. The Committee is required to            changes to the delegated legislative
prepare bills to modify or suspend the            authority to adopt rules in specific
adoption of a proposed rule, or to amend          circumstances. This report contains a
or repeal an existing rule, in accordance         summary of the areas of concern brought
with rules of the Senate and the House of         to the attention of standing committees in
Representatives for introduction in the           2006.
next regular legislative session.      The
proposed bill is presented to the Senate
President and House Speaker along with
the Committee recommendation.
                                                  T   he Committee has long had standing
                                                      to seek judicial review of the validity of
                                                  any rule to which it has objected and
                                                  which has not been modified or repealed
The Committee constantly monitors                 to meet the objection. To date, the
judicial decisions in administrative              Committee has never found it necessary
law and advises the agency when                   to exercise this power. Before judicial
either   its   statutory   rulemaking             review, the Committee must first notify the
authority or its rules are affected by            head of the agency involved, notify the
                                                  Governor, and provide an opportunity for
these decisions.
                                                  consultation with the Committee. If the
                                                  issue cannot be resolved in this manner,
T   he Committee has a statutory duty to
    recommend needed changes in the
Administrative Procedure Act to the
                                                  the Committee can bring an action in the
                                                  appropriate court asking that the rule be
                                                  declared invalid.
Legislature.    These recommendations
may be based upon its review of judicial
decisions as well as its daily interaction        Thus, the Committee performs
with executive agencies and with citizens         services for the Legislature, the
as they participate in the administrative         administrative agencies of the state
procedures of the state. As the result of a       and the people whom they regulate.
two-year Committee study on the use of


                                              3
             THE FLORIDA LEGISLATURE
            Joint Administrative
           Procedures Committee
               2006 Annual Report




   Statistical
  Information
 on Committee
Review of Rules
                  NUMBER OF RULES UNDER REVIEW 1997 - 2006

    5000


    4500


    4000


    3500


    3000


    2500




4
    2000


    1500


    1000


    500


      0
           1997    1998   1999      2000     2001   2002   2003       2004   2005   2006


                          NEW RULES, AMENDMENTS,                  REPEALS
                          AND EXISTING RULES
                                   SUBSTANTIVE ERROR RATE
                              ERRORS AS A PERCENT OF RULES CLOSED BY YEAR

              70%




              60%




              50%




              40%




5
              30%




    PERCENT
              20%




              10%




              0%
                1997   1998       1999    2000    2001          2002   2003   2004   2005   2006

                                                         YEAR
                          TYPES OF SUBSTANTIVE ERRORS - 2006

                                              OTHER
                                               9%     UNBRIDLED
                                                      DISCRETION
     This graph represents errors                         19%
    found and corrected during the
         staff review process.




                                                               IMPROPER
                                                              DELEGATION




6
                                                                  9%
                   VAGUE
                    33%




                                                           NO STATUTORY
                                                            AUTHORITY
                                                                29%
                               UNAUTHORIZED
                                   OATH
                                    1%
                                        TECHNICAL ERROR RATE
                              ERRORS AS A PERCENT OF RULES CLOSED BY YEAR
              70%




              60%




              50%




              40%




7
    PERCENT
              30%




              20%




              10%




              0%
                1997   1998      1999      2000   2001          2002   2003   2004   2005   2006

                                                         YEAR
              TYPES OF TECHNICAL ERRORS - 2006
                         NOTICE
                                   AUTHORITY
           PARAPHRASE      8%
                                    CITATION
               1%
                                       12%


        CROSS
      REFERENCES                               FILING OMISSIONS
          19%                                         13%


                                                   This graph represents errors




8
                                                  found and corrected during the
                                                       staff review process




    TIME FRAMES
         2%                                    INCORPORATION
                                                    18%




                   EDITING           STRUCTURE
                    24%                 3%
            THE FLORIDA LEGISLATURE
           Joint Administrative
          Procedures Committee
              2006 Annual Report




Proposed Rules
 (1997 - 2006)
                     PROPOSED RULES 1997 THROUGH 2006
    CHPT #   AGENCY                      1997   1998   1999   2000   2001   2002   2003   2004   2005   2006   TOTAL

    01       State                        114    34      14     22     25     42     17      9     23      8    308

    02       Legal Affairs                 16    25      12      2      7      1     11      9      2      4     89

    03       Banking and Finance          207   110      89     57     88     61     21      0      3      0    636

    04       Insurance                    145   229      64    173    350    186     60      0      0      0   1,207

    05       Agriculture and Consumer      62   133      70    105     70    100     83     79     70     96    868
             Services

    06       Education                    144   350     334    299    131    429    254    253    138     62   2,394

    07       Business Regulation            3     0       0      0      0      0      0      0      0      0      3

    08       Commerce                       0     0       0      0      0      0      0      0      0      0      0




9
    09       Community Affairs            197   109      59    144    104     49     56     49     53     37    857

    10       Health and Rehabilitative    146     8       0      0      0      0      0      0      0      0    154
             Services

    11       Law Enforcement                0     0     232     64     73    105     10     77     45     49    655

    12       Revenue                       84   163     110     53    158     95    131     35     34     61    924

    13       General Services               0    17       0      0      0      0      0      0      0      0     17

    14       Transportation               111    88      42     38     72     89     61     80     56     43    680

    15       Highway Safety and Motor      12    45       0      1      0      1     14     15      0     16    104
             Vehicles

    16       Natural Resources             28     0       0      0      0      0      0     24      0      0     52

    17       Environmental Regulation      15     0       0     14      0      0      0      0      0      0     29
                       PROPOSED RULES 1997 THROUGH 2006
     CHPT #   AGENCY                         1997   1998   1999   2000   2001   2002   2003   2004   2005   2006   TOTAL

     18       Board of Trustees of the         11    11       1      0     17     13     21     11      0      0     85
              Internal Improvement Trust
              Fund

     19       State Board of                   39    21      23     47     31     40     16     28     28     20    293
              Administration

     20       Citrus                           91    43      24     25     37     16     33      5     16      9    299

     21       Professional Regulation           0     0       0      0      0      1      0      0      0      0      1

     22       Administration                   22     0       0      0      0      0      0      0      0      0     22

     23       Florida Parole Commission         0    29       2      0      0      6      0      1      0     36     74

     24       Pardon Board                      0     0       0      0      0      0      0      0      0      0      0

     25       Florida Public Service           42    79      76     18      7     11     36     24     42     32    367




10
              Commission

     26       Assessment Administration         0     0       0      0      0      0      0      0      0      0      0
              Review Commission

     27       Executive Office of the          15     0       0      7     15      0      0      0      0      1     38
              Governor

     28       Administration Commission       125   125      41     38      3      0      0      3      2     45    382

     29       Regional Planning Councils       64    35     134      1      0     17     18     11      1     19    300

     30       Regional Transportation           3     0       0     15      0      0      0      0      0      0     18
              Authorities

     31       Loxahatchee River                 3    11       2      0      0      0      0      0      0      0     16
              Environmental Control
              District

     32       Florida State Fair Authority      0     0       0      0      0      0      0      0      0      0      0
                     PROPOSED RULES 1997 THROUGH 2006
     CHPT #   AGENCY                        1997   1998   1999   2000   2001   2002   2003   2004   2005   2006   TOTAL

     33       Corrections                    191    66      38    166     50     73     93     84     68     45    874

     34       Florida Commission on            6   176       2     41     17      1      1      9      1     21    275
              Ethics

     35       Metropolitan Planning            5     0       0      0     17      0      1      0      0      0     23
              Organizations

     36       Englewood Water District         0     0       0      0      0      0      0      0      0      0      0

     37       Legislative Committee on         0     0       0      0      0      0      0      0      0      0      0
              Intergovernmental Relations

     38       Labor and Employment           184    67       8     14     29      9      0      0      0      0    311
              Security

     39       Game and Fresh Water            61    75      41      0      0      0      0      0      0      0    177
              Fish Commission




11
     40       Water Management               107   546      71    144    210    175    131    161     94    130   1,769
              Districts

     41       Commission for the              16     0       0      3      3      1      3      1      0      0     27
              Transportation
              Disadvantaged

     42       Florida Land and Water          15    39      15      4      6     17     17     31     16     23    183
              Adjudicatory Commission

     43       Fiscal Accounting                0     0       0      0      0      0      0      0      0      0      0
              Information Board

     44       Information Resource             0     0       0      0      0      0      0      0      0      0      0
              Commission

     45       Expressway Authorities           0     0       0      0      0      0      0      0      0      0      0

     46       Marine Fisheries                58    46      17      0      0      0      0      0      0      0    121
              Commission
                        PROPOSED RULES 1997 THROUGH 2006
     CHPT #   AGENCY                           1997   1998   1999   2000   2001   2002   2003   2004   2005   2006   TOTAL

     47       Florida High Speed Rail             0     0       0      0      0      0      0      0      0      0      0
              Transportation Commission

     48       Florida Keys Aqueduct               0     0       0      0      0      0      0      0      0      0      0
              Authority

     49       Regional Utilities Authorities     40    56       0      0      3      0      0      2      0      0    101

     50       Alligator Point Water               0     0       0      0      0      0      0      0      0      0      0
              Resources District

     51       The Consolidated Taxicab            0     0       0      0      0      0      0      0      0      0      0
              Commission

     52       Port of Palm Beach District         0     0       0      0      0      0      0      0      0      0      0

     53       Lottery                             3     1      19      2      6     24      3      4     30      0     92




12
     54       Interlocal Agencies                 0     1       0      0      1      0      1      0      0      1      4

     55       Veterans’ Affairs                   2    32       4      8      0      0      0      2      0      0     48

     56       Clean Florida Commission            0     0       0      0      0      0      0      0      0      0      0

     57       Space Florida                       0     0       0     23      0      0      0      0      0      0     23

     58       Elder Affairs                      88    34      34     26     16      7     21      0     17     31    274

     59       Agency for Health Care            335   103      83    127    109     70    135     45    104    168   1,279
              Administration

     60       Management Services                70   318     105     64    146     67    192    153     38     98   1,251

     61       Business and Professional         644   262     223    264    189    144    217    290    238    279   2,750
              Regulation

     62       Environmental Protection          289   294     263    120    235    168    149    231    155    136   2,040

     63       Juvenile Justice                   26     3       0      0     14      0      0      3      0     92    138
                       PROPOSED RULES 1997 THROUGH 2006
     CHPT #   AGENCY                      1997    1998    1999    2000    2001    2002    2003    2004    2005    2006    TOTAL

     64       Health                       398     435     360     412     425     507     280     387     405     376     3,985

     65       Children and Family          108     220      95      98      46      51      81      46     152     167     1,064
              Services

     66       Navigation Districts           0      31       7      17      19       7       8       0      19      10      118

     67       Florida Housing Finance       28     127     143     142     101     114     133     180      57      38     1,063
              Corporation

     68       Florida Fish and Wildlife      0       1      58      79     116      77      77     151      91      40      690
              Conservation Commission

     69       Financial Services             0       0       0       0       9       0      74     161     211     235      690

                                          4,373   4,598   2,915   2,877   2,955   2,774   2,459   2,654   2,209   2,428   66,228




13
             THE FLORIDA LEGISLATURE
            Joint Administrative
           Procedures Committee
               2006 Annual Report




Emergency Rules
 (1997 - 2006)
                      EMERGENCY RULES 1997 THROUGH 2006
     CHPT #   AGENCY                      1997   1998   1999   2000   2001   2002   2003   2004   2005   2006   TOTAL

     01       State                         0      0      0      0      1      2      0      1      1      1       6

     02       Legal Affairs                 2      1      0      1      1      1      0      0      0      0       6

     03       Banking and Finance           0      0      0      0      0      0      0      0      0      0       0

     04       Insurance                     0      1      0      5     42     10      0      0      0      0      58

     05       Agriculture and               7      0      1      4      2      1      0      3      1      0      19
              Consumer Services

     06       Education                     1      1      0      0      0      95   102      9      6      0     214

     07       Business Regulation           0      0      0      0      0      0      0      0      0      0       0

     08       Commerce                      0      0      0      0      0      0      0      0      0      0       0

     09       Community Affairs             2      1      2     11      0      1       0     1      2      1      21




14
     10       Health and Rehabilitative     0      0      0      0      0      0      0      0      0      0       0
              Services

     11       Law Enforcement               0      0      0      0      0      0      0      0      0      0       0

     12       Revenue                       0      1      1      2     30      8     10     11     13      9      85

     13       General Services              0      0      0      0      0      0      0      0      0      0       0

     14       Transportation                0      1      1      0      0      0      0      0      0      0       2

     15       Highway Safety and            0      0      0      0      0      0      0      0      0      0       0
              Motor Vehicles

     16       Natural Resources             0      0      0      0      0      0      0      0      0      0       0

     17       Environmental Regulation      0      0      0      0      0      0      0      0      0      0       0
                       EMERGENCY RULES 1997 THROUGH 2006
     CHPT #   AGENCY                     1997   1998   1999   2000   2001   2002   2003   2004   2005   2006   TOTAL

     18       Board of Trustees of the     0      0      0      0      0      0      0      0      0      0       0
              Internal Improvement
              Trust Fund

     19       State Board of               0      0      0      0      0      2      0      2      1      4       9
              Administration

     20       Citrus                       2      0      0      0      1      8      4      1     13      0      29

     21       Professional Regulation      0      0      0      0      0      0      0      0      0      0       0

     22       Administration               0      0      0      0      0      0      0      0      0      0       0

     23       Florida Parole               0      0      0      0      0      0      0      0      0      0       0
              Commission

     24       Pardon Board                 0      0      0      0      0      0      0      0      0      0       0




15
     25       Florida Public Service       0      0      0      0      0      0      0      0      0      0       0
              Commission

     26       Assessment                   0      0      0      0      0      0      0      0      0      0       0
              Administration Review
              Commission

     27       Executive Office of the      0      0      0      0      0      0      0      0      0      0       0
              Governor

     28       Administration               0      0      0      0      0      0      0      0      0      0       0
              Commission

     29       Regional Planning            0      0      0      0      0      0      0      0      0      0       0
              Councils

     30       Regional Transportation      0      0      0      0      0      0      0      0      0      0       0
              Authorities

     31       Loxahatchee River            0      0      0      0      0      0      0      0      0      0       0
              Environmental Control
              District
                      EMERGENCY RULES 1997 THROUGH 2006
     CHPT #   AGENCY                         1997   1998   1999   2000   2001   2002   2003   2004   2005   2006   TOTAL

     32       Florida State Fair Authority     0      0      0      0      0      0      0      0      0      0       0

     33       Corrections                      0      0      0      0      0      0     14      0      0      0      14

     34       Florida Commission on            0      0      0      0      0      0      0      0      0      8       8
              Ethics

     35       Metropolitan Planning            0      0      0      0      0      0      0      0      0      0       0
              Organizations

     36       Englewood Water                  0      0      0      0      0      0      0      0      0      0       0
              Management District

     37       Legislative Committee on         0      0      0      0      0      0      0      0      0      0       0
              Intergovernmental
              Relations

     38       Labor and Employment             0      0      0      0      0      0      0      0      0      0       0




16
              Security

     39       Game and Fresh Water             0      1      0      0      0      0      0      0      0      0       1
              Fish Commission

     40       Water Management                 0      0      0      0      1      0      0      0      0      0       1
              Districts

     41       Commission for the               0      0      0      0      0      0      0      0      0      0       0
              Transportation
              Disadvantaged

     42       Florida Land and Water           0      0      0      0      0      0      0      0      0      0       0
              Adjudicatory Commission

     43       Fiscal Accounting                0      0      0      0      0      0      0      0      0      0       0
              Information Board

     44       Information Resource             0      0      0      0      0      0      0      0      0      0       0
              Commission

     45       Expressway Authorities           0      0      0      0      0      0      0      0      0      0       0
                        EMERGENCY RULES 1997 THROUGH 2006
     CHPT #   AGENCY                     1997   1998   1999   2000   2001   2002   2003   2004   2005   2006   TOTAL

     46       Marine Fisheries             1      0      2      0      0      0      0      0      0      0       3
              Commission

     47       Florida High Speed Rail      0      0      0      0      0      0      0      0      0      0       0
              Transportation
              Commission

     48       Florida Keys Aqueduct        0      0      0      0      0      0      0      0      0      0       0
              Authority

     49       Regional Utilities           0      0      0      0      0      0      0      0      0      0       0
              Authorities

     50       Alligator Point Water        0      0      0      0      0      0      0      0      0      0       0
              Resources District

     51       The Consolidated             0      0      0      0      0      0      0      0      0      0       0
              Taxicab Commission




17
     52       Port of Palm Beach           0      0      0      0      0      0      0      0      0      0       0
              District

     53       Lottery                     61     62     64     59     84     68     70     88     97     61     714

     54       Interlocal Agencies          0      0      0      0      0      0      0      0      0      0       0

     55       Veterans’ Affairs            0      0      0      0      0      0      0      0      0      0       0

     56       Clean Florida Commission     0      0      0      0      0      0      0      0      0      0       0

     57       Space Florida                0      0      0      0      0      0      0      0      0      0       0

     58       Elder Affairs                0      0      0      0      0      0      0      0      0      0       0

     59       Agency for Health Care      11      1      0      0      0      5      0      0      1      0      18
              Administration

     60       Management Services          0      0      0      0      0      0      0      0      4      0       4
                       EMERGENCY RULES 1997 THROUGH 2006
     CHPT #   AGENCY                      1997   1998   1999   2000   2001   2002   2003   2004   2005   2006   TOTAL

     61       Business and                  5      3      8      1      0      3      5      2      1      1       29
              Professional Regulation

     62       Environmental Protection      0      0      0      0      0      0      1      0      0      0        1

     63       Juvenile Justice              0      0      0      0      0      0      0      0      0     54       54

     64       Health                        3      3      1      4      3      2      3      4      4      0       27

     65       Children and Family           1      1      0      0      0      0      0      1      3      0        6
              Services

     66       Navigation Districts          0      0      0      0      0      0      0      0      0      0        0

     67       Florida Housing Finance       0      0      0      0      0      0      0     24     32     57     113
              Corporation

     68       Florida Fish and Wildlife     0      0      2      0      1      7      2      3      2      1       18




18
              Conservation Commission

     69       Financial Services            0      0      0      0      0      0      0     20     12      3       35

                                            96     77     82     87    166    213    211    170    193    200    1,495
               THE FLORIDA LEGISLATURE
              Joint Administrative
             Procedures Committee
                 2006 Annual Report




Legislative Report:

  2006 Session
   Changes in
Chapter 120, F.S.
     2006 SUMMARY OF AMENDMENTS TO CHAPTER 120

Chapter 2006-45, Laws of Florida, amended §120.80, F.S., by deleting paragraph
(2)(c), which provided that §§120.54 and 120.56, F.S., shall not apply to actions by the
Department of Agriculture and Consumer Services in furtherance of its duties under
§581.184(2), F.S., the citrus canker eradication program. Effective date: July 1, 2006.


Chapter 2006-82, Laws of Florida, amended several sections of Chapter 120:

Section 120.54
   o Subparagraph 120.54(3)(d)1. is amended to clarify that the referenced “notice”
      refers to the required notice of substantive change to a proposed rule.
   o Subparagraph 120.54(3)(e)2. is amended to include the rulemaking timeframes
      currently found in paragraph 120.56(2)(b). There will be no substantive change
      to the existing timeframes.
   o Subparagraph 120.54(3)(e)2. is further amended to provide that if a petition for
      administrative determination under subsection 120.56(2) is filed, the period
      during which a proposed rule must be filed for adoption is extended to 60 days
      after the administrative law judge files the final order with the clerk or until 60
      days after subsequent judicial review is complete.
   o A provision is added to paragraph 120.54(3)(e) to clarify that the term
      “administrative determination” does not include subsequent judicial review.
   o Subparagraph 120.54(5)(b)3. is amended to provide specific authority for the
      Administration Commission to prescribe by rule the form and content of a bond
      required pursuant to a bid protest.
   o New subparagraph 120.54(5)(b)5. requires the Administration Commission to
      adopt uniform rules of procedure for the filing of a request for administrative
      hearing by a respondent in agency enforcement and disciplinary actions.
   o Renumbered subparagraph 120.54(5)(b)6. is amended to provide that the
      uniform rules of procedure shall describe the contents of the notices published in
      the Florida Administrative Weekly relating to declaratory statements.

Section 120.55
   o Subparagraph 120.55(1)(a)4. is amended to require that forms incorporated by
      reference in a rule noticed after December 31, 2007, shall display the number,
      title, and effective date of the form and the number of the rule in which the form is
      incorporated.
   o Effective December 31, 2007, several provisions of §120.55 are amended to
      require the Department of State to publish the Florida Administrative Weekly on a
      central Internet website; describe the contents of the website; describe the
      responsibilities of the department; and establish the search capabilities and other
      features of the website. A printed version of the Weekly will be published and
      made available on a subscription basis. Access to the Internet website and its
      contents shall be free for the public.


                                            19
Section 120.56
   o Paragraph 120.56(2)(b) is amended to provide that unless the decision of the
      administrative law judge is reversed on appeal, a proposed rule that has been
      declared invalid may not be adopted.
   o The rulemaking timeframes contained in paragraph 120.56(2)(b) are moved to
      subparagraph 120.54(3)(e)2.

Section 120.569
   o Paragraph 120.569(2)(c) is amended to provide that the requirements of the
      paragraph related to the filing of a petition or request for hearing do not eliminate
      the availability of equitable tolling as a defense to the untimely filing of a petition
      or request for hearing.

Section 120.57
   o Paragraph 120.57(1)(k) is amended to provide that the final order of the agency
      in proceedings involving disputed issues of fact shall include an explicit ruling on
      each exception to the recommended order.
   o Paragraph 120.57(1)(m) is amended to require an agency to provide a copy of its
      final order and any exceptions to DOAH within 15 days after the order is filed with
      the agency clerk.
   o Paragraph 120.57(3)(a) is amended to include in the statement accompanying
      agency notice of a decision or intended decision concerning a solicitation,
      contract award, or exceptional purchase that the failure to post a bond or other
      security within the time allowed for filing a bond shall constitute a waiver of
      proceedings under chapter 120.

Section 120.65
   o Paragraph 120.65(10)(c) is created to require the DOAH annual report to include
      recommendations as to the types of cases that should be conducted under the
      summary hearing process described in §120.574.
   o Paragraph 120.65(10)(d) is created to require the DOAH report to include
      information regarding each agency’s compliance with the filing requirement in
      §120.57(1)(m).

Section 120.74
   o Subsection 120.74(2) is amended to require that a copy of the biennial agency
      report on rules be provided to JAPC, and that the report identify the types of
      cases that should be conducted under the summary hearing process described
      in §120.574.

The Department of State is required to make available, before December 31, 2007,
training courses for the purpose of assisting agencies with their transition to publishing
on the Florida Administrative Weekly Internet website.

Effective date: July 1, 2006, unless otherwise specified in the act.




                                             20
              THE FLORIDA LEGISLATURE
             Joint Administrative
            Procedures Committee
                2006 Annual Report




Committee Review
 of Existing Rules
    and Statutes
                  COMMITTEE REVIEW OF EXISTING
                     RULES AND STATUTES

In 2006, the committee continued its focused review of existing agency rules. The
purpose of this review is to identify existing rules that are obsolete, unnecessary or
no longer in compliance with current statutory authority. An accompanying
examination of relevant statutes helps identify possible problems in the delegated
legislative authority to adopt rules. Agencies are advised of the committee’s findings
and are requested to take appropriate action to amend or repeal specific rules.
Recommendations to address problems or concerns related to an agency’s statutory
authority to adopt rules will be provided to the appropriate standing committees of the
Senate and the House of Representatives.

In addition to the review of existing rules and implemented statutes, the committee
continued its ongoing review of proposed rules to reveal problems or concerns with
the delegated legislative authority to adopt rules in specific circumstances.
Identifying statutory problems in the course of normal rule review is an efficient use of
committee resources. When such problems are identified, the standing committees
with subject area jurisdiction are contacted with regard to the advisability of
considering changes to an agency’s authority to adopt rules.

The following areas of concern have been brought to the attention of standing
committees:


 §210.05(5), F.S.          In a notice of proposed rulemaking for 61A-10.026(1)
                           (published in the January 20, 2006 FAW), the
                           Department of Business and Professional Regulation,
                           Division of Alcoholic Beverages and Tobacco,
                           proposed language to reflect statutory changes in
                           2005-228, L.O.F. Section 210.05(5) authorizes agents
                           or wholesale dealers to sell stamped, but untaxed,
                           cigarettes to the Seminole Indian Tribe, or to members
                           thereof, for retail sale. The Division proposed to delete
                           the reference to “Seminole” and insert “Federally
                           recognized Indian Tribes,” arguing that under the
                           United States Constitution and Department of Interior
                           rules, the Indian Tribes recognized by the United
                           States must be treated equally. The statutory authority,
                           however, extends to the Seminole Indian Tribe rather
                           than federally recognized tribes.




                                           21
Chapters 1000-1013,   Numerous issues arose concerning the governance of
F.S.                  the State University System and the roles of the State
                      Board of Education, the Board of Governors, the
                      Committee, and the Legislature. In late 2005, the State
                      Board of Education proposed and adopted numerous
                      rules that dealt with postsecondary education, including
                      provisions that govern state universities. Also, the
                      Board of Governors adopted its own procedures for
                      adopting regulations, and the universities stopped
                      adopting rules pursuant to Chapter 120, Florida
                      Statutes. Article IX, section 7, Florida Constitution,
                      provides that the Board of Governors “shall operate,
                      regulate, control, and be fully responsible for the
                      management of the whole university system.”
                      However, it is not clear where the line between
                      legislative power and the Board of Governors’
                      constitutional power is located, nor is it clear what role,
                      if any, the State Board of Education still has with the
                      university system. Many of the operating statutes in
                      Chapters 1000-1013, F.S., have not been amended
                      since the adoption of Article IX, section 7, creating
                      some confusion concerning rulemaking authority.




                                      22
              THE FLORIDA LEGISLATURE
             Joint Administrative
            Procedures Committee
                2006 Annual Report




  Exemptions
  Granted to
Chapter 120, F.S.
                   EXEMPTIONS GRANTED TO CHAPTER 120



T   he drafters of the Administrative Procedure Act were aware that the future
    might bring some unforeseen circumstances which would make some portion
of the Act detrimental to the best interests of the people. For this reason,
provisions were made for the Administration Commission, composed of the
Governor and the Cabinet, to grant exemptions from one or more of the Act’s
provisions. At the time an exemption is granted, alternative procedures which
are compatible with the Act must be prescribed. If an exemption is granted while
the Legislature is in session, the exemption expires with the adjournment sine die
of the Legislature. When the Legislature is not in session, exemptions expire at
the adjournment of the next regular legislative session. (§120.63, F.S.)


                                        ■       ■        ■     ■   ■


S    ince the Administrative Procedure Act has been in effect, the following
     agencies have been granted partial exemptions from the Act:


     Department of Business Regulation
     Marion and Lee County School Boards
     Public Employees Relations Commission
     School Boards and Community Colleges
     Department of Banking and Finance
     Department of Offender Rehabilitation
     Department of Business Regulation, Division of Pari-Mutuel Wagering
     Department of Health and Rehabilitative Services
     Parole and Probation Commission
     Florida State Board of Community Colleges


All of the exemptions listed above have expired.


                                        ■       ■        ■     ■   ■


T    here were no exemptions in 1998 – 2006.*




*This information provided by the Administration Commission.




                                                         23
          THE FLORIDA LEGISLATURE
         Joint Administrative
        Procedures Committee
            2006 Annual Report




2006 Rule
Objections
                         2006 OBJECTION REPORTS

AGENCY:             DEPARTMENT OF HEALTH; BOARD OF ACUPUNCTURE
RULE NUMBER:        64B1-3.001(6), F.A.C.
TITLE:              DEFINITIONS

OBJECTIONABLE PROVISIONS:

64B1-3.001 Definitions.

(6) Acupuncture physician means any person certified as provided in this chapter to
practice acupuncture as a primary health care provider.

CITED AGENCY AUTHORITY:

      (a) Rulemaking                            (b) Law Implemented

      s. 457.102, F.S.                          s. 457.102, F.S.
      s. 457.104, F.S.


SPECIFIC OBJECTIONS:

Rule 64B1-3.001(6) is objectionable on two grounds. The Board of Acupuncture has
exceeded its grant of rulemaking authority, in violation of s. 120.52(8)(b), F.S., and the
rule modifies the specific provisions of the law being implemented, in violation of s.
120.52(8)(c), F.S.

The grant of rulemaking authority for Rule 64B1-3.001(6), F.S., is s. 457.104, F.S. That
statute was amended in 1998 to provide that “[t]he board has authority to adopt rules
pursuant to ss. 120.536(1) and 120.54 to implement provisions of this chapter
conferring duties upon it.” The statute cited as the law implemented, s. 457.102, F.S.,
simply defines several terms, none of which includes “acupuncture physician.” The
statute confers no duty upon the board to define the term “acupuncture physician.”
Subsection 120.536(1), F.S., provides in part that “[a]n agency may adopt only rules
that implement or interpret the specific powers and duties granted by the enabling
statute.” Because s. 457.102(2), F.S., does not impose any duty on the board, the
board does not have rulemaking authority to implement it. An agency’s rulemaking
powers “are necessarily limited to the parameters of the statute which confers on the
agency its rulemaking authority.” Booker Creek Preservation, Inc., v. S.W. Fla. Water
Mgmt. Dist., 534 So.2d 419, 423 (Fla. 5th DCA 1988).

Rule 64B1-3.001(6) also improperly modifies the specific provisions of s. 457.102, F.S.
The rule defines the term “acupuncture physician” to mean “any person certified as
provided in this chapter to practice acupuncture as a primary health care provider.” The


                                           24
law being implemented by the rule, s. 457.102(2), F.S., uses the same definition to
define the term “acupuncturist,” not “acupuncture physician.” By using the statutory
definition of the title “acupuncturist” to define a totally different title, “acupuncture
physician,” the board has modified the statute, in violation of s. 120.52(8)(c), F.S. “It is
axiomatic that an administrative rule cannot enlarge, modify or contravene the
provisions of a statute.” State, Department of Bus. Reg. v. Salvation Limited, Inc., 452
So.2d 65, 66 (Fla. 1st DCA 1984); DeMario v. Franklin Mortgage & Investment Co.,
Inc., 648 So.2d 210 (Fla. 4th DCA 1995.)

Rule 64B1-3.001(6) is an invalid exercise of delegated legislative authority because the
board has exceeded its grant of rulemaking authority, and the rule impermissibly
modifies the specific provisions of the law implemented.


AGENCY:               DEPARTMENT OF HEALTH; BOARD OF ACUPUNCTURE
RULE NUMBER:          64B1-9.005, F.A.C.
TITLE:                DEFINITIONS

OBJECTIONABLE PROVISIONS:

64B1-9.005 Definitions.

As used in 457.116(1)(b), F.S., the following terms shall mean:

       (1)   L.Ac. – Licensed Acupuncturist.
       (2)   R.Ac. – Registered Acupuncturist.
       (3)   A.P. – Acupuncture Physician.
       (4)   D.O.M. – Doctor of Oriental Medicine.

CITED AGENCY AUTHORITY:

       (a) Rulemaking                            (b) Law Implemented

       s. 457.104, F.S.                          s. 457.116(1)(b), F.S.
       s. 457.116(1)(b), F.S.


SPECIFIC OBJECTIONS:

Rule 64B1-9.005, F.A.C., is an invalid exercise of delegated legislative authority
because the Board of Acupuncture has exceeded its grant of rulemaking authority in s.
457.104, F.S., and the rule modifies the specific provisions of the law implemented.

Section 457.104, F.S., authorizes the Board of Acupuncture to adopt rules to implement
provisions of Chapter 457 conferring duties upon the board. The law implemented,




                                            25
s. 457.116(1)(b), F.S., describes a prohibited act, but does not impose any duty on the
Board of Acupuncture.

In contrast, other statutes in Chapter 457 do impose express duties on the Board of
Acupuncture to implement their provisions. For example, s. 457.1085, F.S., states that
“[t]he Board shall adopt rules relating to the prevention of infection, the safe disposal of
any potentially infectious materials, and other requirements to protect the health, safety,
and welfare of the public.” See also statutes related to licensure (s. 457.105, F.S.),
discipline (s. 457.109, F.S.), and continuing education requirements (s. 457.107, F.S.).
The enumeration of duties for the board to perform renders these statutes quite different
from s. 457.116(1)(b), F.S.

Since s. 457.116(1)(b), F.S., imposes no duty on the board, the board does not have
rulemaking authority to implement it. Accordingly, the Board of Acupuncture has
exceeded its grant of rulemaking authority by adopting a rule purporting to implement s.
457.116(1)(b), F.S. An agency’s rulemaking powers “are necessarily limited to the
parameters of the statute which confers on the agency its rulemaking authority.” Booker
Creek Preservation, Inc. v. S.W. Fla. Water Mgmt. Dist., 534 So.2d 419, 423 (Fla. 5th
DCA 1988).

Even if the Board of Acupuncture had the authority to implement s. 457.116(1)(b), F.S.,
this rule impermissibly modifies the specific provision of law implemented, and is
therefore objectionable.

Under the relevant portions of s. 457.116(1)(b), F.S., a person may not “[u]se, in
connection with his or her name or place of business . . . the letters ‘L.Ac.,’ ‘R.Ac.,’
‘A.P.,’ or ‘D.O.M.’ . . . unless he or she is a holder of a valid license issued pursuant to
ss. 457.101-457.118.” The law implemented reflects a legislative determination that the
use by an unlicensed person of these particular combinations of letters - standing alone
- is a violation of law. The board’s rule modifies this provision by ascribing specific
meanings to each combination of letters. While the statute would require the
prosecuting authority to prove only the use of, for example, the letter combination “A.P.”
in connection with a person’s place of business, the board’s rule would require the
additional proof that the letters were used to signify “Acupuncture Physician.”

By narrowing the meaning of the letters set forth in the statute, the Board of
Acupuncture has modified the provision of law it purports to implement. “It is axiomatic
that an administrative rule cannot enlarge, modify or contravene the provisions of a
statute.” State, Department of Bus. Reg. v. Salvation Limited, Inc., 452 So.2d 65, 66
(Fla. 1st DCA 1984); DeMario v. Franklin Mortgage & Investment Co., Inc., 648 So.2d
210 (Fla. 4th DCA 1995.)

For the reasons stated above, this rule constitutes an invalid exercise of delegated
legislative authority in violation of s. 120.52(8), F.S., and is therefore objectionable.




                                            26
              THE FLORIDA LEGISLATURE
             Joint Administrative
            Procedures Committee
                2006 Annual Report




 Administrative
Determinations
and Petitions for
Judicial Review
          2006 ADMINISTRATIVE DETERMINATIONS AND
         PETITIONS FOR JUDICIAL REVIEW FILED ON THE
        INVALIDITY OF PROPOSED AND EXISTING RULES*



NUMBER OF CASES REVIEWED BY DOAH:


                                    CLOSED CASES                   ACTIVE CASES


    PROPOSED RULES                          19                             6

     EXISTING RULES                         14                             2




JUDICIAL REVIEW CASES:

CASE NUMBER: 06-2886RX
STYLE: Miriam Oliphant vs. Florida Elections Commission
RULE: 2B-1.002
STATUTE: Ch.104, F.S.
DOAH FINAL ORDER DATE: 10/24/06
CASE SUMMARY: Rule defining "willful" for purposes of Chapter 104, Florida Statutes, not an
"invalid exercise of delegated legislation authority," as alleged by Petitioner.
DCA CASE: 1D06-6073 filed 11/22/06


CASE NUMBER: 06-0798RX
STYLE: Michael John Badanek, D.C. vs. Department of Health, Division of Medical Quality
Assurance, Board of Chiropractic Medicine
RULE: 64B2-15.001(2)(e), (i), and (l)
STATUTE: §460.405, F.S.
DOAH FINAL ORDER DATE: 5/16/06
CASE SUMMARY: Petitioner failed to prove that Rule 64B2-15.001(2)(e), (i) and (l), Florida
Administrative Code, exceeded Respondent’s rulemaking authority or enlarges, modifies, or
contravenes the law implemented.
DCA CASE: 1D06-3027 filed 6/13/06




                                            27
CASE NUMBER: 06-0141RX
STYLE: An Unnamed Political Entity vs. Florida Elections Commission
RULE: 2B-1.0035 and 2B-1.0027(2)
STATUTE: §106.26, F.S.
DOAH FINAL ORDER DATE: 7/6/06
CASE SUMMARY: The challenged rules are not an invalid exercise of delegated legislative
authority. Respondent’s executive director is authorized to issue subpoenas and determine the
legal sufficiency of a complaint.
DCA CASE: 1D06-4036 filed 8/7/06


CASE NUMBER: 04-4571RX
STYLE: A. Alexander Jacoby, M.D. vs. Department of Health, Board of Medicine
RULE: 64B8-8.001(1), 64B8-8.001(2), 64B8-8.001(2)(b)
STATUTE: Chs. 456 and 458, F.S.
DOAH FINAL ORDER DATE: 5/10/06
CASE SUMMARY: The evidence was insufficient to demonstrate the invalidity of the
challenged agency policies and rules.
DCA CASE: 1D06-2950 filed 6/9/06


CASE NUMBER: 06-2899RP
STYLE: Florida Medical Association vs. Department of Health, Board of Pharmacy
RULE: 64B16-27.830
STATUTE: Ch. 465, F.S.
DOAH FINAL ORDER DATE: 11/1/06
CASE SUMMARY: Proposed rule 64B16-27.830(4) is an invalid delegation of delegated
legislative authority because Respondent failed to follow applicable rulemaking procedures;
exceeded its grant of rulemaking authority; and the rule is arbitrary and capricious.
DCA CASE: 1D06-6205 filed 11/30/06


CASE NUMBER: 05-4350RP
STYLE: Hanger Prosthetics and Orthotics, Inc. and Hugh J. Panton vs. Department of Health,
Board of Orthotists and Prosthetists
RULE: 69O-125.005
STATUTE: Ch. 627, F.S.
DOAH FINAL ORDER DATE: 3/9/06
CASE SUMMARY: The proposed rule regulating the insurance companies’ use of credit
scoring to establish rates was impermissibly vague.
DCA CASE: 1D06-1703 filed 4/7/06




                                             28
CASE NUMBER: 05-2630RP
STYLE: Attorneys’ Title Insurance Fund, Inc., and Florida Land Title Association, Inc.
RULE: 69O-186.003
STATUTE: §§627.782(2); 627.7865, F.S.
DOAH FINAL ORDER DATE: 5/17/06
CASE SUMMARY: OIR failed to prove that procedures followed in publishing notice of intent to
adopt Proposed Rule 690-186.003(l)(c) did not materially deviate from rulemaking procedures.
Proposed Rule is, therefore, invalid exercise of delegated legislative authority.
DCA CASE: 1D06-3032 filed 6/14/06


CASE NUMBER: 05-2609RP
STYLE: The Florida Insurance Council, Inc. vs. Office of Insurance Regulation and the Financial
Services Commission
RULE: 69O-175.003, .005 - .007, .013, .0135, .014, .0141, .0142, .0143, .0155
STATUTE: §§627.011 – 627.381, F.S.
DOAH FINAL ORDER DATE: 5/22/06
CASE SUMMARY: The Proposed Rules are valid exercises of delegated
legislative authority except for underlined portions of Rule 69O-170.013(2) which are invalid
exercises of delegated legislative authority.
DCA CASE: 1D06-3109 filed 6/19/06


CASE NUMBER: 04-0880RP
STYLE: Association of Florida Community Developers vs. Department of Environmental Protection
RULE: 62-40.474
STATUTE: §373..223(4), F.S.
DOAH FINAL ORDER DATE: 2/24/06
CASE SUMMARY: The proposed rules are not invalid exercises of delegated legislative
authority.
DCA CASE: 1D06-1425 filed 3/24/06




*Note: As of January 25, 2007. Data obtained from the Division of Administrative Hearings (DOAH).




                                                  29
              THE FLORIDA LEGISLATURE
             Joint Administrative
            Procedures Committee
                2006 Annual Report




 Section 11.60,
Florida Statutes:

Administrative
 Procedures
 Committee
F.S. 2006            LEGISLATIVE ORGANIZATION, PROCEDURES, AND STAFFING                                                                     Ch. 11




      11.60 Administrative Procedures                                  (i) Appoint an executive director and general
Committee; creation; membership; powers;                          counsel, by majority vote of the members of the
duties.—                                                          committee, and fill any vacancy in that office in the
      (1) There is created a joint standing committee             same manner.
of the Legislature designated as the “Administrative                   (j) Have general administrative responsibility for
Procedures Committee,” composed of six members                    the operations of its staff.
appointed as follows: three members of the House of                    (k) Have standing to seek judicial review, on
Representatives appointed by the Speaker of the                   behalf of the Legislature or the citizens of this state, of
House of Representatives, one of whom shall be a                  the validity or invalidity of any administrative rule to
member of the minority party; and three members of                which the committee has voted an objection and
the Senate appointed by the President of the Senate,              which has not been withdrawn, modified, repealed, or
one of whom shall be a member of the minority party.              amended to meet the objection. Judicial review under
The president shall appoint the chair in even years               this paragraph shall not be initiated until the Governor
and the vice chair in odd years, and the speaker shall            and the agency head of the agency making the rule to
appoint the chair in odd years and the vice chair in              which the committee has objected have been notified
even years, from among the committee membership.                  of the committee’s proposed action and have been
Vacancies shall be filled in the same manner as the               given a reasonable opportunity, not to exceed 60
original appointment. Members shall serve without                 days, for consultation with the committee. The
additional compensation, but shall be reimbursed for              committee is authorized to expend public funds from
expenses.                                                         its appropriation for the purpose of seeking judicial
      (2) The committee shall:                                    review.
      (a) Maintain a continuous review of the                          (l) Maintain a continuous review of the
statutory authority on which each administrative rule             administrative rulemaking process, including a review
is based and, whenever such authority is eliminated               of agency procedure and of complaints based on
or significantly changed by repeal, amendment,                    such agency procedure.
holding by a court of last resort, or other factor, advise             (m) Establish measurement criteria to evaluate
the agency concerned of the fact.                                 whether agencies are complying with the delegation
      (b) Maintain a continuous review of                         of legislative authority in adopting and implementing
administrative rules and identify and request an                  rules.
agency to repeal any rule or any provision of any rule                 (3) Expenses required for the work of the
which reiterates or paraphrases any statute or for                committee shall be included in and paid from the
which the statutory authority has been repealed.                  appropriation for legislative expense.
      (c) Review administrative rules and advise the                   (4) The committee shall maintain a continuous
agencies concerned of its findings.                               review of statutes that authorize agencies to adopt
      (d) Have the duties prescribed by chapter 120               rules and shall make recommendations to the
concerning the adoption and promulgation of rules.                appropriate standing committees of the Senate and
      (e) Generally review agency action pursuant to              the House of Representatives as to the advisability of
the operation of the Administrative Procedure Act.                considering changes to the delegated legislative
      (f) Report to the Legislature at least annually,            authority to adopt rules in specific circumstances. The
no later than the first week of the regular session, and          annual report submitted pursuant to paragraph (2)(f)
recommend needed legislation or other appropriate                 shall include any recommendations provided to the
action. Such report shall include the number of                   standing committees during the preceding year.
objections voted by the committee, the number of                         History.—s. 2, ch. 74-310; s. 1, ch. 77-453; s. 2, ch. 79-400; s. 4, ch. 80-
                                                                  391; s. 3, ch. 91-429; s. 6, ch. 92-166; s. 24, ch. 95-147; s. 2, ch. 96-159; s. 1,
suspensions recommended by the committee, the                     ch. 2006-82.
number of administrative determinations filed on the
invalidity of a proposed or existing rule, the number of
petitions for judicial review filed on the invalidity of a
proposed or existing rule, and the outcomes of such
actions.
      (g) Consult regularly with legislative standing
committees which have jurisdiction over the subject
areas addressed in agency proposed rules regarding
legislative authority for the proposed rules and other
matters relating to legislative authority for agency
action.
      (h) Adopt rules and regulations necessary for its
own organization and operation and for that of its
staff, consistent with general law and the rules of
each house.




                                                             30
              THE FLORIDA LEGISLATURE
             Joint Administrative
            Procedures Committee
                2006 Annual Report




  Chapter 120,
Florida Statutes:

Administrative
Procedure Act
F.S. 2006                                             ADMINISTRATIVE PROCEDURE ACT                                           Ch. 120

                                                                  CHAPTER 120

                                                      ADMINISTRATIVE PROCEDURE ACT

120.50        Exception to application of chapter.                           (b) Each:
120.51        Short title.                                                   1. State officer and state department, and each
120.52        Definitions.                                                 departmental unit described in s. 20.04.
120.525       Meetings, hearings, and workshops.                             2. Authority, including a regional water supply
120.53        Maintenance of orders; indexing; listing;                   authority.
                 organizational information.                                 3. Board.
120.533       Coordination of indexing by Department of                      4. Commission, including the Commission on Eth-
                 State.                                                   ics and the Fish and Wildlife Conservation Commission
120.536       Rulemaking authority; repeal; challenge.                    when acting pursuant to statutory authority derived
120.54        Rulemaking.                                                 from the Legislature.
120.541       Statement of estimated regulatory costs.                       5. Regional planning agency.
120.542       Variances and waivers.                                         6. Multicounty special district with a majority of its
120.545       Committee review of agency rules.                           governing board comprised of nonelected persons.
120.55        Publication.                                                   7. Educational units.
120.551       Internet publication.                                          8. Entity described in chapters 163, 373, 380, and
120.56        Challenges to rules.                                        582 and s. 186.504.
120.565       Declaratory statement by agencies.                             (c) Each other unit of government in the state,
120.569       Decisions which affect substantial interests.               including counties and municipalities, to the extent they
120.57        Additional procedures for particular cases.                 are expressly made subject to this act by general or
120.573       Mediation of disputes.                                      special law or existing judicial decisions.
120.574       Summary hearing.                                            This definition does not include any legal entity or
120.595       Attorney’s fees.                                            agency created in whole or in part pursuant to chapter
120.60        Licensing.                                                  361, part II, any metropolitan planning organization cre-
120.62        Agency investigations.                                      ated pursuant to s. 339.175, any separate legal or
120.63        Exemption from act.                                         administrative entity created pursuant to s. 339.175 of
120.65        Administrative law judges.                                  which a metropolitan planning organization is a mem-
120.651       Designation of two administrative law judges                ber, an expressway authority pursuant to chapter 348,
                 to preside over actions involving depart-                any legal or administrative entity created by an
                 ment or boards.                                          interlocal agreement pursuant to s. 163.01(7), unless
120.655       Withholding funds to pay for administrative                 any party to such agreement is otherwise an agency as
                 law judge services to school boards.                     defined in this subsection, or any multicounty special
120.66        Ex parte communications.                                    district with a majority of its governing board comprised
120.665       Disqualification of agency personnel.                        of elected persons; however, this definition shall
120.68        Judicial review.                                            include a regional water supply authority.
120.69        Enforcement of agency action.                                  (2) “Agency action” means the whole or part of a
120.695       Notice of noncompliance.                                    rule or order, or the equivalent, or the denial of a peti-
120.72        Legislative intent; references to chapter 120               tion to adopt a rule or issue an order. The term also
                 or portions thereof.                                     includes any denial of a request made under s.
120.73        Circuit court proceedings; declaratory judg-                120.54(7).
                 ments.                                                      (3) “Agency head” means the person or collegial
120.74        Agency review, revision, and report.                        body in a department or other governmental unit statu-
120.80        Exceptions and special requirements; agen-                  torily responsible for final agency action.
                 cies.                                                       (4) “Committee” means the Administrative Proce-
120.81        Exceptions and special requirements; gen-                   dures Committee.
                 eral areas.                                                 (5) “Division” means the Division of Administrative
                                                                          Hearings.
  120.50 Exception to application of chapter.—This                           (6) “Educational unit” means a local school district,
chapter shall not apply to:                                               a community college district, the Florida School for the
  (1) The Legislature.                                                    Deaf and the Blind, or a state university.
  (2) The courts.                                                            (7) “Final order” means a written final decision
 History.—s. 1, ch. 74-310; s. 3, ch. 77-468; s. 1, ch. 78-162.
                                                                          which results from a proceeding under s. 120.56, s.
  120.51 Short title.—This chapter may be known                           120.565, s. 120.569, s. 120.57, s. 120.573, or s.
and cited as the “Administrative Procedure Act.”                          120.574 which is not a rule, and which is not excepted
 History.—s. 1, ch. 74-310.                                               from the definition of a rule, and which has been filed
                                                                          with the agency clerk, and includes final agency actions
  120.52 Definitions.—As used in this act:                                 which are affirmative, negative, injunctive, or declara-
  (1) “Agency” means:                                                     tory in form. A final order includes all materials explicitly
  (a) The Governor in the exercise of all executive                       adopted in it. The clerk shall indicate the date of filing
powers other than those derived from the constitution.                    on the order.




                                                                     31
Ch. 120                                  ADMINISTRATIVE PROCEDURE ACT                                            F.S. 2006

   (8) “Invalid exercise of delegated legislative author-        the proceeding, or whose substantial interests will be
ity” means action which goes beyond the powers, func-            affected by proposed agency action, and who makes
tions, and duties delegated by the Legislature. A pro-           an appearance as a party.
posed or existing rule is an invalid exercise of dele-              (c) Any other person, including an agency staff
gated legislative authority if any one of the following          member, allowed by the agency to intervene or partici-
applies:                                                         pate in the proceeding as a party. An agency may by
   (a) The agency has materially failed to follow the            rule authorize limited forms of participation in agency
applicable rulemaking procedures or requirements set             proceedings for persons who are not eligible to become
forth in this chapter;                                           parties.
   (b) The agency has exceeded its grant of                         (d) Any county representative, agency, depart-
rulemaking authority, citation to which is required by s.        ment, or unit funded and authorized by state statute or
120.54(3)(a)1.;                                                  county ordinance to represent the interests of the con-
   (c) The rule enlarges, modifies, or contravenes the            sumers of a county, when the proceeding involves the
specific provisions of law implemented, citation to               substantial interests of a significant number of resi-
which is required by s. 120.54(3)(a)1.;                          dents of the county and the board of county commis-
   (d) The rule is vague, fails to establish adequate            sioners has, by resolution, authorized the representa-
standards for agency decisions, or vests unbridled dis-          tive, agency, department, or unit to represent the class
cretion in the agency;                                           of interested persons. The authorizing resolution shall
   (e) The rule is arbitrary or capricious. A rule is arbi-      apply to a specific proceeding and to appeals and ancil-
trary if it is not supported by logic or the necessary           lary proceedings thereto, and it shall not be required to
facts; a rule is capricious if it is adopted without thought     state the names of the persons whose interests are to
or reason or is irrational; or                                   be represented.
   (f) The rule imposes regulatory costs on the regu-
lated person, county, or city which could be reduced by          The term “party” does not include a member govern-
the adoption of less costly alternatives that substan-           ment of a regional water supply authority or a govern-
tially accomplish the statutory objectives.                      mental or quasi-judicial board or commission estab-
                                                                 lished by local ordinance or special or general law
A grant of rulemaking authority is necessary but not             where the governing membership of such board or
sufficient to allow an agency to adopt a rule; a specific          commission is shared with, in whole or in part, or
law to be implemented is also required. An agency may            appointed by a member government of a regional water
adopt only rules that implement or interpret the specific         supply authority in proceedings under s. 120.569, s.
powers and duties granted by the enabling statute. No            120.57, or s. 120.68, to the extent that an interlocal
agency shall have authority to adopt a rule only                 agreement under ss. 163.01 and 373.1962 exists in
because it is reasonably related to the purpose of the           which the member government has agreed that its sub-
enabling legislation and is not arbitrary and capricious         stantial interests are not affected by the proceedings or
or is within the agency’s class of powers and duties, nor        that it is to be bound by alternative dispute resolution in
shall an agency have the authority to implement statu-           lieu of participating in the proceedings. This exclusion
tory provisions setting forth general legislative intent or      applies only to those particular types of disputes or con-
policy. Statutory language granting rulemaking author-           troversies, if any, identified in an interlocal agreement.
ity or generally describing the powers and functions of             (13) “Person” means any person described in s.
an agency shall be construed to extend no further than           1.01, any unit of government in or outside the state, and
implementing or interpreting the specific powers and              any agency described in subsection (1).
duties conferred by the same statute.                               (14) “Recommended order” means the official rec-
   (9) “License” means a franchise, permit, certifica-            ommendation of an administrative law judge assigned
tion, registration, charter, or similar form of authoriza-       by the division or of any other duly authorized presiding
tion required by law, but it does not include a license          officer, other than an agency head or member of an
required primarily for revenue purposes when issuance            agency head, for the final disposition of a proceeding
of the license is merely a ministerial act.                      under ss. 120.569 and 120.57.
   (10) “Licensing” means the agency process respect-               (15) “Rule” means each agency statement of gen-
ing the issuance, denial, renewal, revocation, suspen-           eral applicability that implements, interprets, or pre-
sion, annulment, withdrawal, or amendment of a                   scribes law or policy or describes the procedure or
license or imposition of terms for the exercise of a             practice requirements of an agency and includes any
license.                                                         form which imposes any requirement or solicits any
   (11) “Official reporter” means the publication in              information not specifically required by statute or by an
which an agency publishes final orders, the index to              existing rule. The term also includes the amendment or
final orders, and the list of final orders which are listed        repeal of a rule. The term does not include:
rather than published.                                              (a) Internal management memoranda which do not
   (12) “Party” means:                                           affect either the private interests of any person or any
   (a) Specifically named persons whose substantial               plan or procedure important to the public and which
interests are being determined in the proceeding.                have no application outside the agency issuing the
   (b) Any other person who, as a matter of constitu-            memorandum.
tional right, provision of statute, or provision of agency          (b) Legal memoranda or opinions issued to an
regulation, is entitled to participate in whole or in part in    agency by the Attorney General or agency legal opin-




                                                            32
F.S. 2006                                                   ADMINISTRATIVE PROCEDURE ACT                                                       Ch. 120

ions prior to their use in connection with an agency                                            (a) The procedure provides at least the procedural
action.                                                                                      protection given by other statutes, the State Constitu-
   (c) The preparation or modification of:                                                    tion, or the United States Constitution.
   1. Agency budgets.                                                                           (b) The agency takes only that action necessary to
   2. Statements, memoranda, or instructions to                                              protect the public interest under the emergency proce-
state agencies issued by the Chief Financial Officer or                                       dure.
Comptroller as chief fiscal officer of the state and relat-                                       (c) The agency publishes in writing at the time of, or
ing or pertaining to claims for payment submitted by                                         prior to, its action the specific facts and reasons for find-
state agencies to the Chief Financial Officer or Comp-                                        ing an immediate danger to the public health, safety, or
troller.                                                                                     welfare and its reasons for concluding that the proce-
   3. Contractual provisions reached as a result of                                          dure used is fair under the circumstances. The agency
collective bargaining.                                                                       findings of immediate danger, necessity, and proce-
   4. Memoranda issued by the Executive Office of                                             dural fairness shall be judicially reviewable.
                                                                                              History.—s. 4, ch. 96-159.
the Governor relating to information resources man-
agement.                                                                                        120.53 Maintenance of orders; indexing; listing;
   (16) “Small city” means any municipality that has an                                      organizational information.—
unincarcerated population of 10,000 or less according                                           (1)(a) Each agency shall maintain:
to the most recent decennial census.                                                            1. All agency final orders.
   (17) “Small county” means any county that has an                                             2.a. A current hierarchical subject-matter index,
unincarcerated population of 75,000 or less according                                        identifying for the public any rule or order as specified
to the most recent decennial census.                                                         in this subparagraph.
   (18) “Variance” means a decision by an agency to                                             b. In lieu of the requirement for making available
grant a modification to all or part of the literal require-                                   for public inspection and copying a hierarchical subject-
ments of an agency rule to a person who is subject to                                        matter index of its orders, an agency may maintain and
the rule. Any variance shall conform to the standards                                        make available for public use an electronic database of
for variances outlined in this chapter and in the uniform                                    its orders that allows users to research and retrieve the
rules adopted pursuant to s. 120.54(5).                                                      full texts of agency orders by devising an ad hoc index-
   (19) “Waiver” means a decision by an agency not to                                        ing system employing any logical search terms in com-
apply all or part of a rule to a person who is subject to                                    mon usage which are composed by the user and which
the rule. Any waiver shall conform to the standards for                                      are contained in the orders of the agency or by descrip-
waivers outlined in this chapter and in the uniform rules                                    tive information about the order which may not be spe-
adopted pursuant to s. 120.54(5).                                                            cifically contained in the order.
   History.—s. 1, ch. 74-310; s. 1, ch. 75-191; s. 1, ch. 76-131; s. 1, ch. 77-174;
s. 12, ch. 77-290; s. 2, ch. 77-453; s. 1, ch. 78-28; s. 1, ch. 78-425; s. 1, ch. 79-20;        c. The agency orders that must be indexed,
s. 55, ch. 79-40; s. 1, ch. 79-299; s. 2, ch. 81-119; s. 1, ch. 81-180; s. 7, ch. 82-180;    unless excluded under paragraph (c) or paragraph (d),
s. 1, ch. 83-78; s. 2, ch. 83-273; s. 10, ch. 84-170; s. 15, ch. 85-80; s. 1, ch. 85-168;
s. 2, ch. 87-385; s. 1, ch. 88-367; s. 1, ch. 89-147; s. 1, ch. 91-46; s. 9, ch. 92-166;     include:
s. 50, ch. 92-279; s. 55, ch. 92-326; s. 3, ch. 96-159; s. 1, ch. 97-176; s. 2, ch.
97-286; s. 1, ch. 98-402; s. 64, ch. 99-245; s. 2, ch. 99-379; s. 895, ch. 2002-387;
                                                                                                (I) Each final agency order resulting from a pro-
s. 1, ch. 2003-94; s. 138, ch. 2003-261; s. 7, ch. 2003-286.                                 ceeding under s. 120.57 or s. 120.573.
                                                                                                (II) Each final agency order rendered pursuant to s.
   120.525 Meetings, hearings, and workshops.—                                               120.57(4) which contains a statement of agency policy
   (1) Except in the case of emergency meetings,                                             that may be the basis of future agency decisions or that
each agency shall give notice of public meetings, hear-                                      may otherwise contain a statement of precedential
ings, and workshops by publication in the Florida                                            value.
Administrative Weekly not less than 7 days before the                                           (III) Each declaratory statement issued by an
event. The notice shall include a statement of the gen-                                      agency.
eral subject matter to be considered.                                                           (IV) Each final order resulting from a proceeding
   (2) An agenda shall be prepared by the agency in                                          under s. 120.56 or s. 120.574.
time to ensure that a copy of the agenda may be                                                 3. A list of all final orders rendered pursuant to s.
received at least 7 days before the event by any person                                      120.57(4) which have been excluded from the indexing
in the state who requests a copy and who pays the rea-                                       requirement of this section, with the approval of the
sonable cost of the copy. The agenda shall contain the                                       Department of State, because they do not contain
items to be considered in order of presentation. After                                       statements of agency policy or statements of
the agenda has been made available, a change shall                                           precedential value. The list must include the name of
be made only for good cause, as determined by the                                            the parties to the proceeding and the number assigned
person designated to preside, and stated in the record.                                      to the final order.
Notification of such change shall be at the earliest prac-                                       4. All final orders listed pursuant to subparagraph
ticable time.                                                                                3.
   (3) If an agency finds that an immediate danger to                                            (b) An agency final order that must be indexed or
the public health, safety, or welfare requires immediate                                     listed pursuant to paragraph (a) must be indexed or
action, the agency may hold an emergency public                                              listed within 120 days after the order is rendered. Each
meeting and give notice of such meeting by any proce-                                        final order that must be indexed or listed pursuant to
dure that is fair under the circumstances and necessary                                      paragraph (a) must have attached a copy of the com-
to protect the public interest, if:                                                          plete text of any materials incorporated by reference;




                                                                                        33
Ch. 120                               ADMINISTRATIVE PROCEDURE ACT                                                                    F.S. 2006

however, if the quantity of the materials incorporated           (b) An agency may publish its official reporter or
makes attachment of the complete text of the materials       may contract with a publishing firm to publish its official
impractical, the order may contain a statement of the        reporter; however, if an agency contracts with a pub-
location of such materials and the manner in which the       lishing firm to publish its reporter, the agency is respon-
public may inspect or obtain copies of the materials         sible for the quality, timeliness, and usefulness of the
incorporated by reference. The Department of State           reporter. The Department of State may publish an offi-
shall establish by rule procedures for indexing final         cial reporter for an agency or may contract with a pub-
orders, and procedures of agencies for indexing orders       lishing firm to publish the reporter for the agency; how-
must be approved by the department.                          ever, if the department contracts for publication of the
    (c) Each agency must receive approval in writing         reporter, the department is responsible for the quality,
from the Department of State for:                            timeliness, and usefulness of the reporter. A reporter
    1. The specific types and categories of agency            that is designated by an agency as its official reporter
final orders that may be excluded from the indexing and
                                                             and approved by the Department of State constitutes
public inspection requirements, as determined by the
department pursuant to paragraph (d).                        the official compilation of the administrative final orders
    2. The method for maintaining indexes, lists, and        for that agency.
final orders that must be indexed or listed and made              (c) A reporter that is published by the Department
available to the public.                                     of State may be made available by annual subscription,
    3. The method by which the public may inspect or         and each agency that designates an official reporter
obtain copies of indexes, lists, and final orders.            published by the department may be charged a space
    4. A sequential numbering system which numbers           rate payable to the department. The subscription rate
all final orders required to be indexed or listed pursuant    and the space rate must be equitably apportioned to
to paragraph (a), in the order rendered.                     cover the costs of publishing the reporter.
    5. Proposed rules for implementing the require-              (d) An agency that designates an official reporter
ments of this section for indexing and making final           need not publish the full text of an agency final order
orders available for public inspection.                      that is rendered pursuant to s. 120.57(4) and that must
    (d) In determining which final orders may be              be indexed pursuant to paragraph (1)(a), if the final
excluded from the indexing and public inspection             order is preserved by the agency and made available
requirements, the Department of State may consider all       for public inspection and copying and the official
factors specified by an agency, including precedential        reporter indexes the final order and includes a synopsis
value, legal significance, and purpose. Only agency           of the order. A synopsis must include the names of the
final orders that are of limited or no precedential value,    parties to the order; any rule, statute, or constitutional
that are of limited or no legal significance, or that are     provision pertinent to the order; a summary of the facts,
ministerial in nature may be excluded.                       if included in the order, which are pertinent to the final
    (e) Each agency shall specify the specific types or       disposition; and a summary of the final disposition.
categories of agency final orders that are excluded               (3) Agency orders that must be indexed or listed
from the indexing and public inspection requirements.        are documents of continuing legal value and must be
    (f) Each agency shall specify the location or loca-      permanently preserved and made available to the pub-
tions where agency indexes, lists, and final orders that      lic. Each agency to which this chapter applies shall pro-
are required to be indexed or listed are maintained and      vide, under the direction of the Department of State, for
shall specify the method or procedure by which the
                                                             the preservation of orders as required by this chapter
public may inspect or obtain copies of indexes, lists,
                                                             and for maintaining an index to those orders.
and final orders.
    (g) Each agency shall specify all systems in use by          (4) Each agency must provide any person who
the agency to search and locate agency final orders           makes a request with a written description of its organi-
that are required to be indexed or listed, including, but    zation and the general course of its operations.
                                                                History.—s. 1, ch. 74-310; s. 2, ch. 75-191; s. 2, ch. 76-131; s. 2, ch. 79-299;
not limited to, any automated system. An agency shall        s. 1, ch. 81-296; s. 2, ch. 81-309; s. 8, ch. 83-92; s. 34, ch. 83-217; s. 3, ch. 83-273;
make the search capabilities employed by the agency          s. 1, ch. 84-203; s. 77, ch. 85-180; s. 2, ch. 87-100; s. 2, ch. 88-384; s. 44, ch.
                                                             90-136; s. 35, ch. 90-302; s. 2, ch. 91-30; s. 79, ch. 91-45; s. 1, ch. 91-191; s. 1,
available to the public subject to reasonable terms and      ch. 92-166; s. 143, ch. 92-279; s. 55, ch. 92-326; s. 757, ch. 95-147; s. 5, ch.
conditions, including a reasonable charge, as provided       96-159; s. 2, ch. 96-423; s. 2, ch. 97-176.
by s. 119.07. The agency shall specify how assistance
and information pertaining to final orders may be               120.533 Coordination of indexing by Department
obtained.                                                    of State.—The Department of State shall:
    (h) Each agency shall specify the numbering sys-           (1) Administer the coordination of the indexing,
tem used to identify agency final orders.                     management, preservation, and availability of agency
    (2)(a) An agency may comply with subparagraphs           orders that must be indexed or listed pursuant to s.
(1)(a)1. and 2. by designating an official reporter to        120.53(1).
publish and index by subject matter each agency order          (2) Provide, by rule, guidelines for the indexing of
that must be indexed and made available to the public.       agency orders. More than one system for indexing may
An agency is in compliance with subparagraph (1)(a)3.        be approved by the Department of State, including sys-
if it publishes in its designated reporter a list of each    tems or methods in use, or proposed for use, by an
agency final order that must be listed and preserves          agency. More than one system may be approved for
each listed order and makes it available for public          use by a single agency as best serves the needs of that
inspection and copying.                                      agency and the public.




                                                        34
F.S. 2006                                               ADMINISTRATIVE PROCEDURE ACT                                                  Ch. 120

  (3) Provide, by rule, for storage and retrieval sys-                               a. The agency has not had sufficient time to
tems to be maintained by agencies for indexing, and                               acquire the knowledge and experience reasonably
making available, agency orders by subject matter. The                            necessary to address a statement by rulemaking;
Department of State may approve more than one sys-                                   b. Related matters are not sufficiently resolved to
tem, including systems in use, or proposed for use, by                            enable the agency to address a statement by
an agency. Storage and retrieval systems that may be                              rulemaking; or
used by an agency include, without limitation, a desig-                              c. The agency is currently using the rulemaking
nated reporter or reporters, a microfilming system, an                             procedure expeditiously and in good faith to adopt rules
automated system, or any other system considered                                  which address the statement.
appropriate by the Department of State.                                              2. Rulemaking shall be presumed practicable to
  (4) Determine which final orders must be indexed                                 the extent necessary to provide fair notice to affected
                                                                                  persons of relevant agency procedures and applicable
for each agency.
                                                                                  principles, criteria, or standards for agency decisions
  (5) Require each agency to report to the depart-
                                                                                  unless the agency proves that:
ment concerning which types or categories of agency                                  a. Detail or precision in the establishment of princi-
orders establish precedent for each agency.                                       ples, criteria, or standards for agency decisions is not
  History.—s. 9, ch. 91-30; s. 1, ch. 91-191; s. 7, ch. 96-159.
                                                                                  reasonable under the circumstances; or
   120.536 Rulemaking authority; repeal; challenge.                                  b. The particular questions addressed are of such
   (1) A grant of rulemaking authority is necessary but                           a narrow scope that more specific resolution of the mat-
not sufficient to allow an agency to adopt a rule; a spe-                          ter is impractical outside of an adjudication to deter-
cific law to be implemented is also required. An agency                            mine the substantial interests of a party based on indi-
may adopt only rules that implement or interpret the                              vidual circumstances.
                                                                                     (b) Whenever an act of the Legislature is enacted
specific powers and duties granted by the enabling
                                                                                  which requires implementation of the act by rules of an
statute. No agency shall have authority to adopt a rule                           agency within the executive branch of state govern-
only because it is reasonably related to the purpose of                           ment, such rules shall be drafted and formally proposed
the enabling legislation and is not arbitrary and capri-                          as provided in this section within 180 days after the
cious or is within the agency’s class of powers and                               effective date of the act, unless the act provides other-
duties, nor shall an agency have the authority to imple-                          wise.
ment statutory provisions setting forth general legisla-                             (c) No statutory provision shall be delayed in its
tive intent or policy. Statutory language granting                                implementation pending an agency’s adoption of imple-
rulemaking authority or generally describing the pow-                             menting rules unless there is an express statutory pro-
ers and functions of an agency shall be construed to                              vision prohibiting its application until the adoption of
extend no further than implementing or interpreting the                           implementing rules.
specific powers and duties conferred by the same stat-                                (d) In adopting rules, all agencies must, among the
ute.                                                                              alternative approaches to any regulatory objective and
   (2) The Administrative Procedures Committee or                                 to the extent allowed by law, choose the alternative that
any substantially affected person may petition an                                 does not impose regulatory costs on the regulated per-
agency to repeal any rule, or portion thereof, because                            son, county, or city which could be reduced by the
it exceeds the rulemaking authority permitted by this                             adoption of less costly alternatives that substantially
section. Not later than 30 days after the date of filing the                       accomplish the statutory objectives.
petition if the agency is headed by an individual, or not                            (e) No agency has inherent rulemaking authority,
later than 45 days if the agency is headed by a collegial                         nor has any agency authority to establish penalties for
body, the agency shall initiate rulemaking proceedings                            violation of a rule unless the Legislature, when estab-
to repeal the rule, or portion thereof, or deny the peti-                         lishing a penalty, specifically provides that the penalty
tion, giving a written statement of its reasons for the                           applies to rules.
denial.                                                                              (f) An agency may adopt rules authorized by law
   (3) Nothing in this section shall be construed to                              and necessary to the proper implementation of a stat-
change the legal status of a rule that has otherwise                              ute prior to the effective date of the statute, but the rules
been judicially or administratively determined to be                              may not be effective until the statute upon which they
invalid.                                                                          are based is effective. An agency may not adopt retro-
  History.—s. 9, ch. 96-159; s. 3, ch. 99-379; s. 15, ch. 2000-151; s. 15, ch.    active rules, including retroactive rules intended to clar-
2005-2.                                                                           ify existing law, unless that power is expressly author-
                                                                                  ized by statute.
   120.54 Rulemaking.—                                                               (g) Each rule adopted shall contain only one sub-
   (1) GENERAL PROVISIONS APPLICABLE TO                                           ject.
ALL RULES OTHER THAN EMERGENCY RULES.—                                               (h) In rulemaking proceedings, the agency may
   (a) Rulemaking is not a matter of agency discre-                               recognize any material which may be judicially noticed,
tion. Each agency statement defined as a rule by s.                                and it may provide that materials so recognized be
120.52 shall be adopted by the rulemaking procedure                               incorporated into the record of the proceeding. Before
provided by this section as soon as feasible and practi-                          the record of any proceeding is completed, all parties
cable.                                                                            shall be provided a list of these materials and given a
   1. Rulemaking shall be presumed feasible unless                                reasonable opportunity to examine them and offer writ-
the agency proves that:                                                           ten comments or written rebuttal.




                                                                             35
Ch. 120                                ADMINISTRATIVE PROCEDURE ACT                                           F.S. 2006

   (i)1. A rule may incorporate material by reference            1. It avoids the use of obscure words and unnec-
but only as the material exists on the date the rule is       essarily long or complicated constructions; and
adopted. For purposes of the rule, changes in the mate-          2. It avoids the use of unnecessary technical or
rial are not effective unless the rule is amended to          specialized language that is understood only by mem-
incorporate the changes. A rule may not be amended            bers of particular trades or professions.
by reference only. Amendments must set out the                   (c) An agency may hold public workshops for pur-
amended rule in full in the same manner as required by        poses of rule development. An agency must hold public
the State Constitution for laws. The Department of            workshops, including workshops in various regions of
State may prescribe by rule requirements for incorpo-         the state or the agency’s service area, for purposes of
rating materials by reference pursuant to this para-          rule development if requested in writing by any affected
graph.                                                        person, unless the agency head explains in writing why
   2. Notwithstanding any contrary provision in this          a workshop is unnecessary. The explanation is not final
section, when an adopted rule of the Department of            agency action subject to review pursuant to ss.
Environmental Protection or a water management dis-           120.569 and 120.57. The failure to provide the expla-
trict is incorporated by reference in the other agency’s      nation when required may be a material error in proce-
rule to implement a provision of part IV of chapter 373,      dure pursuant to s. 120.56(1)(c). When a workshop or
subsequent amendments to the rule are not effective           public hearing is held, the agency must ensure that the
as to the incorporating rule unless the agency incorpo-       persons responsible for preparing the proposed rule
rating by reference notifies the committee and the             are available to explain the agency’s proposal and to
                                                              respond to questions or comments regarding the rule
Department of State of its intent to adopt the subse-
                                                              being developed. The workshop may be facilitated or
quent amendment, publishes notice of such intent in
                                                              mediated by a neutral third person, or the agency may
the Florida Administrative Weekly, and files with the
                                                              employ other types of dispute resolution alternatives for
Department of State a copy of the amended rule incor-         the workshop that are appropriate for rule develop-
porated by reference. Changes in the rule incorporated        ment. Notice of a rule development workshop shall be
by reference are effective as to the other agency 20          by publication in the Florida Administrative Weekly not
days after the date of the published notice and filing         less than 14 days prior to the date on which the work-
with the Department of State. The Department of State         shop is scheduled to be held and shall indicate the sub-
shall amend the history note of the incorporating rule to     ject area which will be addressed; the agency contact
show the effective date of such change. Any substan-          person; and the place, date, and time of the workshop.
tially affected person may, within 14 days after the date        (d)1. An agency may use negotiated rulemaking in
of publication of the notice of intent in the Florida         developing and adopting rules. The agency should
Administrative Weekly, file an objection to rulemaking         consider the use of negotiated rulemaking when com-
with the agency. The objection shall specify the por-         plex rules are being drafted or strong opposition to the
tions of the rule incorporated by reference to which the      rules is anticipated. The agency should consider, but is
person objects and the reasons for the objection. The         not limited to considering, whether a balanced commit-
agency shall not have the authority under this                tee of interested persons who will negotiate in good
subparagraph to adopt those portions of the rule speci-       faith can be assembled, whether the agency is willing
fied in such objection. The agency shall publish notice        to support the work of the negotiating committee, and
of the objection and of its action in response in the next    whether the agency can use the group consensus as
available issue of the Florida Administrative Weekly.         the basis for its proposed rule. Negotiated rulemaking
   (j) A rule published in the Florida Administrative         uses a committee of designated representatives to
Code must be indexed by the Department of State               draft a mutually acceptable proposed rule.
within 90 days after the rule is filed. The Department of         2. An agency that chooses to use the negotiated
State shall by rule establish procedures for indexing         rulemaking process described in this paragraph shall
rules.                                                        publish in the Florida Administrative Weekly a notice of
   (2) RULE DEVELOPMENT; WORKSHOPS;                           negotiated rulemaking that includes a listing of the rep-
NEGOTIATED RULEMAKING.—                                       resentative groups that will be invited to participate in
   (a) Except when the intended action is the repeal of       the negotiated rulemaking process. Any person who
a rule, agencies shall provide notice of the develop-         believes that his or her interest is not adequately repre-
ment of proposed rules by publication of a notice of rule     sented may apply to participate within 30 days after
development in the Florida Administrative Weekly              publication of the notice. All meetings of the negotiating
before providing notice of a proposed rule as required        committee shall be noticed and open to the public pur-
by paragraph (3)(a). The notice of rule development           suant to the provisions of this chapter. The negotiating
shall indicate the subject area to be addressed by rule       committee shall be chaired by a neutral facilitator or
development, provide a short, plain explanation of the        mediator.
purpose and effect of the proposed rule, cite the spe-           3. The agency’s decision to use negotiated
cific legal authority for the proposed rule, and include       rulemaking, its selection of the representative groups,
the preliminary text of the proposed rules, if available,     and approval or denial of an application to participate in
or a statement of how a person may promptly obtain,           the negotiated rulemaking process are not agency
without cost, a copy of any preliminary draft, if avail-      action. Nothing in this subparagraph is intended to
able.                                                         affect the rights of an affected person to challenge a
   (b) All rules should be drafted in readable lan-           proposed rule developed under this paragraph in
guage. The language is readable if:                           accordance with s. 120.56(2).




                                                         36
F.S. 2006                              ADMINISTRATIVE PROCEDURE ACT                                            Ch. 120

   (3) ADOPTION PROCEDURES.—                                  defined by s. 120.52. Whenever practicable, an agency
   (a) Notices.—                                              shall tier its rules to reduce disproportionate impacts on
   1. Prior to the adoption, amendment, or repeal of          small businesses, small counties, or small cities to
any rule other than an emergency rule, an agency,             avoid regulating small businesses, small counties, or
upon approval of the agency head, shall give notice of        small cities that do not contribute significantly to the
its intended action, setting forth a short, plain explana-    problem the rule is designed to address. An agency
tion of the purpose and effect of the proposed action;        may define “small business” to include businesses
the full text of the proposed rule or amendment and a         employing more than 100 persons, may define “small
summary thereof; a reference to the specific                   county” to include those with populations of more than
rulemaking authority pursuant to which the rule is            75,000, and may define “small city” to include those
adopted; and a reference to the section or subsection         with populations of more than 10,000, if it finds that
of the Florida Statutes or the Laws of Florida being          such a definition is necessary to adapt a rule to the
implemented, interpreted, or made specific. The notice         needs and problems of small businesses, small coun-
shall include a summary of the agency’s statement of          ties, or small cities. The agency shall consider each of
the estimated regulatory costs, if one has been pre-          the following methods for reducing the impact of the
pared, based on the factors set forth in s. 120.541(2),       proposed rule on small businesses, small counties, and
and a statement that any person who wishes to provide         small cities, or any combination of these entities:
the agency with information regarding the statement of           (I) Establishing less stringent compliance or
estimated regulatory costs, or to provide a proposal for      reporting requirements in the rule.
a lower cost regulatory alternative as provided by s.            (II) Establishing less stringent schedules or dead-
120.541(1), must do so in writing within 21 days after        lines in the rule for compliance or reporting require-
publication of the notice. The notice must state the pro-     ments.
cedure for requesting a public hearing on the proposed           (III) Consolidating or simplifying the rule’s compli-
rule. Except when the intended action is the repeal of        ance or reporting requirements.
a rule, the notice shall include a reference both to the         (IV) Establishing performance standards or best-
date on which and to the place where the notice of rule       management practices to replace design or operational
development that is required by subsection (2)                standards in the rule.
appeared.                                                        (V) Exempting small businesses, small counties, or
   2. The notice shall be published in the Florida            small cities from any or all requirements of the rule.
Administrative Weekly not less than 28 days prior to the         b.(I) If the agency determines that the proposed
intended action. The proposed rule shall be available         action will affect small businesses as defined by the
for inspection and copying by the public at the time of       agency as provided in sub-subparagraph a., the
the publication of notice.                                    agency shall send written notice of the rule to the small
   3. The notice shall be mailed to all persons named         business ombudsman of the Office of Tourism, Trade,
in the proposed rule and to all persons who, at least 14      and Economic Development not less than 28 days prior
days prior to such mailing, have made requests of the         to the intended action.
agency for advance notice of its proceedings. The                (II) Each agency shall adopt those regulatory alter-
agency shall also give such notice as is prescribed by        natives offered by the small business ombudsman and
rule to those particular classes of persons to whom the       provided to the agency no later than 21 days after the
intended action is directed.                                  ombudsman’s receipt of the written notice of the rule
   4. The adopting agency shall file with the commit-          which it finds are feasible and consistent with the stated
tee, at least 21 days prior to the proposed adoption          objectives of the proposed rule and which would
date, a copy of each rule it proposes to adopt; a             reduce the impact on small businesses. When regula-
detailed written statement of the facts and circum-           tory alternatives are offered by the small business
stances justifying the proposed rule; a copy of any           ombudsman, the 90-day period for filing the rule in
statement of estimated regulatory costs that has been         subparagraph (e)2. is extended for a period of 21 days.
prepared pursuant to s. 120.541; a statement of the              (III) If an agency does not adopt all alternatives
extent to which the proposed rule relates to federal          offered pursuant to this sub-subparagraph, it shall,
standards or rules on the same subject; and the notice        prior to rule adoption or amendment and pursuant to
required by subparagraph 1.                                   subparagraph (d)1., file a detailed written statement
   (b) Special matters to be considered in rule adop-         with the committee explaining the reasons for failure to
tion.—                                                        adopt such alternatives. Within 3 working days of the fil-
   1. Statement of estimated regulatory costs.—Prior          ing of such notice, the agency shall send a copy of such
to the adoption, amendment, or repeal of any rule other       notice to the small business ombudsman.
than an emergency rule, an agency is encouraged to               (c) Hearings.—
prepare a statement of estimated regulatory costs of             1. If the intended action concerns any rule other
the proposed rule, as provided by s. 120.541.                 than one relating exclusively to procedure or practice,
   2. Small businesses, small counties, and small cit-        the agency shall, on the request of any affected person
ies.—                                                         received within 21 days after the date of publication of
   a. Each agency, before the adoption, amendment,            the notice of intended agency action, give affected per-
or repeal of a rule, shall consider the impact of the rule    sons an opportunity to present evidence and argument
on small businesses as defined by s. 288.703 and the           on all issues under consideration. The agency may
impact of the rule on small counties or small cities as       schedule a public hearing on the rule and, if requested




                                                         37
Ch. 120                                ADMINISTRATIVE PROCEDURE ACT                                             F.S. 2006

by any affected person, shall schedule a public hearing       Department of State if the rule is required to be filed
on the rule. Any material pertinent to the issues under       with the Department of State.
consideration submitted to the agency within 21 days             5. After a rule has become effective, it may be
after the date of publication of the notice or submitted      repealed or amended only through the rulemaking pro-
at a public hearing shall be considered by the agency         cedures specified in this chapter.
and made a part of the record of the rulemaking pro-             (e) Filing for final adoption; effective date.—
ceeding.                                                         1. If the adopting agency is required to publish its
   2. Rulemaking proceedings shall be governed                rules in the Florida Administrative Code, it shall file with
solely by the provisions of this section unless a person      the Department of State three certified copies of the
timely asserts that the person’s substantial interests        rule it proposes to adopt, a summary of the rule, a sum-
will be affected in the proceeding and affirmatively           mary of any hearings held on the rule, and a detailed
demonstrates to the agency that the proceeding does           written statement of the facts and circumstances justi-
not provide adequate opportunity to protect those inter-      fying the rule. Agencies not required to publish their
ests. If the agency determines that the rulemaking pro-       rules in the Florida Administrative Code shall file one
ceeding is not adequate to protect the person’s inter-        certified copy of the proposed rule, and the other mate-
ests, it shall suspend the rulemaking proceeding and          rial required by this subparagraph, in the office of the
convene a separate proceeding under the provisions of         agency head, and such rules shall be open to the pub-
ss. 120.569 and 120.57. Similarly situated persons            lic.
may be requested to join and participate in the separate         2. A rule may not be filed for adoption less than 28
proceeding. Upon conclusion of the separate proceed-          days or more than 90 days after the notice required by
ing, the rulemaking proceeding shall be resumed.              paragraph (a), until 21 days after the notice of change
   (d) Modification or withdrawal of proposed rules.—          required by paragraph (d), until 14 days after the final
   1. After the final public hearing on the proposed           public hearing, until 21 days after preparation of a
rule, or after the time for requesting a hearing has          statement of estimated regulatory costs required under
expired, if the rule has not been changed from the rule       s. 120.541, or until the administrative law judge has
as previously filed with the committee, or contains only       rendered a decision under s. 120.56(2), whichever
technical changes, the adopting agency shall file a            applies. When a required notice of change is published
notice to that effect with the committee at least 7 days      prior to the expiration of the time to file the rule for adop-
prior to filing the rule for adoption. Any change, other
                                                              tion, the period during which a rule must be filed for
than a technical change that does not affect the sub-
                                                              adoption is extended to 45 days after the date of publi-
stance of the rule, must be supported by the record of
                                                              cation. If notice of a public hearing is published prior to
public hearings held on the rule, must be in response to
written material received on or before the date of the        the expiration of the time to file the rule for adoption, the
final public hearing, or must be in response to a pro-         period during which a rule must be filed for adoption is
posed objection by the committee. In addition, when           extended to 45 days after adjournment of the final hear-
any change is made in a proposed rule, other than a           ing on the rule, 21 days after receipt of all material
technical change, the adopting agency shall provide a         authorized to be submitted at the hearing, or 21 days
copy of a notice of change by certified mail or actual         after receipt of the transcript, if one is made, whichever
delivery to any person who requests it in writing no later    is latest. The term “public hearing” includes any public
than 21 days after the notice required in paragraph (a).      meeting held by any agency at which the rule is consid-
The agency shall file the notice of change with the com-       ered. If a petition for an administrative determination
mittee, along with the reasons for the change, and pro-       under s. 120.56(2) is filed, the period during which a
vide the notice of change to persons requesting it, at        rule must be filed for adoption is extended to 60 days
least 21 days prior to filing the rule for adoption. The       after the administrative law judge files the final order
notice of change shall be published in the Florida            with the clerk or until 60 days after subsequent judicial
Administrative Weekly at least 21 days prior to filing the     review is complete.
rule for adoption. This subparagraph does not apply to           3. At the time a rule is filed, the agency shall certify
emergency rules adopted pursuant to subsection (4).           that the time limitations prescribed by this paragraph
   2. After the notice required by paragraph (a) and          have been complied with, that all statutory rulemaking
prior to adoption, the agency may withdraw the rule in        requirements have been met, and that there is no
whole or in part.                                             administrative determination pending on the rule.
   3. After adoption and before the effective date, a            4. At the time a rule is filed, the committee shall
rule may be modified or withdrawn only in response to          certify whether the agency has responded in writing to
an objection by the committee or may be modified to            all material and timely written comments or written
extend the effective date by not more than 60 days            inquiries made on behalf of the committee. The depart-
when the committee has notified the agency that an             ment shall reject any rule not filed within the prescribed
objection to the rule is being considered.                    time limits; that does not satisfy all statutory rulemaking
   4. The agency shall give notice of its decision to         requirements; upon which an agency has not
withdraw or modify a rule in the first available issue of      responded in writing to all material and timely written
the publication in which the original notice of               inquiries or written comments; upon which an adminis-
rulemaking was published, shall notify those persons          trative determination is pending; or which does not
described in subparagraph (a)3. in accordance with the        include a statement of estimated regulatory costs, if
requirements of that subparagraph, and shall notify the       required.




                                                         38
F.S. 2006                               ADMINISTRATIVE PROCEDURE ACT                                            Ch. 120

   5. If a rule has not been adopted within the time              (d) Subject to applicable constitutional and statu-
limits imposed by this paragraph or has not been               tory provisions, an emergency rule becomes effective
adopted in compliance with all statutory rulemaking            immediately on filing, or on a date less than 20 days
requirements, the agency proposing the rule shall with-        thereafter if specified in the rule, if the adopting agency
draw the rule and give notice of its action in the next        finds that such effective date is necessary because of
available issue of the Florida Administrative Weekly.          immediate danger to the public health, safety, or wel-
   6. The proposed rule shall be adopted on being              fare.
filed with the Department of State and become effective            (5) UNIFORM RULES.—
20 days after being filed, on a later date specified in the         (a)1. By July 1, 1997, the Administration Commis-
rule, or on a date required by statute. Rules not              sion shall adopt one or more sets of uniform rules of
required to be filed with the Department of State shall         procedure which shall be reviewed by the committee
become effective when adopted by the agency head or            and filed with the Department of State. Agencies must
on a later date specified by rule or statute. If the com-       comply with the uniform rules by July 1, 1998. The uni-
mittee notifies an agency that an objection to a rule is        form rules shall establish procedures that comply with
being considered, the agency may postpone the adop-            the requirements of this chapter. On filing with the
tion of the rule to accommodate review of the rule by          department, the uniform rules shall be the rules of pro-
the committee. When an agency postpones adoption of            cedure for each agency subject to this chapter unless
a rule to accommodate review by the committee, the             the Administration Commission grants an exception to
90-day period for filing the rule is tolled until the com-      the agency under this subsection.
mittee notifies the agency that it has completed its               2. An agency may seek exceptions to the uniform
review of the rule.                                            rules of procedure by filing a petition with the Adminis-
                                                               tration Commission. The Administration Commission
For the purposes of this paragraph, the term “adminis-         shall approve exceptions to the extent necessary to
trative determination” does not include subsequent             implement other statutes, to the extent necessary to
judicial review.                                               conform to any requirement imposed as a condition
   (4) EMERGENCY RULES.—                                       precedent to receipt of federal funds or to permit per-
   (a) If an agency finds that an immediate danger to           sons in this state to receive tax benefits under federal
the public health, safety, or welfare requires emer-           law, or as required for the most efficient operation of the
gency action, the agency may adopt any rule necessi-           agency as determined by the Administration Commis-
tated by the immediate danger. The agency may adopt            sion. The reasons for the exceptions shall be published
a rule by any procedure which is fair under the circum-        in the Florida Administrative Weekly.
stances if:                                                       3. Agency rules that provide exceptions to the uni-
   1. The procedure provides at least the procedural           form rules shall not be filed with the department unless
protection given by other statutes, the State Constitu-        the Administration Commission has approved the
tion, or the United States Constitution.                       exceptions. Each agency that adopts rules that provide
   2. The agency takes only that action necessary to           exceptions to the uniform rules shall publish a separate
protect the public interest under the emergency proce-         chapter in the Florida Administrative Code that delin-
dure.                                                          eates clearly the provisions of the agency’s rules that
   3. The agency publishes in writing at the time of, or       provide exceptions to the uniform rules and specifies
prior to, its action the specific facts and reasons for find-    each alternative chosen from among those authorized
ing an immediate danger to the public health, safety, or       by the uniform rules. Each chapter shall be organized
welfare and its reasons for concluding that the proce-         in the same manner as the uniform rules.
dure used is fair under the circumstances. In any event,          (b) The uniform rules of procedure adopted by the
notice of emergency rules, other than those of educa-          commission pursuant to this subsection shall include,
tional units or units of government with jurisdiction in       but are not limited to:
only one or a part of one county, including the full text         1. Uniform rules for the scheduling of public meet-
of the rules, shall be published in the first available         ings, hearings, and workshops.
issue of the Florida Administrative Weekly and pro-               2. Uniform rules for use by each state agency that
vided to the committee. The agency’s findings of imme-          provide procedures for conducting public meetings,
diate danger, necessity, and procedural fairness shall         hearings, and workshops, and for taking evidence, tes-
be judicially reviewable.                                      timony, and argument at such public meetings, hear-
   (b) Rules pertaining to the public health, safety, or       ings, and workshops, in person and by means of com-
welfare shall include rules pertaining to perishable agri-     munications media technology. The rules shall provide
cultural commodities or rules pertaining to the interpre-      that all evidence, testimony, and argument presented
tation and implementation of the requirements of chap-         shall be afforded equal consideration, regardless of the
ters 97-102 and chapter 105 of the Election Code.              method of communication. If a public meeting, hearing,
   (c) An emergency rule adopted under this subsec-            or workshop is to be conducted by means of communi-
tion shall not be effective for a period longer than 90        cations media technology, or if attendance may be pro-
days and shall not be renewable, except during the             vided by such means, the notice shall so state. The
pendency of a challenge to proposed rules addressing           notice for public meetings, hearings, and workshops
the subject of the emergency rule. However, the                utilizing communications media technology shall state
agency may take identical action by the rulemaking             how persons interested in attending may do so and
procedures specified in this chapter.                           shall name locations, if any, where communications




                                                          39
Ch. 120                                 ADMINISTRATIVE PROCEDURE ACT                                             F.S. 2006

media technology facilities will be available. Nothing in       dispute, or that the respondent is requesting an admin-
this paragraph shall be construed to diminish the right         istrative hearing and does not dispute the material facts
to inspect public records under chapter 119. Limiting           alleged by the petitioner; and
points of access to public meetings, hearings, and                 c. A reference by file number to the administrative
workshops subject to the provisions of s. 286.011 to            complaint that the party has received from the agency
places not normally open to the public shall be pre-            and the date on which the agency pleading was
sumed to violate the right of access of the public, and         received.
any official action taken under such circumstances is
void and of no effect. Other laws relating to public meet-      The agency may provide an election-of-rights form for
ings, hearings, and workshops, including penal and              the respondent’s use in requesting a hearing, so long
remedial provisions, shall apply to public meetings,            as any form provided by the agency calls for the infor-
hearings, and workshops conducted by means of com-              mation in sub-subparagraphs a. through c. and does
munications media technology, and shall be liberally            not impose any additional requirements on a respon-
construed in their application to such public meetings,         dent in order to request a hearing, unless such require-
hearings, and workshops. As used in this                        ments are specifically authorized by law.
subparagraph, “communications media technology”                    6. Uniform rules of procedure for the filing and
means the electronic transmission of printed matter,            prompt disposition of petitions for declaratory state-
audio, full-motion video, freeze-frame video, com-              ments. The rules shall also describe the contents of the
pressed video, and digital video by any method avail-           notices that must be published in the Florida Adminis-
able.                                                           trative Weekly under s. 120.565, including any applica-
   3. Uniform rules of procedure for the filing of notice        ble time limit for the filing of petitions to intervene or
of protests and formal written protests. The Administra-        petitions for administrative hearing by persons whose
tion Commission may prescribe the form and substan-             substantial interests may be affected.
tive provisions of a required bond.                                7. Provision of a method by which each agency
   4. Uniform rules of procedure for the filing of peti-         head shall provide a description of the agency’s organi-
tions for administrative hearings pursuant to s. 120.569        zation and general course of its operations.
or s. 120.57. Such rules shall require the petition to             8. Uniform rules establishing procedures for grant-
include:                                                        ing or denying petitions for variances and waivers pur-
   a. The identification of the petitioner.                      suant to s. 120.542.
   b. A statement of when and how the petitioner                   (6) ADOPTION OF FEDERAL STANDARDS.—
received notice of the agency’s action or proposed              Notwithstanding any contrary provision of this section,
action.                                                         in the pursuance of state implementation, operation, or
   c. An explanation of how the petitioner’s substan-           enforcement of federal programs, an agency is empow-
tial interests are or will be affected by the action or pro-    ered to adopt rules substantively identical to regula-
posed action.                                                   tions adopted pursuant to federal law, in accordance
   d. A statement of all material facts disputed by the         with the following procedures:
petitioner or a statement that there are no disputed               (a) The agency shall publish notice of intent to
facts.                                                          adopt a rule pursuant to this subsection in the Florida
   e. A statement of the ultimate facts alleged, includ-        Administrative Weekly at least 21 days prior to filing the
ing a statement of the specific facts the petitioner con-        rule with the Department of State. The agency shall
tends warrant reversal or modification of the agency’s           provide a copy of the notice of intent to adopt a rule to
proposed action.                                                the committee at least 21 days prior to the date of filing
   f.    A statement of the specific rules or statutes that      with the Department of State. Prior to filing the rule with
the petitioner contends require reversal or modification         the Department of State, the agency shall consider any
of the agency’s proposed action, including an explana-          written comments received within 14 days after the
tion of how the alleged facts relate to the specific rules       date of publication of the notice of intent to adopt a rule.
or statutes.                                                    The rule shall be adopted upon filing with the Depart-
   g. A statement of the relief sought by the peti-             ment of State. Substantive changes from the rules as
tioner, stating precisely the action petitioner wishes the      noticed shall require republishing of notice as required
agency to take with respect to the proposed action.             in this subsection.
   5. Uniform rules for the filing of request for admin-            (b) Any rule adopted pursuant to this subsection
istrative hearing by a respondent in agency enforce-            shall become effective upon the date designated in the
ment and disciplinary actions. Such rules shall require         rule by the agency; however, no such rule shall become
a request to include:                                           effective earlier than the effective date of the substan-
   a. The name, address, and telephone number of                tively identical federal regulation.
the party making the request and the name, address,                (c) Any substantially affected person may, within
and telephone number of the party’s counsel or quali-           14 days after the date of publication of the notice of
fied representative upon whom service of pleadings               intent to adopt a rule, file an objection to rulemaking
and other papers shall be made;                                 with the agency. The objection shall specify the por-
   b. A statement that the respondent is requesting             tions of the proposed rule to which the person objects
an administrative hearing and disputes the material             and the specific reasons for the objection. The agency
facts alleged by the petitioner, in which case the              shall not proceed pursuant to this subsection to adopt
respondent shall identify those material facts that are in      those portions of the proposed rule specified in an




                                                           40
F.S. 2006                               ADMINISTRATIVE PROCEDURE ACT                                                                        Ch. 120

objection, unless the agency deems the objection to be          in the scope or application of the unadopted rule. The
frivolous, but may proceed pursuant to subsection (3).          agency shall file the statement with the committee. The
An objection to a proposed rule, which rule in no mate-         committee shall forward a copy of the statement to the
rial respect differs from the requirements of the federal       substantive committee with primary oversight jurisdic-
regulation upon which it is based, is deemed to be frivo-       tion of the agency in each house of the Legislature. The
lous.                                                           committee or the committee with primary oversight
   (d) Whenever any federal regulation adopted as an            jurisdiction may hold a hearing directed to the state-
agency rule pursuant to this subsection is declared             ment of the agency. The committee holding the hearing
invalid or is withdrawn, revoked, repealed, remanded,           may recommend to the Legislature the introduction of
or suspended, the agency shall, within 60 days thereaf-         legislation making the rule a statutory standard or limit-
ter, publish a notice of repeal of the substantively identi-    ing or otherwise modifying the authority of the agency.
cal agency rule in the Florida Administrative Weekly.              (8) RULEMAKING RECORD.—In all rulemaking
Such repeal is effective upon publication of the notice.        proceedings the agency shall compile a rulemaking
Whenever any federal regulation adopted as an                   record. The record shall include, if applicable, copies
agency rule pursuant to this subsection is substantially        of:
amended, the agency may adopt the amended regula-                  (a) All notices given for the proposed rule.
tion as a rule. If the amended regulation is not adopted           (b) Any statement of estimated regulatory costs for
as a rule within 180 days after the effective date of the       the rule.
amended regulation, the original rule is deemed                    (c) A written summary of hearings on the proposed
repealed and the agency shall publish a notice of               rule.
repeal of the original agency rule in the next available           (d) The written comments and responses to written
Florida Administrative Weekly.                                  comments as required by this section and s. 120.541.
   (e) Whenever all or part of any rule proposed for               (e) All notices and findings made under subsection
adoption by the agency is substantively identical to a          (4).
regulation adopted pursuant to federal law, such rule              (f) All materials filed by the agency with the com-
shall be written in a manner so that the rule specifically       mittee under subsection (3).
references the regulation whenever possible.                       (g) All materials filed with the Department of State
   (7) PETITION TO INITIATE RULEMAKING.—                        under subsection (3).
   (a) Any person regulated by an agency or having                 (h) All written inquiries from standing committees of
substantial interest in an agency rule may petition an          the Legislature concerning the rule.
agency to adopt, amend, or repeal a rule or to provide
the minimum public information required by this chap-           Each state agency shall retain the record of rulemaking
ter. The petition shall specify the proposed rule and           as long as the rule is in effect. When a rule is no longer
action requested. Not later than 30 calendar days fol-          in effect, the record may be destroyed pursuant to the
lowing the date of filing a petition, the agency shall ini-      records-retention schedule developed under s.
tiate rulemaking proceedings under this chapter, other-         257.36(6).
                                                                   History.—s. 1, ch. 74-310; s. 3, ch. 75-191; s. 3, ch. 76-131; ss. 1, 2, ch. 76-276;
wise comply with the requested action, or deny the peti-        s. 1, ch. 77-174; s. 13, ch. 77-290; s. 3, ch. 77-453; s. 2, ch. 78-28; s. 2, ch. 78-425;
tion with a written statement of its reasons for the            s. 7, ch. 79-3; s. 3, ch. 79-299; s. 69, ch. 79-400; s. 5, ch. 80-391; s. 1, ch. 81-309;
                                                                s. 2, ch. 83-351; s. 1, ch. 84-173; s. 2, ch. 84-203; s. 7, ch. 85-104; s. 1, ch. 86-30;
denial.                                                         s. 3, ch. 87-385; s. 36, ch. 90-302; ss. 2, 4, 7, ch. 92-166; s. 63, ch. 93-187; s. 758,
   (b) If the petition filed under this subsection is            ch. 95-147; s. 6, ch. 95-295; s. 10, ch. 96-159; s. 6, ch. 96-320; s. 9, ch. 96-370;
                                                                s. 3, ch. 97-176; s. 3, ch. 98-200; s. 4, ch. 99-379; s. 9, ch. 2001-75; s. 2, ch.
directed to an existing rule which the agency has not           2003-94; s. 50, ch. 2005-278; s. 3, ch. 2006-82.
adopted by the rulemaking procedures or requirements
set forth in this chapter, the agency shall, not later than        120.541 Statement of estimated regulatory costs.
30 days following the date of filing a petition, initiate           (1)(a) A substantially affected person, within 21
rulemaking, or provide notice in the Florida Administra-        days after publication of the notice provided under s.
tive Weekly that the agency will hold a public hearing          120.54(3)(a), may submit to an agency a good faith
on the petition within 30 days after publication of the         written proposal for a lower cost regulatory alternative
notice. The purpose of the public hearing is to consider        to a proposed rule which substantially accomplishes
the comments of the public directed to the agency rule          the objectives of the law being implemented. The pro-
which has not been adopted by the rulemaking proce-             posal may include the alternative of not adopting any
dures or requirements of this chapter, its scope and            rule, so long as the proposal explains how the lower
application, and to consider whether the public interest        costs and objectives of the law will be achieved by not
is served adequately by the application of the rule on a        adopting any rule. If such a proposal is submitted, the
case-by-case basis, as contrasted with its adoption by          90-day period for filing the rule is extended 21 days.
the rulemaking procedures or requirements set forth in             (b) Upon the submission of the lower cost regula-
this chapter.                                                   tory alternative, the agency shall prepare a statement
   (c) Within 30 days following the public hearing pro-         of estimated regulatory costs as provided in subsection
vided for by paragraph (b), if the agency does not ini-         (2), or shall revise its prior statement of estimated regu-
tiate rulemaking or otherwise comply with the                   latory costs, and either adopt the alternative or give a
requested action, the agency shall publish in the Flor-         statement of the reasons for rejecting the alternative in
ida Administrative Weekly a statement of its reasons for        favor of the proposed rule. The failure of the agency to
not initiating rulemaking or otherwise complying with           prepare or revise the statement of estimated regulatory
the requested action, and of any changes it will make           costs as provided in this paragraph is a material failure




                                                           41
Ch. 120                                          ADMINISTRATIVE PROCEDURE ACT                                     F.S. 2006

to follow the applicable rulemaking procedures or                    120.542 Variances and waivers.—
requirements set forth in this chapter. An agency                    (1) Strict application of uniformly applicable rule
required to prepare or revise a statement of estimated            requirements can lead to unreasonable, unfair, and
regulatory costs as provided in this paragraph shall              unintended results in particular instances. The Legisla-
make it available to the person who submits the lower             ture finds that it is appropriate in such cases to adopt a
cost regulatory alternative and to the public prior to fil-        procedure for agencies to provide relief to persons sub-
ing the rule for adoption.                                        ject to regulation. A public employee is not a person
   (c) No rule shall be declared invalid because it               subject to regulation under this section for the purpose
imposes regulatory costs on the regulated person,                 of petitioning for a variance or waiver to a rule that
county, or city which could be reduced by the adoption            affects that public employee in his or her capacity as a
of less costly alternatives that substantially accomplish         public employee. Agencies are authorized to grant vari-
the statutory objectives, and no rule shall be declared           ances and waivers to requirements of their rules
invalid based upon a challenge to the agency’s state-             consistent with this section and with rules adopted
ment of estimated regulatory costs, unless:                       under the authority of this section. An agency may limit
                                                                  the duration of any grant of a variance or waiver or oth-
   1. The issue is raised in an administrative pro-
                                                                  erwise impose conditions on the grant only to the extent
ceeding within 1 year after the effective date of the rule;
                                                                  necessary for the purpose of the underlying statute to
and                                                               be achieved. This section does not authorize agencies
   2. The substantial interests of the person chal-               to grant variances or waivers to statutes or to rules
lenging the agency’s rejection of, or failure to consider,        required by the Federal Government for the agency’s
the lower cost regulatory alternative are materially              implementation or retention of any federally approved
affected by the rejection; and                                    or delegated program, except as allowed by the pro-
   3.a. The agency has failed to prepare or revise the            gram or when the variance or waiver is also approved
statement of estimated regulatory costs as required by            by the appropriate agency of the Federal Government.
paragraph (b); or                                                 This section is supplemental to, and does not abrogate,
   b. The challenge is to the agency’s rejection under            the variance and waiver provisions in any other statute.
paragraph (b) of a lower cost regulatory alternative sub-            (2) Variances and waivers shall be granted when
mitted under paragraph (a).                                       the person subject to the rule demonstrates that the
   (2) A statement of estimated regulatory costs shall            purpose of the underlying statute will be or has been
include:                                                          achieved by other means by the person and when
   (a) A good faith estimate of the number of individu-           application of a rule would create a substantial hard-
als and entities likely to be required to comply with the         ship or would violate principles of fairness. For pur-
rule, together with a general description of the types of         poses of this section, “substantial hardship” means a
individuals likely to be affected by the rule.                    demonstrated economic, technological, legal, or other
   (b) A good faith estimate of the cost to the agency,           type of hardship to the person requesting the variance
and to any other state and local government entities, of          or waiver. For purposes of this section, “principles of
implementing and enforcing the proposed rule, and any             fairness” are violated when the literal application of a
anticipated effect on state or local revenues.                    rule affects a particular person in a manner significantly
   (c) A good faith estimate of the transactional costs           different from the way it affects other similarly situated
                                                                  persons who are subject to the rule.
likely to be incurred by individuals and entities, includ-
                                                                     (3) The Governor and Cabinet, sitting as the
ing local government entities, required to comply with
                                                                  Administration Commission, shall adopt uniform rules
the requirements of the rule. As used in this paragraph,          of procedure pursuant to the requirements of s.
“transactional costs” are direct costs that are readily           120.54(5) establishing procedures for granting or deny-
ascertainable based upon standard business prac-                  ing petitions for variances and waivers. The uniform
tices, and include filing fees, the cost of obtaining a            rules shall include procedures for the granting, deny-
license, the cost of equipment required to be installed           ing, or revoking of emergency and temporary variances
or used or procedures required to be employed in com-             and waivers. Such provisions may provide for expe-
plying with the rule, additional operating costs incurred,        dited timeframes, waiver of or limited public notice, and
and the cost of monitoring and reporting.                         limitations on comments on the petition in the case of
   (d) An analysis of the impact on small businesses              such temporary or emergency variances and waivers.
as defined by s. 288.703, and an analysis of the impact               (4) Agencies shall advise persons of the remedies
on small counties and small cities as defined by s.                available through this section and shall provide copies
120.52.                                                           of this section, the uniform rules on variances and waiv-
   (e) Any additional information that the agency                 ers, and, if requested, the underlying statute, to per-
determines may be useful.                                         sons who inquire about the possibility of relief from rule
   (f) In the statement or revised statement, which-              requirements.
ever applies, a description of any good faith written pro-           (5) A person who is subject to regulation by an
posal submitted under paragraph (1)(a) and either a               agency rule may file a petition with that agency, with a
statement adopting the alternative or a statement of the          copy to the committee, requesting a variance or waiver
reasons for rejecting the alternative in favor of the pro-        from the agency’s rule. In addition to any requirements
posed rule.                                                       mandated by the uniform rules, each petition shall
 History.—s. 11, ch. 96-159; s. 4, ch. 97-176.                    specify:




                                                             42
F.S. 2006                               ADMINISTRATIVE PROCEDURE ACT                                               Ch. 120

   (a) The rule from which a variance or waiver is                (9) Each agency shall maintain a record of the type
requested.                                                     and disposition of each petition, including temporary or
   (b) The type of action requested.                           emergency variances and waivers, filed pursuant to
   (c) The specific facts that would justify a waiver or        this section. On October 1 of each year, each agency
variance for the petitioner.                                   shall file a report with the Governor, the President of the
   (d) The reason why the variance or the waiver               Senate, and the Speaker of the House of Representa-
requested would serve the purposes of the underlying           tives listing the number of petitions filed requesting vari-
statute.                                                       ances to each agency rule, the number of petitions filed
   (6) Within 15 days after receipt of a petition for vari-    requesting waivers to each agency rule, and the dispo-
ance or waiver, an agency shall provide notice of the          sition of all petitions. Temporary or emergency vari-
petition to the Department of State, which shall publish       ances and waivers, and the reasons for granting or
notice of the petition in the first available issue of the      denying temporary or emergency variances and waiv-
Florida Administrative Weekly. The notice shall contain        ers, shall be identified separately from other waivers
the name of the petitioner, the date the petition was          and variances.
filed, the rule number and nature of the rule from which         History.—s. 12, ch. 96-159; s. 5, ch. 97-176.
variance or waiver is sought, and an explanation of how
a copy of the petition can be obtained. The uniform               120.545 Committee review of agency rules.—
rules shall provide a means for interested persons to             (1) As a legislative check on legislatively created
provide comments on the petition.                              authority, the committee shall examine each proposed
   (7) Except for requests for emergency variances or          rule, except for those proposed rules exempted by s.
waivers, within 30 days after receipt of a petition for a      120.81(1)(e) and (2), and its accompanying material,
variance or waiver, an agency shall review the petition        and each emergency rule, and may examine any exist-
and request submittal of all additional information that       ing rule, for the purpose of determining whether:
the agency is permitted by this section to require.               (a) The rule is an invalid exercise of delegated leg-
Within 30 days after receipt of such additional informa-       islative authority.
tion, the agency shall review it and may request only             (b) The statutory authority for the rule has been
that information needed to clarify the additional infor-       repealed.
mation or to answer new questions raised by or directly           (c) The rule reiterates or paraphrases statutory
related to the additional information. If the petitioner       material.
asserts that any request for additional information is not        (d) The rule is in proper form.
authorized by law or by rule of the affected agency, the          (e) The notice given prior to its adoption was suffi-
agency shall proceed, at the petitioner’s written              cient to give adequate notice of the purpose and effect
request, to process the petition.                              of the rule.
   (8) An agency shall grant or deny a petition for vari-         (f) The rule is consistent with expressed legislative
ance or waiver within 90 days after receipt of the origi-      intent pertaining to the specific provisions of law which
nal petition, the last item of timely requested additional     the rule implements.
material, or the petitioner’s written request to finish pro-       (g) The rule is necessary to accomplish the appar-
cessing the petition. A petition not granted or denied         ent or expressed objectives of the specific provision of
within 90 days after receipt of a completed petition is        law which the rule implements.
deemed approved. A copy of the order granting or                  (h) The rule is a reasonable implementation of the
denying the petition shall be filed with the committee          law as it affects the convenience of the general public
and shall contain a statement of the relevant facts and        or persons particularly affected by the rule.
reasons supporting the agency’s action. The agency                (i) The rule could be made less complex or more
shall provide notice of the disposition of the petition to     easily comprehensible to the general public.
the Department of State, which shall publish the notice           (j) The rule does not impose regulatory costs on
in the next available issue of the Florida Administrative      the regulated person, county, or city which could be
Weekly. The notice shall contain the name of the peti-         reduced by the adoption of less costly alternatives that
tioner, the date the petition was filed, the rule number        substantially accomplish the statutory objectives.
and nature of the rule from which the waiver or variance          (k) The rule will require additional appropriations.
is sought, a reference to the place and date of publica-          (l) If the rule is an emergency rule, there exists an
tion of the notice of the petition, the date of the order      emergency justifying the promulgation of such rule, the
denying or approving the variance or waiver, the gen-          agency has exceeded the scope of its statutory author-
eral basis for the agency decision, and an explanation         ity, and the rule was promulgated in compliance with
of how a copy of the order can be obtained. The agen-          the requirements and limitations of s. 120.54(4).
cy’s decision to grant or deny the petition shall be sup-         (2) The committee may request from an agency
ported by competent substantial evidence and is sub-           such information as is reasonably necessary for exami-
ject to ss. 120.569 and 120.57. Any proceeding pursu-          nation of a rule as required by subsection (1). The com-
ant to ss. 120.569 and 120.57 in regard to a variance or       mittee shall consult with legislative standing commit-
waiver shall be limited to the agency action on the            tees with jurisdiction over the subject areas. If the com-
request for the variance or waiver, except that a pro-         mittee objects to an emergency rule or a proposed or
ceeding in regard to a variance or waiver may be con-          existing rule, it shall, within 5 days of the objection, cer-
solidated with any other proceeding authorized by this         tify that fact to the agency whose rule has been exam-
chapter.                                                       ined and include with the certification a statement




                                                          43
Ch. 120                                 ADMINISTRATIVE PROCEDURE ACT                                           F.S. 2006

detailing its objections with particularity. The committee        (6) If an agency elects to amend or repeal an exist-
shall notify the Speaker of the House of Representa-           ing rule as a result of a committee objection, it shall
tives and the President of the Senate of any objection         complete the process within 90 days after giving notice
to an agency rule concurrent with certification of that         in the Florida Administrative Weekly.
fact to the agency. Such notice shall include a copy of           (7) Failure of the agency to respond to a committee
the rule and the statement detailing the committee’s           objection to a proposed rule within the time prescribed
objections to the rule.                                        in subsection (3) shall constitute withdrawal of the rule
   (3) Within 30 days of receipt of the objection, if the      in its entirety. In this event, the committee shall notify
agency is headed by an individual, or within 45 days of        the Department of State that the agency, by its failure
receipt of the objection, if the agency is headed by a         to respond to a committee objection, has elected to
collegial body, the agency shall:                              withdraw the proposed rule. Upon receipt of the com-
   (a) If the rule is a proposed rule:                         mittee’s notice, the Department of State shall publish a
   1. Modify the rule to meet the committee’s objec-           notice to that effect in the next available issue of the
tion;                                                          Florida Administrative Weekly. Upon publication of the
   2. Withdraw the rule in its entirety; or                    notice, the proposed rule shall be stricken from the files
   3. Refuse to modify or withdraw the rule.                   of the Department of State and the files of the agency.
   (b) If the rule is an existing rule:                           (8) Failure of the agency to respond to a committee
   1. Notify the committee that it has elected to              objection to an existing rule within the time prescribed
amend the rule to meet the committee’s objection and           in subsection (3) shall constitute a refusal to repeal the
initiate the amendment procedure;                              rule.
   2. Notify the committee that it has elected to repeal          (9) If the committee objects to a proposed or exist-
the rule and initiate the repeal procedure; or                 ing rule and the agency refuses to modify, amend, with-
   3. Notify the committee that it refuses to amend or         draw, or repeal the rule, the committee shall file with the
repeal the rule.                                               Department of State a notice of the objection, detailing
   (c) If the rule is either an existing or a proposed rule    with particularity its objection to the rule. The Depart-
and the objection is to the statement of estimated regu-       ment of State shall publish this notice in the Florida
latory costs:                                                  Administrative Weekly and shall publish, as a history
   1. Prepare a corrected statement of estimated               note to the rule in the Florida Administrative Code, a
                                                               reference to the committee’s objection and to the issue
regulatory costs, give notice of the availability of the
                                                               of the Weekly in which the full text thereof appears.
corrected statement in the first available issue of the
                                                                  (10)(a) If the committee objects to a proposed or
Florida Administrative Weekly, and file a copy of the
                                                               existing rule, or portion thereof, and the agency fails to
corrected statement with the committee; or
                                                               initiate administrative action to modify, amend, with-
   2. Notify the committee that it refuses to prepare a        draw, or repeal the rule consistent with the objection
corrected statement of estimated regulatory costs.             within 60 days after the objection, or thereafter fails to
   (4) If the agency elects to modify a proposed rule to       proceed in good faith to complete such action, the com-
meet the committee’s objection, it shall make only such        mittee may submit to the President of the Senate and
modifications as are necessary to meet the objection            the Speaker of the House of Representatives a recom-
and shall resubmit the rule to the committee. The              mendation that legislation be introduced to modify or
agency shall give notice of its election to modify a pro-      suspend the adoption of the proposed rule, or amend or
posed rule to meet the committee’s objection by pub-           repeal the rule, or portion thereof.
lishing a notice of change in the first available issue of         (b)1. If the committee votes to recommend the
the Florida Administrative Weekly, but shall not be            introduction of legislation to modify or suspend the
required to conduct a public hearing. If the agency            adoption of a proposed rule, or amend or repeal a rule,
elects to amend an existing rule to meet the commit-           the committee shall, within 5 days after this determina-
tee’s objection, it shall notify the committee in writing      tion, certify that fact to the agency whose rule or pro-
and shall initiate the amendment procedure by giving           posed rule has been examined. The committee may
notice in the next available issue of the Florida Adminis-     request that the agency temporarily suspend the rule or
trative Weekly. The committee shall give priority to           suspend the adoption of the proposed rule, pending
rules so modified or amended when setting its agenda.           consideration of proposed legislation during the next
   (5) If the agency elects to withdraw a proposed rule        regular session of the Legislature.
as a result of a committee objection, it shall notify the         2. Within 30 days after receipt of the certification,
committee, in writing, of its election and shall give          if the agency is headed by an individual, or within 45
notice of the withdrawal in the next available issue of        days after receipt of the certification, if the agency is
the Florida Administrative Weekly. The rule shall be           headed by a collegial body, the agency shall either:
withdrawn without a public hearing, effective upon pub-           a. Temporarily suspend the rule or suspend the
lication of the notice in the Florida Administrative           adoption of the proposed rule; or
Weekly. If the agency elects to repeal an existing rule           b. Notify the committee in writing that it refuses to
as a result of a committee objection, it shall notify the      temporarily suspend the rule or suspend the adoption
committee, in writing, of its election and shall initiate      of the proposed rule.
rulemaking procedures for that purpose by giving                  3. If the agency elects to temporarily suspend the
notice in the next available issue of the Florida Adminis-     rule or suspend the adoption of the proposed rule, it
trative Weekly.                                                shall give notice of the suspension in the Florida




                                                          44
F.S. 2006                                                ADMINISTRATIVE PROCEDURE ACT                                                      Ch. 120

Administrative Weekly. The rule or the rule adoption                                       2. Rules general in form but applicable to only one
process shall be suspended upon publication of the                                      school district, community college district, or county, or
notice. An agency shall not base any agency action on                                   a part thereof, or state university rules relating to inter-
a suspended rule or suspended proposed rule, or por-                                    nal personnel or business and finance shall not be pub-
tion thereof, prior to expiration of the suspension. A                                  lished in the Florida Administrative Code. Exclusion
suspended rule or suspended proposed rule, or portion                                   from publication in the Florida Administrative Code
thereof, continues to be subject to administrative deter-                               shall not affect the validity or effectiveness of such
mination and judicial review as provided by law.                                        rules.
   4. Failure of an agency to respond to committee                                         3. At the beginning of the section of the code deal-
certification within the time prescribed by subparagraph                                 ing with an agency that files copies of its rules with the
2. constitutes a refusal to suspend the rule or to sus-                                 department, the department shall publish the address
pend the adoption of the proposed rule.                                                 and telephone number of the executive offices of each
   (c) The committee shall prepare bills to modify or                                   agency, the manner by which the agency indexes its
suspend the adoption of the proposed rule or amend or                                   rules, a listing of all rules of that agency excluded from
repeal the rule, or portion thereof, in accordance with                                 publication in the code, and a statement as to where
the rules of the Senate and the House of Representa-                                    those rules may be inspected.
tives for prefiling and introduction in the next regular
                                                                                           4. Forms shall not be published in the Florida
session of the Legislature. The proposed bill shall be
presented to the President of the Senate and the                                        Administrative Code; but any form which an agency
Speaker of the House of Representatives with the com-                                   uses in its dealings with the public, along with any
mittee recommendation.                                                                  accompanying instructions, shall be filed with the com-
   (d) If a bill to suspend the adoption of a proposed                                  mittee before it is used. Any form or instruction which
rule is enacted into law, the proposed rule is suspended                                meets the definition of “rule” provided in s. 120.52 shall
until specific delegated legislative authority for the pro-                              be incorporated by reference into the appropriate rule.
posed rule has been enacted. If a bill to suspend the                                   The reference shall specifically state that the form is
adoption of a proposed rule fails to become law, any                                    being incorporated by reference and shall include the
temporary agency suspension of the rule shall expire.                                   number, title, and effective date of the form and an
If a bill to modify a proposed rule or amend a rule is                                  explanation of how the form may be obtained.
enacted into law, the suspension shall expire upon                                         (b) Publish a weekly publication entitled the “Flor-
publication of notice of modification or amendment in                                    ida Administrative Weekly,” which shall contain:
the Florida Administrative Weekly. If a bill to repeal a                                   1. Notice of adoption of, and an index to, all rules
rule is enacted into law, the suspension shall remain in                                filed during the preceding week.
effect until notification of repeal of the rule is published                                2. All notices required by s. 120.54(3)(a), showing
in the Florida Administrative Weekly.                                                   the text of all rules proposed for consideration or a ref-
   (e) The Department of State shall publish in the                                     erence to the location in the Florida Administrative
next available issue of the Florida Administrative                                      Weekly where the text of the proposed rules is pub-
Weekly the final legislative action taken. If a bill to mod-                             lished.
ify or suspend the adoption of the proposed rule or                                        3. All notices of public meetings, hearings, and
amend or repeal the rule, or portion thereof, is enacted                                workshops conducted in accordance with the provi-
into law, the Department of State shall conform the rule                                sions of s. 120.525, including a statement of the man-
or portion of the rule to the provisions of the law in the                              ner in which a copy of the agenda may be obtained.
Florida Administrative Code and publish a reference to                                     4. A notice of each request for authorization to
the law as a history note to the rule.                                                  amend or repeal an existing uniform rule or for the
   History.—s. 4, ch. 76-131; s. 1, ch. 77-174; s. 6, ch. 80-391; s. 3, ch. 81-309;
s. 4, ch. 87-385; s. 8, ch. 92-166; s. 20, ch. 95-280; s. 14, ch. 96-159; s. 16, ch.
                                                                                        adoption of new uniform rules.
2000-151.                                                                                  5. Notice of petitions for declaratory statements or
                                                                                        administrative determinations.
  1120.55 Publication.—                                                                    6. A summary of each objection to any rule filed by
   (1) The Department of State shall:                                                   the Administrative Procedures Committee during the
   (a)1. Through a continuous revision system, com-                                     preceding week.
pile and publish the “Florida Administrative Code.” The                                    7. Any other material required or authorized by law
Florida Administrative Code shall contain all rules                                     or deemed useful by the department.
adopted by each agency, citing the specific rulemaking
authority pursuant to which each rule was adopted, all                                  The department may contract with a publishing firm for
history notes as authorized in s. 120.545(9), and com-                                  publication of the Florida Administrative Weekly.
plete indexes to all rules contained in the code. Supple-                                  (c) Prescribe by rule the style and form required for
mentation shall be made as often as practicable, but at                                 rules submitted for filing and establish the form for their
least monthly. The department may contract with a                                       certification.
publishing firm for the publication, in a timely and useful                                 (d) Correct grammatical, typographical, and like
form, of the Florida Administrative Code; however, the                                  errors not affecting the construction or meaning of the
department shall retain responsibility for the code as                                  rules, after having obtained the advice and consent of
provided in this section. This publication shall be the                                 the appropriate agency, and insert history notes.
official compilation of the administrative rules of this                                    (e) Make copies of the Florida Administrative
state. The Department of State shall retain the copy-                                   Weekly available on an annual subscription basis com-
right over the Florida Administrative Code.                                             puted to cover a pro rata share of 50 percent of the




                                                                                   45
Ch. 120                                                     ADMINISTRATIVE PROCEDURE ACT                                                                                F.S. 2006

costs related to the publication of the Florida Adminis-                                    each rule was adopted, all history notes as authorized in s. 120.545(9), and com-
                                                                                            plete indexes to all rules contained in the code. Supplementation shall be made as
trative Weekly.                                                                             often as practicable, but at least monthly. The department may contract with a pub-
   (f) Charge each agency using the Florida Adminis-                                        lishing firm for the publication, in a timely and useful form, of the Florida Administra-
                                                                                            tive Code; however, the department shall retain responsibility for the code as pro-
trative Weekly a space rate computed to cover a pro                                         vided in this section. This publication shall be the official compilation of the admin-
rata share of 50 percent of the costs related to the Flor-                                  istrative rules of this state. The Department of State shall retain the copyright over
                                                                                            the Florida Administrative Code.
ida Administrative Weekly.                                                                      2. Rules general in form but applicable to only one school district, community
   (2) Each agency shall print or distribute copies of its                                  college district, or county, or a part thereof, or state university rules relating to inter-
                                                                                            nal personnel or business and finance shall not be published in the Florida Admin-
rules, citing the specific rulemaking authority pursuant                                     istrative Code. Exclusion from publication in the Florida Administrative Code shall
to which each rule was adopted.                                                             not affect the validity or effectiveness of such rules.
                                                                                                3. At the beginning of the section of the code dealing with an agency that files
   (3) Any publication of a proposed rule promulgated                                       copies of its rules with the department, the department shall publish the address
by an agency, whether published in the Florida Admin-                                       and telephone number of the executive offices of each agency, the manner by
                                                                                            which the agency indexes its rules, a listing of all rules of that agency excluded
istrative Code or elsewhere, shall include, along with                                      from publication in the code, and a statement as to where those rules may be
the rule, the name of the person or persons originating                                     inspected.
                                                                                                4. Forms shall not be published in the Florida Administrative Code; but any
such rule, the name of the supervisor or person who                                         form which an agency uses in its dealings with the public, along with any accompa-
approved the rule, and the date upon which the rule                                         nying instructions, shall be filed with the committee before it is used. Any form or
                                                                                            instruction which meets the definition of “rule” provided in s. 120.52 shall be incor-
was approved.                                                                               porated by reference into the appropriate rule. The reference shall specifically
   (4)(a) Each year the Department of State shall fur-                                      state that the form is being incorporated by reference and shall include the number,
                                                                                            title, and effective date of the form and an explanation of how the form may be
nish the Florida Administrative Weekly, without charge                                      obtained. Each form created by an agency which is incorporated by reference in
and upon request, as follows:                                                               a rule notice of which is given under s. 120.54(3)(a) after December 31, 2007, must
                                                                                            clearly display the number, title, and effective date of the form and the number of
   1. One subscription to each federal and state court                                      the rule in which the form is incorporated.
having jurisdiction over the residents of the state; the                                        (b) Electronically publish on an Internet website managed by the department
                                                                                            a weekly publication entitled the “Florida Administrative Weekly,” which shall serve
Legislative Library; each state university library; the                                     as the official Internet website for such publication and must contain:
State Library; each depository library designated pur-                                          1. Notice of adoption of, and an index to, all rules filed during the preceding
suant to s. 257.05; and each standing committee of the                                      week.
                                                                                                2. All notices required by s. 120.54(3)(a), showing the text of all rules proposed
Senate and House of Representatives and each state                                          for consideration.
legislator.                                                                                     3. All notices of public meetings, hearings, and workshops conducted in
                                                                                            accordance with the provisions of s. 120.525, including a statement of the manner
   2. Two subscriptions to each state department.                                           in which a copy of the agenda may be obtained.
   3. Three subscriptions to the library of the                                                 4. A notice of each request for authorization to amend or repeal an existing uni-
                                                                                            form rule or for the adoption of new uniform rules.
Supreme Court of Florida, the library of each state dis-                                        5. Notice of petitions for declaratory statements or administrative determina-
trict court of appeal, the division, the library of the Attor-                              tions.
                                                                                                6. A summary of each objection to any rule filed by the Administrative Proce-
ney General, each law school library in Florida, the                                        dures Committee during the preceding week.
Secretary of the Senate, and the Clerk of the House of                                          7. A cumulative list of all rules that have been proposed but not filed for adop-
                                                                                            tion.
Representatives.                                                                                8. Any other material required or authorized by law or deemed useful by the
   4. Ten subscriptions to the committee.                                                   department.
   (b) The Department of State shall furnish one copy                                       The department shall publish a printed version of the Florida Administrative
of the Florida Administrative Weekly, at no cost, to each                                   Weekly and make copies available on an annual subscription basis. The depart-
                                                                                            ment may contract with a publishing firm for printed publication of the Florida
clerk of the circuit court and each state department, for                                   Administrative Weekly.
posting for public inspection.                                                                 (c) Review notices for compliance with format and numbering requirements
                                                                                            before publishing them on the Florida Administrative Weekly Internet website.
   (5)(a) All fees and moneys collected by the Depart-                                         (d) Prescribe by rule the style and form required for rules submitted for filing
ment of State under this chapter shall be deposited in                                      and establish the form for their certification.
the Records Management Trust Fund for the purpose                                              (e) Correct grammatical, typographical, and like errors not affecting the con-
                                                                                            struction or meaning of the rules, after having obtained the advice and consent of
of paying for the publication and distribution of the Flor-                                 the appropriate agency, and insert history notes.
ida Administrative Code and the Florida Administrative                                         (f) Charge each agency using the Florida Administrative Weekly a space rate
                                                                                            to cover the costs related to the Florida Administrative Weekly and the Florida
Weekly and for associated costs incurred by the                                             Administrative Code.
department in carrying out this chapter.                                                       (g) Maintain a permanent record of all notices published in the Florida Adminis-
                                                                                            trative Weekly.
   (b) The unencumbered balance in the Records                                                 (2) The Florida Administrative Weekly Internet website must allow users to:
Management Trust Fund for fees collected pursuant to                                           (a) Search for notices by type, publication date, rule number, word, subject,
this chapter shall not exceed $300,000 at the beginning                                     and agency;
                                                                                               (b) Search a database that makes available all notices published on the
of each fiscal year, and any excess shall be transferred                                     website for a period of at least 5 years;
to the General Revenue Fund.                                                                   (c) Subscribe to an automated e-mail notification of selected notices;
                                                                                               (d) View agency forms incorporated by reference in proposed rules; and
   (c) It is the intent of the Legislature that the Florida                                    (e) Comment on proposed rules.
Administrative Weekly be supported entirely from funds                                         (3) Publication of material required by paragraph (1)(b) on the Florida Adminis-
                                                                                            trative Weekly Internet website does not preclude publication of such material on
collected for subscriptions to and advertisements in the                                    an agency’s website or by other means.
Florida Administrative Weekly.                                                                 (4) Each agency shall provide copies of its rules upon request, with citations to
   History.—s. 1, ch. 74-310; s. 1, ch. 75-107; s. 4, ch. 75-191; s. 5, ch. 76-131;         the grant of rulemaking authority and the specific law implemented for each rule.
s. 1, ch. 77-174; s. 4, ch. 77-453; s. 3, ch. 78-425; s. 4, ch. 79-299; s. 7, ch. 80-391;      (5) Any publication of a proposed rule promulgated by an agency, whether
s. 4, ch. 81-309; s. 1, ch. 82-19; s. 1, ch. 82-47; s. 3, ch. 83-351; s. 3, ch. 84-203;     published in the Florida Administrative Code or elsewhere, shall include, along with
s. 17, ch. 87-224; s. 1, ch. 87-322; s. 20, ch. 91-45; s. 15, ch. 96-159; s. 896, ch.       the rule, the name of the person or persons originating such rule, the name of the
2002-387; s. 5, ch. 2004-235; s. 14, ch. 2004-335; s. 4, ch. 2006-82.                       supervisor or person who approved the rule, and the date upon which the rule was
 1Note.—Section 4, ch. 2006-82, amended s. 120.55, effective December 31,                   approved.
2007, to read:                                                                                 (6) Access to the Florida Administrative Weekly Internet website and its con-
   120.55 Publication.—                                                                     tents, including the e-mail notification service, shall be free for the public.
   (1) The Department of State shall:                                                          (7)
   (a)                                                                                         (a) Each year the Department of State shall furnish the Florida Administrative
   1. Through a continuous revision system, compile and publish the “Florida                Weekly, without charge and upon request, as follows:
Administrative Code.” The Florida Administrative Code shall contain all rules                  1. One subscription to each federal and state court having jurisdiction over the
adopted by each agency, citing the specific rulemaking authority pursuant to which           residents of the state; the Legislative Library; each state university library; the State




                                                                                       46
F.S. 2006                                                 ADMINISTRATIVE PROCEDURE ACT                                                         Ch. 120

Library; each depository library designated pursuant to s. 257.05; and each stand-           (c) The petition shall be filed with the division which
ing committee of the Senate and House of Representatives and each state legisla-
tor.                                                                                      shall, immediately upon filing, forward copies to the
   2. Two subscriptions to each state department.                                         agency whose rule is challenged, the Department of
   3. Three subscriptions to the library of the Supreme Court of Florida, the library     State, and the committee. Within 10 days after receiv-
of each state district court of appeal, the division, the library of the Attorney Gen-
eral, each law school library in Florida, the Secretary of the Senate, and the Clerk      ing the petition, the division director shall, if the petition
of the House of Representatives.
   4. Ten subscriptions to the committee.
                                                                                          complies with the requirements of paragraph (b),
   (b) The Department of State shall furnish one copy of the Florida Administra-          assign an administrative law judge who shall conduct a
tive Weekly, at no cost, to each clerk of the circuit court and each state department,    hearing within 30 days thereafter, unless the petition is
for posting for public inspection.
   (8)                                                                                    withdrawn or a continuance is granted by agreement of
   (a) All fees and moneys collected by the Department of State under this chap-          the parties or for good cause shown. Evidence of good
ter shall be deposited in the Records Management Trust Fund for the purpose of
paying for costs incurred by the department in carrying out this chapter.                 cause includes, but is not limited to, written notice of an
   (b) The unencumbered balance in the Records Management Trust Fund for                  agency’s decision to modify or withdraw the proposed
fees collected pursuant to this chapter may not exceed $300,000 at the beginning
of each fiscal year, and any excess shall be transferred to the General Revenue            rule or a written notice from the chair of the committee
Fund.                                                                                     stating that the committee will consider an objection to
                                                                                          the rule at its next scheduled meeting. The failure of an
   120.551 Internet publication.—                                                         agency to follow the applicable rulemaking procedures
   (1) For purposes of this section, the term:                                            or requirements set forth in this chapter shall be pre-
   (a) “Agency” means the Department of Environ-                                          sumed to be material; however, the agency may rebut
mental Protection and the Board of Trustees of the                                        this presumption by showing that the substantial inter-
Internal Improvement Trust Fund.                                                          ests of the petitioner and the fairness of the proceed-
   (b) “Internet website” means a centralized Internet                                    ings have not been impaired.
website that is established and maintained by the                                            (d) Within 30 days after the hearing, the administra-
Department of Environmental Protection, is provided to                                    tive law judge shall render a decision and state the rea-
the public without charge, and permits the public to:                                     sons therefor in writing. The division shall forthwith
   1. Search notices by type, publication date, pro-                                      transmit copies of the administrative law judge’s deci-
gram area, or rule number;                                                                sion to the agency, the Department of State, and the
   2. Search a permanent database that archives all                                       committee.
notices published on the website; and                                                        (e) Hearings held under this section shall be de
   3. Subscribe to an automated e-mail notification of                                     novo in nature. The standard of proof shall be the pre-
selected notice types.                                                                    ponderance of the evidence. Hearings shall be con-
   (2) Whenever the agency is required to publish                                         ducted in the same manner as provided by ss. 120.569
notices in the Florida Administrative Weekly, the                                         and 120.57, except that the administrative law judge’s
agency shall instead publish the complete notice on the                                   order shall be final agency action. The petitioner and
Internet website. Notices published on the Internet                                       the agency whose rule is challenged shall be adverse
website shall clearly state the date the notice was first                                  parties. Other substantially affected persons may join
published and shall be published only on the same                                         the proceedings as intervenors on appropriate terms
days as the Florida Administrative Weekly is published.                                   which shall not unduly delay the proceedings. Failure to
The Department of State shall publish a statement in                                      proceed under this section shall not constitute failure to
the Florida Administrative Weekly that indicates the                                      exhaust administrative remedies.
specific URL or address for the Internet website. The                                         (2) CHALLENGING PROPOSED RULES; SPE-
agency shall publish all other notices in the manner                                      CIAL PROVISIONS.—
prescribed by law.                                                                           (a) Any substantially affected person may seek an
   (3) This section is repealed effective July 1, 2006,                                   administrative determination of the invalidity of any pro-
unless reviewed and reenacted by the Legislature                                          posed rule by filing a petition seeking such a determina-
before that date.                                                                         tion with the division within 21 days after the date of
  History.—s. 1, ch. 2001-278; s. 1, ch. 2003-145; s. 41, ch. 2004-269; s. 31, ch.
2005-71.                                                                                  publication of the notice required by s. 120.54(3)(a),
                                                                                          within 10 days after the final public hearing is held on
   120.56 Challenges to rules.—                                                           the proposed rule as provided by s. 120.54(3)(c), within
   (1) GENERAL PROCEDURES FOR CHALLENG-                                                   20 days after the preparation of a statement of esti-
ING THE VALIDITY OF A RULE OR A PROPOSED                                                  mated regulatory costs required pursuant to s.
RULE.—                                                                                    120.541, if applicable, or within 20 days after the date
   (a) Any person substantially affected by a rule or a                                   of publication of the notice required by s. 120.54(3)(d).
proposed rule may seek an administrative determina-                                       The petition shall state with particularity the objections
tion of the invalidity of the rule on the ground that the                                 to the proposed rule and the reasons that the proposed
rule is an invalid exercise of delegated legislative                                      rule is an invalid exercise of delegated legislative
authority.                                                                                authority. The petitioner has the burden of going for-
   (b) The petition seeking an administrative determi-                                    ward. The agency then has the burden to prove by a
nation must state with particularity the provisions                                       preponderance of the evidence that the proposed rule
alleged to be invalid with sufficient explanation of the                                   is not an invalid exercise of delegated legislative
facts or grounds for the alleged invalidity and facts suffi-                               authority as to the objections raised. Any person who is
cient to show that the person challenging a rule is sub-                                  substantially affected by a change in the proposed rule
stantially affected by it, or that the person challenging                                 may seek a determination of the validity of such
a proposed rule would be substantially affected by it.                                    change. Any person not substantially affected by the




                                                                                     47
Ch. 120                                 ADMINISTRATIVE PROCEDURE ACT                                           F.S. 2006

proposed rule as initially noticed, but who is substan-           (d) When an administrative law judge enters a final
tially affected by the rule as a result of a change, may       order that all or part of an agency statement violates s.
challenge any provision of the rule and is not limited to      120.54(1)(a), the agency shall immediately discontinue
challenging the change to the proposed rule.                   all reliance upon the statement or any substantially sim-
   (b) The administrative law judge may declare the            ilar statement as a basis for agency action.
proposed rule wholly or partly invalid. Unless the deci-          (e)1. If, prior to a final hearing to determine
sion of the administrative law judge is reversed on            whether all or part of any agency statement violates s.
appeal, the proposed rule or provision of a proposed           120.54(1)(a), an agency publishes, pursuant to s.
rule declared invalid shall not be adopted. However,           120.54(3)(a), proposed rules that address the state-
the agency may proceed with all other steps in the             ment, then for purposes of this section, a presumption
rulemaking process, including the holding of a                 is created that the agency is acting expeditiously and in
factfinding hearing. In the event part of a proposed rule       good faith to adopt rules that address the statement,
is declared invalid, the adopting agency may, in its sole      and the agency shall be permitted to rely upon the
discretion, withdraw the proposed rule in its entirety.        statement or a substantially similar statement as a
The agency whose proposed rule has been declared               basis for agency action if the statement meets the
invalid in whole or part shall give notice of the decision     requirements of s. 120.57(1)(e).
in the first available issue of the Florida Administrative         2. If, prior to the final hearing to determine whether
Weekly.                                                        all or part of an agency statement violates s.
   (c) When any substantially affected person seeks            120.54(1)(a), an agency publishes a notice of rule
determination of the invalidity of a proposed rule pursu-      development which addresses the statement pursuant
ant to this section, the proposed rule is not presumed         to s. 120.54(2), or certifies that such a notice has been
to be valid or invalid.                                        transmitted to the Florida Administrative Weekly for
   (3) CHALLENGING EXISTING RULES; SPECIAL                     publication, then such publication shall constitute good
PROVISIONS.—                                                   cause for the granting of a stay of the proceedings and
   (a) A substantially affected person may seek an             a continuance of the final hearing for 30 days. If the
administrative determination of the invalidity of an           agency publishes proposed rules within this 30-day
existing rule at any time during the existence of the rule.    period or any extension of that period granted by an
The petitioner has a burden of proving by a preponder-         administrative law judge upon showing of good cause,
ance of the evidence that the existing rule is an invalid      then the administrative law judge shall place the case
exercise of delegated legislative authority as to the          in abeyance pending the outcome of rulemaking and
objections raised.                                             any proceedings involving challenges to proposed
   (b) The administrative law judge may declare all or         rules pursuant to subsection (2).
part of a rule invalid. The rule or part thereof declared         3. If, following the commencement of the final
invalid shall become void when the time for filing an           hearing and prior to entry of a final order that all or part
appeal expires. The agency whose rule has been                 of an agency statement violates s. 120.54(1)(a), an
declared invalid in whole or part shall give notice of the     agency publishes, pursuant to s. 120.54(3)(a), pro-
decision in the Florida Administrative Weekly in the first      posed rules that address the statement and proceeds
available issue after the rule has become void.                expeditiously and in good faith to adopt rules that
   (4) CHALLENGING AGENCY STATEMENTS                           address the statement, the agency shall be permitted
DEFINED AS RULES; SPECIAL PROVISIONS.—                         to rely upon the statement or a substantially similar
   (a) Any person substantially affected by an agency          statement as a basis for agency action if the statement
statement may seek an administrative determination             meets the requirements of s. 120.57(1)(e).
that the statement violates s. 120.54(1)(a). The petition         4. If an agency fails to adopt rules that address the
shall include the text of the statement or a description       statement within 180 days after publishing proposed
of the statement and shall state with particularity facts      rules, for purposes of this subsection, a presumption is
sufficient to show that the statement constitutes a rule        created that the agency is not acting expeditiously and
under s. 120.52 and that the agency has not adopted            in good faith to adopt rules. If the agency’s proposed
the statement by the rulemaking procedure provided by          rules are challenged pursuant to subsection (2), the
s. 120.54.                                                     180-day period for adoption of rules is tolled until a final
   (b) The administrative law judge may extend the             order is entered in that proceeding.
hearing date beyond 30 days after assignment of the               5. If the proposed rules addressing the challenged
case for good cause. If a hearing is held and the peti-        statement are determined to be an invalid exercise of
tioner proves the allegations of the petition, the agency      delegated legislative authority as defined in s.
shall have the burden of proving that rulemaking is not        120.52(8)(b)-(f), the agency must immediately discon-
feasible and practicable under s. 120.54(1)(a).                tinue reliance on the statement and any substantially
   (c) The administrative law judge may determine              similar statement until the rules addressing the subject
whether all or part of a statement violates s.                 are properly adopted.
120.54(1)(a). The decision of the administrative law              (f) All proceedings to determine a violation of s.
judge shall constitute a final order. The division shall        120.54(1)(a) shall be brought pursuant to this subsec-
transmit a copy of the final order to the Department of         tion. A proceeding pursuant to this subsection may be
State and the committee. The Department of State               consolidated with a proceeding under any other section
shall publish notice of the final order in the first avail-      of this chapter. Nothing in this paragraph shall be con-
able issue of the Florida Administrative Weekly.               strued to prevent a party whose substantial interests




                                                          48
F.S. 2006                                                ADMINISTRATIVE PROCEDURE ACT                                                     Ch. 120

have been determined by an agency action from bring-                                    after receipt of the petition or request. A request for a
ing a proceeding pursuant to s. 120.57(1)(e).                                           hearing shall be granted or denied within 15 days after
  (5) CHALLENGING EMERGENCY RULES; SPE-                                                 receipt. On the request of any agency, the division shall
CIAL PROVISIONS.—Challenges to the validity of an                                       assign an administrative law judge with due regard to
emergency rule shall be subject to the following time                                   the expertise required for the particular matter. The
schedules in lieu of those established by paragraphs                                    referring agency shall take no further action with
(1)(c) and (d). Within 7 days after receiving the petition,                             respect to a proceeding under s. 120.57(1), except as
the division director shall, if the petition complies with                              a party litigant, as long as the division has jurisdiction
paragraph (1)(b), assign an administrative law judge,                                   over the proceeding under s. 120.57(1). Any party may
who shall conduct a hearing within 14 days, unless the                                  request the disqualification of the administrative law
petition is withdrawn. The administrative law judge                                     judge by filing an affidavit with the division prior to the
shall render a decision within 14 days after the hearing.                               taking of evidence at a hearing, stating the grounds
   History.—s. 1, ch. 74-310; s. 5, ch. 75-191; s. 6, ch. 76-131; s. 1, ch. 77-174;     with particularity.
s. 4, ch. 78-425; s. 759, ch. 95-147; s. 16, ch. 96-159; s. 6, ch. 97-176; s. 5, ch.
99-379; s. 3, ch. 2003-94; s. 5, ch. 2006-82.                                              (b) All parties shall be afforded an opportunity for a
                                                                                        hearing after reasonable notice of not less than 14
   120.565 Declaratory statement by agencies.—                                          days; however, the 14-day notice requirement may be
   (1) Any substantially affected person may seek a                                     waived with the consent of all parties. The notice shall
declaratory statement regarding an agency’s opinion                                     include:
as to the applicability of a statutory provision, or of any                                1. A statement of the time, place, and nature of the
rule or order of the agency, as it applies to the petition-                             hearing.
er’s particular set of circumstances.                                                      2. A statement of the legal authority and jurisdic-
   (2) The petition seeking a declaratory statement                                     tion under which the hearing is to be held.
shall state with particularity the petitioner’s set of cir-                                (c) Unless otherwise provided by law, a petition or
cumstances and shall specify the statutory provision,                                   request for hearing shall include those items required
rule, or order that the petitioner believes may apply to                                by the uniform rules adopted pursuant to s.
the set of circumstances.                                                               120.54(5)(b)4. Upon the receipt of a petition or request
   (3) The agency shall give notice of the filing of each                                for hearing, the agency shall carefully review the peti-
petition in the next available issue of the Florida Admin-                              tion to determine if it contains all of the required infor-
istrative Weekly and transmit copies of each petition to                                mation. A petition shall be dismissed if it is not in sub-
the committee. The agency shall issue a declaratory                                     stantial compliance with these requirements or it has
statement or deny the petition within 90 days after the                                 been untimely filed. Dismissal of a petition shall, at
filing of the petition. The declaratory statement or                                     least once, be without prejudice to petitioner’s filing a
denial of the petition shall be noticed in the next avail-                              timely amended petition curing the defect, unless it
able issue of the Florida Administrative Weekly.                                        conclusively appears from the face of the petition that
Agency disposition of petitions shall be final agency                                    the defect cannot be cured. The agency shall promptly
action.                                                                                 give written notice to all parties of the action taken on
   History.—s. 6, ch. 75-191; s. 7, ch. 76-131; s. 5, ch. 78-425; s. 5, ch. 79-299;
s. 760, ch. 95-147; s. 17, ch. 96-159.                                                  the petition, shall state with particularity its reasons if
                                                                                        the petition is not granted, and shall state the deadline
   120.569 Decisions which affect substantial inter-                                    for filing an amended petition if applicable. This para-
ests.—                                                                                  graph does not eliminate the availability of equitable
   (1) The provisions of this section apply in all pro-                                 tolling as a defense to the untimely filing of a petition.
ceedings in which the substantial interests of a party                                     (d) The agency may refer a petition to the division
are determined by an agency, unless the parties are                                     for the assignment of an administrative law judge only
proceeding under s. 120.573 or s. 120.574. Unless                                       if the petition is in substantial compliance with the
waived by all parties, s. 120.57(1) applies whenever the                                requirements of paragraph (c).
proceeding involves a disputed issue of material fact.                                     (e) All pleadings, motions, or other papers filed in
Unless otherwise agreed, s. 120.57(2) applies in all                                    the proceeding must be signed by the party, the party’s
other cases. Parties shall be notified of any order,                                     attorney, or the party’s qualified representative. The
including a final order. Unless waived, a copy of the                                    signature constitutes a certificate that the person has
order shall be delivered or mailed to each party or the                                 read the pleading, motion, or other paper and that,
party’s attorney of record at the address of record.                                    based upon reasonable inquiry, it is not interposed for
Each notice shall inform the recipient of any administra-                               any improper purposes, such as to harass or to cause
tive hearing or judicial review that is available under this                            unnecessary delay, or for frivolous purpose or need-
section, s. 120.57, or s. 120.68; shall indicate the pro-                               less increase in the cost of litigation. If a pleading,
cedure which must be followed to obtain the hearing or                                  motion, or other paper is signed in violation of these
judicial review; and shall state the time limits which                                  requirements, the presiding officer shall impose upon
apply.                                                                                  the person who signed it, the represented party, or
   (2)(a) Except for any proceeding conducted as pre-                                   both, an appropriate sanction, which may include an
scribed in s. 120.56, a petition or request for a hearing                               order to pay the other party or parties the amount of
under this section shall be filed with the agency. If the                                reasonable expenses incurred because of the filing of
agency requests an administrative law judge from the                                    the pleading, motion, or other paper, including a rea-
division, it shall so notify the division within 15 days                                sonable attorney’s fee.




                                                                                   49
Ch. 120                                 ADMINISTRATIVE PROCEDURE ACT                                                                 F.S. 2006

   (f) The presiding officer has the power to swear             expenses shall be processed and paid in the manner
witnesses and take their testimony under oath, to issue        provided for agency employee travel expense reim-
subpoenas, and to effect discovery on the written              bursement, and in the case of a witness who is not a
request of any party by any means available to the             public employee, payment of such fees and expenses
courts and in the manner provided in the Florida Rules         shall accompany the subpoena.
of Civil Procedure, including the imposition of sanc-             (l) Unless the time period is waived or extended
tions, except contempt. However, no presiding officer           with the consent of all parties, the final order in a pro-
has the authority to issue any subpoena or order direct-       ceeding which affects substantial interests must be in
ing discovery to any member or employee of the Legis-          writing and include findings of fact, if any, and conclu-
lature when the subpoena or order commands the pro-            sions of law separately stated, and it must be rendered
duction of documents or materials or compels testi-            within 90 days:
mony relating to the legislative duties of the member or          1. After the hearing is concluded, if conducted by
employee. Any subpoena or order directing discovery            the agency;
directed to a member or an employee of the Legislature            2. After a recommended order is submitted to the
shall show on its face that the testimony sought does          agency and mailed to all parties, if the hearing is con-
not relate to legislative duties.                              ducted by an administrative law judge; or
   (g) Irrelevant, immaterial, or unduly repetitious evi-         3. After the agency has received the written and
dence shall be excluded, but all other evidence of a           oral material it has authorized to be submitted, if there
type commonly relied upon by reasonably prudent per-           has been no hearing.
sons in the conduct of their affairs shall be admissible,         (m) Findings of fact, if set forth in a manner which is
whether or not such evidence would be admissible in a          no more than mere tracking of the statutory language,
trial in the courts of Florida. Any part of the evidence       must be accompanied by a concise and explicit state-
may be received in written form, and all testimony of          ment of the underlying facts of record which support the
parties and witnesses shall be made under oath.                findings.
   (h) Documentary evidence may be received in the                (n) If an agency head finds that an immediate dan-
form of a copy or excerpt. Upon request, parties shall         ger to the public health, safety, or welfare requires an
be given an opportunity to compare the copy with the           immediate final order, it shall recite with particularity the
original, if available.                                        facts underlying such finding in the final order, which
   (i) When official recognition is requested, the par-         shall be appealable or enjoinable from the date ren-
ties shall be notified and given an opportunity to exam-        dered.
ine and contest the material.                                     (o) On the request of any party, the administrative
   (j) A party shall be permitted to conduct cross-            law judge shall enter an initial scheduling order to facili-
examination when testimony is taken or documents are           tate the just, speedy, and inexpensive determination of
made a part of the record.
                                                               the proceeding. The initial scheduling order shall estab-
   (k)1. Any person subject to a subpoena may,
                                                               lish a discovery period, including a deadline by which
before compliance and on timely petition, request the
                                                               all discovery shall be completed, and the date by which
presiding officer having jurisdiction of the dispute to
                                                               the parties shall identify expert witnesses and their
invalidate the subpoena on the ground that it was not
                                                               opinions. The initial scheduling order also may require
lawfully issued, is unreasonably broad in scope, or
                                                               the parties to meet and file a joint report by a date cer-
requires the production of irrelevant material.
                                                               tain.
   2. A party may seek enforcement of a subpoena,                 History.—s. 18, ch. 96-159; s. 7, ch. 97-176; s. 4, ch. 98-200; s. 4, ch. 2003-94;
order directing discovery, or order imposing sanctions         s. 6, ch. 2006-82.
issued under the authority of this chapter by filing a
petition for enforcement in the circuit court of the judi-        120.57 Additional procedures for particular cases.
cial circuit in which the person failing to comply with the       (1) ADDITIONAL PROCEDURES APPLICABLE
subpoena or order resides. A failure to comply with an         TO HEARINGS INVOLVING DISPUTED ISSUES OF
order of the court shall result in a finding of contempt of     MATERIAL FACT.—
court. However, no person shall be in contempt while a            (a) Except as provided in ss. 120.80 and 120.81,
subpoena is being challenged under subparagraph 1.             an administrative law judge assigned by the division
The court may award to the prevailing party all or part        shall conduct all hearings under this subsection, except
of the costs and attorney’s fees incurred in obtaining         for hearings before agency heads or a member thereof.
the court order whenever the court determines that             If the administrative law judge assigned to a hearing
such an award should be granted under the Florida              becomes unavailable, the division shall assign another
Rules of Civil Procedure.                                      administrative law judge who shall use any existing rec-
   3. Any public employee subpoenaed to appear at              ord and receive any additional evidence or argument,
an agency proceeding shall be entitled to per diem and         if any, which the new administrative law judge finds
travel expenses at the same rate as that provided for          necessary.
state employees under s. 112.061 if travel away from              (b) All parties shall have an opportunity to respond,
such public employee’s headquarters is required. All           to present evidence and argument on all issues
other witnesses appearing pursuant to a subpoena               involved, to conduct cross-examination and submit
shall be paid such fees and mileage for their attend-          rebuttal evidence, to submit proposed findings of facts
ance as is provided in civil actions in circuit courts of      and orders, to file exceptions to the presiding officer’s
this state. In the case of a public employee, such             recommended order, and to be represented by counsel




                                                          50
F.S. 2006                               ADMINISTRATIVE PROCEDURE ACT                                             Ch. 120

or other qualified representative. When appropriate,            unadopted rule does not comport with the provisions of
the general public may be given an opportunity to pres-        this subparagraph, the agency action shall be set aside
ent oral or written communications. If the agency pro-         and the court shall award to the prevailing party the rea-
poses to consider such material, then all parties shall        sonable costs and a reasonable attorney’s fee for the
be given an opportunity to cross-examine or challenge          initial proceeding and the proceeding for review.
or rebut the material.                                            (f) The record in a case governed by this subsec-
    (c) Hearsay evidence may be used for the purpose           tion shall consist only of:
of supplementing or explaining other evidence, but it             1. All notices, pleadings, motions, and intermedi-
shall not be sufficient in itself to support a finding unless    ate rulings.
it would be admissible over objection in civil actions.           2. Evidence admitted.
    (d) Notwithstanding s. 120.569(2)(g), similar fact            3. Those matters officially recognized.
evidence of other violations, wrongs, or acts is admissi-         4. Proffers of proof and objections and rulings
ble when relevant to prove a material fact in issue, such      thereon.
as proof of motive, opportunity, intent, preparation,             5. Proposed findings and exceptions.
plan, knowledge, identity, or absence of mistake or               6. Any decision, opinion, order, or report by the
accident, but it is inadmissible when the evidence is rel-     presiding officer.
evant solely to prove bad character or propensity.                7. All staff memoranda or data submitted to the
When the state in an administrative proceeding intends         presiding officer during the hearing or prior to its dispo-
to offer evidence of other acts or offenses under this         sition, after notice of the submission to all parties,
paragraph, the state shall furnish to the party whose          except communications by advisory staff as permitted
substantial interests are being determined and whose           under s. 120.66(1), if such communications are public
other acts or offenses will be the subject of such evi-        records.
dence, no fewer than 10 days before commencement                  8. All matters placed on the record after an ex
of the proceeding, a written statement of the acts or          parte communication.
offenses it intends to offer, describing them and the evi-        9. The official transcript.
dence the state intends to offer with particularity. Notice       (g) The agency shall accurately and completely
is not required for evidence of acts or offenses which is      preserve all testimony in the proceeding, and, on the
used for impeachment or on rebuttal.                           request of any party, it shall make a full or partial tran-
    (e)1. Any agency action that determines the sub-           script available at no more than actual cost.
stantial interests of a party and that is based on an             (h) Any party to a proceeding in which an adminis-
unadopted rule is subject to de novo review by an              trative law judge of the Division of Administrative Hear-
administrative law judge.                                      ings has final order authority may move for a summary
    2. The agency action shall not be presumed valid           final order when there is no genuine issue as to any
or invalid. The agency must demonstrate that the               material fact. A summary final order shall be rendered
unadopted rule:                                                if the administrative law judge determines from the
    a. Is within the powers, functions, and duties dele-       pleadings, depositions, answers to interrogatories, and
gated by the Legislature or, if the agency is operating        admissions on file, together with affidavits, if any, that
pursuant to authority derived from the State Constitu-         no genuine issue as to any material fact exists and that
tion, is within that authority;                                the moving party is entitled as a matter of law to the
    b. Does not enlarge, modify, or contravene the             entry of a final order. A summary final order shall con-
specific provisions of law implemented;                         sist of findings of fact, if any, conclusions of law, a dis-
    c. Is not vague, establishes adequate standards            position or penalty, if applicable, and any other informa-
for agency decisions, or does not vest unbridled discre-       tion required by law to be contained in the final order.
tion in the agency;                                               (i) When, in any proceeding conducted pursuant to
    d. Is not arbitrary or capricious. A rule is arbitrary     this subsection, a dispute of material fact no longer
if it is not supported by logic or the necessary facts; a      exists, any party may move the administrative law
rule is capricious if it is adopted without thought or rea-    judge to relinquish jurisdiction to the agency. An order
son or is irrational;                                          relinquishing jurisdiction shall be rendered if the admin-
    e. Is not being applied to the substantially affected      istrative law judge determines from the pleadings,
party without due notice; and                                  depositions, answers to interrogatories, and admis-
    f.    Does not impose excessive regulatory costs on        sions on file, together with supporting and opposing
the regulated person, county, or city.                         affidavits, if any, that no genuine issue as to any mate-
    3. The recommended and final orders in any pro-             rial fact exists. If the administrative law judge enters an
ceeding shall be governed by the provisions of para-           order relinquishing jurisdiction, the agency may
graphs (k) and (l), except that the administrative law         promptly conduct a proceeding pursuant to subsection
judge’s determination regarding the unadopted rule             (2), if appropriate, but the parties may not raise any
shall not be rejected by the agency unless the agency          issues of disputed fact that could have been raised
first determines from a review of the complete record,          before the administrative law judge. An order entered
and states with particularity in the order, that such          by an administrative law judge relinquishing jurisdiction
determination is clearly erroneous or does not comply          to the agency based upon a determination that no gen-
with essential requirements of law. In any proceeding          uine dispute of material fact exists, need not contain
for review under s. 120.68, if the court finds that the         findings of fact, conclusions of law, or a recommended
agency’s rejection of the determination regarding the          disposition or penalty.




                                                          51
Ch. 120                                 ADMINISTRATIVE PROCEDURE ACT                                             F.S. 2006

   (j) Findings of fact shall be based upon a prepon-             (a) The agency shall:
derance of the evidence, except in penal or licensure             1. Give reasonable notice to affected persons of
disciplinary proceedings or except as otherwise pro-           the action of the agency, whether proposed or already
vided by statute, and shall be based exclusively on the        taken, or of its decision to refuse action, together with
evidence of record and on matters officially recognized.        a summary of the factual, legal, and policy grounds
   (k) The presiding officer shall complete and submit          therefor.
to the agency and all parties a recommended order                 2. Give parties or their counsel the option, at a
consisting of findings of fact, conclusions of law, and         convenient time and place, to present to the agency or
recommended disposition or penalty, if applicable, and         hearing officer written or oral evidence in opposition to
any other information required by law to be contained          the action of the agency or to its refusal to act, or a writ-
in the final order. All proceedings conducted under this        ten statement challenging the grounds upon which the
subsection shall be de novo. The agency shall allow            agency has chosen to justify its action or inaction.
each party 15 days in which to submit written excep-              3. If the objections of the parties are overruled,
tions to the recommended order. The final order shall           provide a written explanation within 7 days.
include an explicit ruling on each exception, but an              (b) The record shall only consist of:
agency need not rule on an exception that does not                1. The notice and summary of grounds.
clearly identify the disputed portion of the recom-               2. Evidence received.
mended order by page number or paragraph, that does               3. All written statements submitted.
not identify the legal basis for the exception, or that           4. Any decision overruling objections.
does not include appropriate and specific citations to             5. All matters placed on the record after an ex
the record.                                                    parte communication.
   (l) The agency may adopt the recommended order                 6. The official transcript.
as the final order of the agency. The agency in its final           7. Any decision, opinion, order, or report by the
order may reject or modify the conclusions of law over         presiding officer.
which it has substantive jurisdiction and interpretation          (3) ADDITIONAL PROCEDURES APPLICABLE
of administrative rules over which it has substantive          TO PROTESTS TO CONTRACT SOLICITATION OR
jurisdiction. When rejecting or modifying such conclu-         AWARD.—Agencies subject to this chapter shall use
sion of law or interpretation of administrative rule, the      the uniform rules of procedure, which provide proce-
                                                               dures for the resolution of protests arising from the con-
agency must state with particularity its reasons for
                                                               tract solicitation or award process. Such rules shall at
rejecting or modifying such conclusion of law or inter-
                                                               least provide that:
pretation of administrative rule and must make a finding
                                                                  (a) The agency shall provide notice of a decision or
that its substituted conclusion of law or interpretation of    intended decision concerning a solicitation, contract
administrative rule is as or more reasonable than that         award, or exceptional purchase by electronic posting.
which was rejected or modified. Rejection or modifica-           This notice shall contain the following statement: “Fail-
tion of conclusions of law may not form the basis for          ure to file a protest within the time prescribed in section
rejection or modification of findings of fact. The agency        120.57(3), Florida Statutes, or failure to post the bond
may not reject or modify the findings of fact unless the        or other security required by law within the time allowed
agency first determines from a review of the entire rec-        for filing a bond shall constitute a waiver of proceedings
ord, and states with particularity in the order, that the      under chapter 120, Florida Statutes.”
findings of fact were not based upon competent sub-                (b) Any person who is adversely affected by the
stantial evidence or that the proceedings on which the         agency decision or intended decision shall file with the
findings were based did not comply with essential               agency a notice of protest in writing within 72 hours
requirements of law. The agency may accept the rec-            after the posting of the notice of decision or intended
ommended penalty in a recommended order, but may               decision. With respect to a protest of the terms, condi-
not reduce or increase it without a review of the com-         tions, and specifications contained in a solicitation,
plete record and without stating with particularity its        including any provisions governing the methods for
reasons therefor in the order, by citing to the record in      ranking bids, proposals, or replies, awarding contracts,
justifying the action.                                         reserving rights of further negotiation, or modifying or
   (m) If a recommended order is submitted to an               amending any contract, the notice of protest shall be
agency, the agency shall provide a copy of its final            filed in writing within 72 hours after the posting of the
order and any exceptions to the division within 15 days        solicitation. The formal written protest shall be filed
after the order is filed with the agency clerk.                 within 10 days after the date the notice of protest is
   (n) Notwithstanding any law to the contrary, when           filed. Failure to file a notice of protest or failure to file a
statutes or rules impose conflicting time requirements          formal written protest shall constitute a waiver of pro-
for the scheduling of expedited hearings or issuance of        ceedings under this chapter. The formal written protest
recommended or final orders, the director of the divi-          shall state with particularity the facts and law upon
sion shall have the authority to set the proceedings for       which the protest is based. Saturdays, Sundays, and
the orderly operation of this chapter.                         state holidays shall be excluded in the computation of
   (2) ADDITIONAL PROCEDURES APPLICABLE                        the 72-hour time periods provided by this paragraph.
TO HEARINGS NOT INVOLVING DISPUTED ISSUES                         (c) Upon receipt of the formal written protest that
OF MATERIAL FACT.—In any case to which subsec-                 has been timely filed, the agency shall stop the solicita-
tion (1) does not apply:                                       tion or contract award process until the subject of the




                                                          52
F.S. 2006                                ADMINISTRATIVE PROCEDURE ACT                                                                         Ch. 120

protest is resolved by final agency action, unless the               (g) For purposes of this subsection, the definitions
agency head sets forth in writing particular facts and           in s. 287.012 apply.
circumstances which require the continuance of the                  (4) INFORMAL DISPOSITION.—Unless precluded
solicitation or contract award process without delay in          by law, informal disposition may be made of any pro-
order to avoid an immediate and serious danger to the            ceeding by stipulation, agreed settlement, or consent
public health, safety, or welfare.                               order.
    (d)1. The agency shall provide an opportunity to                (5) APPLICABILITY.—This section does not apply
resolve the protest by mutual agreement between the              to agency investigations preliminary to agency action.
parties within 7 days, excluding Saturdays, Sundays,                History.—s. 1, ch. 74-310; s. 7, ch. 75-191; s. 8, ch. 76-131; s. 1, ch. 77-174;
                                                                 s. 5, ch. 77-453; ss. 6, 11, ch. 78-95; s. 6, ch. 78-425; s. 8, ch. 79-7; s. 7, ch. 80-95;
and state holidays, after receipt of a formal written pro-       s. 4, ch. 80-289; s. 57, ch. 81-259; s. 2, ch. 83-78; s. 9, ch. 83-216; s. 2, ch. 84-173;
test.                                                            s. 4, ch. 84-203; ss. 1, 2, ch. 86-108; s. 44, ch. 87-6; ss. 1, 2, ch. 87-54; s. 5, ch.
                                                                 87-385; s. 1, ch. 90-283; s. 4, ch. 91-30; s. 1, ch. 91-191; s. 22, ch. 92-315; s. 7,
    2. If the subject of a protest is not resolved by            ch. 94-218; s. 1420, ch. 95-147; s. 1, ch. 95-328; s. 19, ch. 96-159; s. 1, ch. 96-423;
mutual agreement within 7 days, excluding Saturdays,             s. 8, ch. 97-176; s. 5, ch. 98-200; s. 3, ch. 98-279; s. 47, ch. 99-2; s. 6, ch. 99-379;
                                                                 s. 2, ch. 2002-207; s. 5, ch. 2003-94; s. 7, ch. 2006-82.
Sundays, and state holidays, after receipt of the formal
written protest, and if there is no disputed issue of
                                                                    120.573 Mediation of disputes.—Each announce-
material fact, an informal proceeding shall be con-
ducted pursuant to subsection (2) and applicable                 ment of an agency action that affects substantial inter-
agency rules before a person whose qualifications                 ests shall advise whether mediation of the administra-
have been prescribed by rules of the agency.                     tive dispute for the type of agency action announced is
    3. If the subject of a protest is not resolved by            available and that choosing mediation does not affect
mutual agreement within 7 days, excluding Saturdays,             the right to an administrative hearing. If the agency and
Sundays, and state holidays, after receipt of the formal         all parties to the administrative action agree to media-
written protest, and if there is a disputed issue of mate-       tion, in writing, within 10 days after the time period
rial fact, the agency shall refer the protest to the division    stated in the announcement for election of an adminis-
for proceedings under subsection (1).                            trative remedy under ss. 120.569 and 120.57, the time
    (e) Upon receipt of a formal written protest referred        limitations imposed by ss. 120.569 and 120.57 shall be
pursuant to this subsection, the director of the division        tolled to allow the agency and parties to mediate the
shall expedite the hearing and assign an administrative          administrative dispute. The mediation shall be con-
law judge who shall commence a hearing within 30                 cluded within 60 days of such agreement unless other-
days after the receipt of the formal written protest by the      wise agreed by the parties. The mediation agreement
division and enter a recommended order within 30 days            shall include provisions for mediator selection, the allo-
after the hearing or within 30 days after receipt of the         cation of costs and fees associated with mediation, and
hearing transcript by the administrative law judge,              the mediating parties’ understanding regarding the
whichever is later. Each party shall be allowed 10 days          confidentiality of discussions and documents intro-
in which to submit written exceptions to the recom-              duced during mediation. If mediation results in settle-
mended order. A final order shall be entered by the               ment of the administrative dispute, the agency shall
agency within 30 days of the entry of a recommended              enter a final order incorporating the agreement of the
order. The provisions of this paragraph may be waived            parties. If mediation terminates without settlement of
upon stipulation by all parties.                                 the dispute, the agency shall notify the parties in writing
    (f) In a protest to an invitation to bid or request for      that the administrative hearing processes under ss.
proposals procurement, no submissions made after the             120.569 and 120.57 are resumed.
bid or proposal opening which amend or supplement                  History.—s. 20, ch. 96-159; s. 9, ch. 97-176.
the bid or proposal shall be considered. In a protest to
an invitation to negotiate procurement, no submissions              120.574 Summary hearing.—
made after the agency announces its intent to award a               (1)(a) Within 5 business days following the divi-
contract, reject all replies, or withdraw the solicitation       sion’s receipt of a petition or request for hearing, the
which amend or supplement the reply shall be consid-             division shall issue and serve on all original parties an
ered. Unless otherwise provided by statute, the burden           initial order that assigns the case to a specific adminis-
of proof shall rest with the party protesting the proposed       trative law judge and provides general information
agency action. In a competitive-procurement protest,             regarding practice and procedure before the division.
other than a rejection of all bids, proposals, or replies,       The initial order shall also contain a statement advising
the administrative law judge shall conduct a de novo             the addressees that a summary hearing is available
proceeding to determine whether the agency’s pro-                upon the agreement of all parties under subsection (2)
posed action is contrary to the agency’s governing stat-         and briefly describing the expedited time sequences,
utes, the agency’s rules or policies, or the solicitation        limited discovery, and final order provisions of the sum-
specifications. The standard of proof for such proceed-           mary procedure.
ings shall be whether the proposed agency action was                (b) Within 15 days after service of the initial order,
clearly erroneous, contrary to competition, arbitrary, or        any party may file with the division a motion for sum-
capricious. In any bid-protest proceeding contesting an          mary hearing in accordance with subsection (2). If all
intended agency action to reject all bids, proposals, or         original parties agree, in writing, to the summary pro-
replies, the standard of review by an administrative law         ceeding, the proceeding shall be conducted within 30
judge shall be whether the agency’s intended action is           days of the agreement, in accordance with the provi-
illegal, arbitrary, dishonest, or fraudulent.                    sions of subsection (2).




                                                            53
Ch. 120                                  ADMINISTRATIVE PROCEDURE ACT                                                              F.S. 2006

   (c) Intervenors in the proceeding shall be governed              7. The official transcript of the final hearing.
by the decision of the original parties regarding whether           (e) The agency shall accurately and completely
the case will proceed in accordance with the summary             preserve all testimony in the proceeding and, upon
hearing process and shall not have standing to chal-             request by any party, shall make a full or partial tran-
lenge that decision.                                             script available at no more than actual cost.
   (d) If a motion for summary hearing is not filed                  (f) The decision of the administrative law judge
within 15 days after service of the division’s initial order,    shall be rendered within 30 days after the conclusion of
the matter shall proceed in accordance with ss.                  the final hearing or the filing of the transcript thereof,
120.569 and 120.57.                                              whichever is later. The administrative law judge’s deci-
   (2) In any case to which this subsection is applica-          sion, which shall be final agency action subject to judi-
ble, the following procedures apply:                             cial review under s. 120.68, shall include the following:
   (a) Motions shall be limited to the following:                   1. Findings of fact based exclusively on the evi-
   1. A motion in opposition to the petition.                    dence of record and matters officially recognized.
   2. A motion requesting discovery beyond the infor-               2. Conclusions of law.
mal exchange of documents and witness lists                         3. Imposition of a fine or penalty, if applicable.
described in paragraph (b). Upon a showing of neces-                4. Any other information required by law or rule to
sity, additional discovery may be permitted in the dis-          be contained in a final order.
                                                                   History.—s. 21, ch. 96-159; s. 10, ch. 97-176; s. 11, ch. 2000-158; s. 10, ch.
cretion of the administrative law judge, but only if it can      2000-336.
be completed not later than 5 days prior to the final
hearing.                                                            120.595 Attorney’s fees.—
   3. A motion for continuance of the final hearing                  (1) CHALLENGES TO AGENCY ACTION PURSU-
date.                                                            ANT TO SECTION 120.57(1).—
   4. A motion requesting a prehearing conference,                  (a) The provisions of this subsection are supple-
or the administrative law judge may require a                    mental to, and do not abrogate, other provisions allow-
prehearing conference, for the purpose of identifying:           ing the award of fees or costs in administrative pro-
the legal and factual issues to be considered at the final        ceedings.
hearing; the names and addresses of witnesses who                   (b) The final order in a proceeding pursuant to s.
may be called to testify at the final hearing; documen-           120.57(1) shall award reasonable costs and a reason-
tary evidence that will be offered at the final hearing;          able attorney’s fee to the prevailing party only where
the range of penalties that may be imposed upon final             the nonprevailing adverse party has been determined
hearing; and any other matter that the administrative            by the administrative law judge to have participated in
law judge determines would expedite resolution of the            the proceeding for an improper purpose.
proceeding. The prehearing conference may be held                   (c) In proceedings pursuant to s. 120.57(1), and
by telephone conference call.                                    upon motion, the administrative law judge shall deter-
   5. During or after any preliminary hearing or con-            mine whether any party participated in the proceeding
ference, any party or the administrative law judge may           for an improper purpose as defined by this subsection.
suggest that the case is no longer appropriate for sum-          In making such determination, the administrative law
mary disposition. Following any argument requested by            judge shall consider whether the nonprevailing adverse
the parties, the administrative law judge may enter an           party has participated in two or more other such pro-
order referring the case back to the formal adjudicatory         ceedings involving the same prevailing party and the
process described in s. 120.57(1), in which event the            same project as an adverse party and in which such
parties shall proceed accordingly.                               two or more proceedings the nonprevailing adverse
   (b) Not later than 5 days prior to the final hearing,          party did not establish either the factual or legal merits
the parties shall furnish to each other copies of docu-          of its position, and shall consider whether the factual or
mentary evidence and lists of witnesses who may tes-             legal position asserted in the instant proceeding would
tify at the final hearing.                                        have been cognizable in the previous proceedings. In
   (c) All parties shall have an opportunity to respond,         such event, it shall be rebuttably presumed that the
to present evidence and argument on all issues                   nonprevailing adverse party participated in the pending
involved, to conduct cross-examination and submit                proceeding for an improper purpose.
rebuttal evidence, and to be represented by counsel or              (d) In any proceeding in which the administrative
other qualified representative.                                   law judge determines that a party participated in the
   (d) The record in a case governed by this subsec-             proceeding for an improper purpose, the recom-
tion shall consist only of:                                      mended order shall so designate and shall determine
   1. All notices, pleadings, motions, and intermedi-            the award of costs and attorney’s fees.
ate rulings.                                                        (e) For the purpose of this subsection:
   2. Evidence received.                                            1. “Improper purpose” means participation in a
   3. A statement of matters officially recognized.               proceeding pursuant to s. 120.57(1) primarily to harass
   4. Proffers of proof and objections and rulings               or to cause unnecessary delay or for frivolous purpose
thereon.                                                         or to needlessly increase the cost of litigation, licensing,
   5. Matters placed on the record after an ex parte             or securing the approval of an activity.
communication.                                                      2. “Costs” has the same meaning as the costs
   6. The written decision of the administrative law             allowed in civil actions in this state as provided in chap-
judge presiding at the final hearing.                             ter 57.




                                                            54
F.S. 2006                               ADMINISTRATIVE PROCEDURE ACT                                                                   Ch. 120

   3. “Nonprevailing adverse party” means a party                  (b) Notwithstanding the provisions of chapter 284,
that has failed to have substantially changed the out-          an award shall be paid from the budget entity of the
come of the proposed or final agency action which is             secretary, executive director, or equivalent administra-
the subject of a proceeding. In the event that a pro-           tive officer of the agency, and the agency shall not be
ceeding results in any substantial modification or condi-        entitled to payment of an award or reimbursement for
tion intended to resolve the matters raised in a party’s        payment of an award under any provision of law.
petition, it shall be determined that the party having             (5) APPEALS.—When there is an appeal, the court
raised the issue addressed is not a nonprevailing               in its discretion may award reasonable attorney’s fees
adverse party. The recommended order shall state                and reasonable costs to the prevailing party if the court
whether the change is substantial for purposes of this          finds that the appeal was frivolous, meritless, or an
subsection. In no event shall the term “nonprevailing           abuse of the appellate process, or that the agency
party” or “prevailing party” be deemed to include any           action which precipitated the appeal was a gross abuse
party that has intervened in a previously existing pro-         of the agency’s discretion. Upon review of agency
ceeding to support the position of an agency.                   action that precipitates an appeal, if the court finds that
   (2) CHALLENGES TO PROPOSED AGENCY                            the agency improperly rejected or modified findings of
RULES PURSUANT TO SECTION 120.56(2).—If the                     fact in a recommended order, the court shall award rea-
court or administrative law judge declares a proposed           sonable attorney’s fees and reasonable costs to a pre-
rule or portion of a proposed rule invalid pursuant to s.       vailing appellant for the administrative proceeding and
120.56(2), a judgment or order shall be rendered                the appellate proceeding.
against the agency for reasonable costs and reason-                (6) OTHER SECTIONS NOT AFFECTED.—Other
able attorney’s fees, unless the agency demonstrates            provisions, including ss. 57.105 and 57.111, authorize
that its actions were substantially justified or special cir-    the award of attorney’s fees and costs in administrative
cumstances exist which would make the award unjust.             proceedings. Nothing in this section shall affect the
An agency’s actions are “substantially justified” if there       availability of attorney’s fees and costs as provided in
was a reasonable basis in law and fact at the time the          those sections.
                                                                 History.—s. 25, ch. 96-159; s. 11, ch. 97-176; s. 48, ch. 99-2; s. 6, ch. 2003-94.
actions were taken by the agency. If the agency pre-
vails in the proceedings, the court or administrative law          120.60 Licensing.—
judge shall award reasonable costs and reasonable                  (1) Upon receipt of an application for a license, an
attorney’s fees against a party if the court or administra-     agency shall examine the application and, within 30
tive law judge determines that a party participated in          days after such receipt, notify the applicant of any
the proceedings for an improper purpose as defined by            apparent errors or omissions and request any addi-
paragraph (1)(e). No award of attorney’s fees as pro-           tional information the agency is permitted by law to
vided by this subsection shall exceed $15,000.                  require. An agency shall not deny a license for failure
   (3) CHALLENGES TO EXISTING AGENCY                            to correct an error or omission or to supply additional
RULES PURSUANT TO SECTION 120.56(3).—If the                     information unless the agency timely notified the appli-
court or administrative law judge declares a rule or por-       cant within this 30-day period. An application shall be
tion of a rule invalid pursuant to s. 120.56(3), a judg-        considered complete upon receipt of all requested
ment or order shall be rendered against the agency for          information and correction of any error or omission for
reasonable costs and reasonable attorney’s fees,                which the applicant was timely notified or when the time
unless the agency demonstrates that its actions were            for such notification has expired. Every application for
substantially justified or special circumstances exist           a license shall be approved or denied within 90 days
which would make the award unjust. An agency’s                  after receipt of a completed application unless a shorter
actions are “substantially justified” if there was a rea-        period of time for agency action is provided by law. The
sonable basis in law and fact at the time the actions           90-day time period shall be tolled by the initiation of a
were taken by the agency. If the agency prevails in the         proceeding under ss. 120.569 and 120.57. Any appli-
proceedings, the court or administrative law judge shall        cation for a license that is not approved or denied within
award reasonable costs and reasonable attorney’s                the 90-day or shorter time period, within 15 days after
fees against a party if the court or administrative law         conclusion of a public hearing held on the application,
judge determines that a party participated in the pro-          or within 45 days after a recommended order is submit-
ceedings for an improper purpose as defined by para-             ted to the agency and the parties, whichever action and
graph (1)(e). No award of attorney’s fees as provided           timeframe is latest and applicable, is considered
by this subsection shall exceed $15,000.                        approved unless the recommended order recommends
   (4) CHALLENGES TO AGENCY ACTION PURSU-                       that the agency deny the license. Subject to the satis-
ANT TO SECTION 120.56(4).—                                      factory completion of an examination if required as a
   (a) Upon entry of a final order that all or part of an        prerequisite to licensure, any license that is considered
agency statement violates s. 120.54(1)(a), the adminis-         approved shall be issued and may include such rea-
trative law judge shall award reasonable costs and rea-         sonable conditions as are authorized by law. Any appli-
sonable attorney’s fees to the petitioner, unless the           cant for licensure seeking to claim licensure by default
agency demonstrates that the statement is required by           under this subsection shall notify the agency clerk of
the Federal Government to implement or retain a dele-           the licensing agency, in writing, of the intent to rely
gated or approved program or to meet a condition to             upon the default license provision of this subsection,
receipt of federal funds.                                       and shall not take any action based upon the default




                                                           55
Ch. 120                                 ADMINISTRATIVE PROCEDURE ACT                                                                 F.S. 2006

license until after receipt of such notice by the agency          (c) The agency states in writing at the time of, or
clerk.                                                         prior to, its action the specific facts and reasons for find-
   (2) If an applicant seeks a license for an activity that    ing an immediate danger to the public health, safety, or
is exempt from licensure, the agency shall notify the          welfare and its reasons for concluding that the proce-
applicant and return any tendered application fee within       dure used is fair under the circumstances. The agen-
30 days after receipt of the original application.             cy’s findings of immediate danger, necessity, and pro-
   (3) Each applicant shall be given written notice            cedural fairness are judicially reviewable. Summary
either personally or by mail that the agency intends to        suspension, restriction, or limitation may be ordered,
grant or deny, or has granted or denied, the application       but a suspension or revocation proceeding pursuant to
for license. The notice must state with particularity the      ss. 120.569 and 120.57 shall also be promptly insti-
grounds or basis for the issuance or denial of the             tuted and acted upon.
license, except when issuance is a ministerial act.               (7) No agency shall include as a condition of
Unless waived, a copy of the notice shall be delivered         approval of any license any provision that is based
or mailed to each party’s attorney of record and to each       upon a statement, policy, or guideline of another
person who has requested notice of agency action.              agency unless the statement, policy, or guideline is
Each notice shall inform the recipient of the basis for        within the jurisdiction of the other agency. The other
the agency decision, shall inform the recipient of any
                                                               agency shall identify for the licensing agency the spe-
administrative hearing pursuant to ss. 120.569 and
120.57 or judicial review pursuant to s. 120.68 which          cific legal authority for each such statement, policy, or
may be available, shall indicate the procedure which           guideline. The licensing agency must provide the
must be followed, and shall state the applicable time          licensee with an opportunity to challenge the condition
limits. The issuing agency shall certify the date the          as invalid. If the licensing agency bases a condition of
notice was mailed or delivered, and the notice and the         approval or denial of the license upon the statement,
certification shall be filed with the agency clerk.              policy, or guideline of the other agency, any party to an
   (4) When a licensee has made timely and sufficient           administrative proceeding that arises from the approval
application for the renewal of a license which does not        with conditions or denial of the license may require the
automatically expire by statute, the existing license          other agency to join as a party in determining the valid-
shall not expire until the application for renewal has         ity of the condition.
                                                                 History.—s. 1, ch. 74-310; s. 10, ch. 76-131; s. 1, ch. 77-174; ss. 6, 9, ch.
been finally acted upon by the agency or, in case the           77-453; s. 57, ch. 78-95; s. 8, ch. 78-425; s. 1, ch. 79-142; s. 6, ch. 79-299; s. 2,
application is denied or the terms of the license are lim-     ch. 81-180; s. 6, ch. 84-203; s. 2, ch. 84-265; s. 1, ch. 85-82; s. 14, ch. 90-51; s.
                                                               762, ch. 95-147; s. 26, ch. 96-159; s. 326, ch. 96-410; s. 12, ch. 97-176; s. 7, ch.
ited, until the last day for seeking review of the agency      2003-94.
order or a later date fixed by order of the reviewing
court.                                                            120.62 Agency investigations.—
   (5) No revocation, suspension, annulment, or with-             (1) Every person who responds to a request or
drawal of any license is lawful unless, prior to the entry     demand by any agency or representative thereof for
of a final order, the agency has served, by personal ser-       written data or an oral statement shall be entitled to a
vice or certified mail, an administrative complaint which       transcript or recording of his or her oral statement at no
affords reasonable notice to the licensee of facts or          more than cost.
conduct which warrant the intended action and unless              (2) Any person compelled to appear, or who
the licensee has been given an adequate opportunity to         appears voluntarily, before any presiding officer or
request a proceeding pursuant to ss. 120.569 and               agency in an investigation or in any agency proceeding
120.57. When personal service cannot be made and               has the right, at his or her own expense, to be accom-
the certified mail notice is returned undelivered, the          panied, represented, and advised by counsel or by
agency shall cause a short, plain notice to the licensee       other qualified representatives.
to be published once each week for 4 consecutive                 History.—s. 1, ch. 74-310; s. 763, ch. 95-147; s. 28, ch. 96-159.
weeks in a newspaper published in the county of the
licensee’s last known address as it appears on the rec-           120.63 Exemption from act.—
ords of the agency. If no newspaper is published in that          (1) Upon application of any agency, the Administra-
county, the notice may be published in a newspaper of          tion Commission may exempt any process or proceed-
general circulation in that county. If the address is in       ing governed by this act from one or more requirements
some state other than this state or in a foreign territory     of this act:
or country, the notice may be published in Leon                   (a) When the agency head has certified that the
County.                                                        requirement would conflict with any provision of federal
   (6) If the agency finds that immediate serious dan-          law or rules with which the agency must comply;
ger to the public health, safety, or welfare requires             (b) In order to permit persons in the state to receive
emergency suspension, restriction, or limitation of a          tax benefits or federal funds under any federal law; or
license, the agency may take such action by any proce-            (c) When the commission has found that conform-
dure that is fair under the circumstances if:                  ity with the requirements of the part or parts of this act
   (a) The procedure provides at least the same pro-           for which exemption is sought would be so inconve-
cedural protection as is given by other statutes, the          nient or impractical as to defeat the purpose of the
State Constitution, or the United States Constitution;         agency proceeding involved or the purpose of this act
   (b) The agency takes only that action necessary to          and would not be in the public interest in light of the
protect the public interest under the emergency proce-         nature of the intended action and the enabling act or
dure; and                                                      other laws affecting the agency.




                                                          56
F.S. 2006                                                 ADMINISTRATIVE PROCEDURE ACT                                                       Ch. 120

   (2) The commission may not exempt an agency                                           the House of Representatives object in writing to the
from any requirement of this act pursuant to this section                                effects of the appeal, the appeal may be affirmed by the
until it establishes alternative procedures to achieve                                   affirmative vote of two-thirds of the commission mem-
the agency’s purpose which shall be consistent, insofar                                  bers present.
as possible, with the intent and purpose of the act.                                        (3) Each state agency as defined in chapter 216
   (a) Prior to the granting of any exemption author-                                    and each political subdivision shall make its facilities
ized by this section, the commission shall hold a public                                 available, at a time convenient to the provider, for use
hearing after notice given as provided in s. 120.525.                                    by the division in conducting proceedings pursuant to
Upon the conclusion of the hearing, the commission,                                      this chapter.
through the Executive Office of the Governor, shall                                          (4) The division shall employ administrative law
issue an order specifically granting or denying the                                       judges to conduct hearings required by this chapter or
exemption and specifying any processes or proceed-                                       other law. Any person employed by the division as an
ings exempted and the extent of the exemption; trans-                                    administrative law judge must have been a member of
mit to the committee and to the Department of State a                                    The Florida Bar in good standing for the preceding 5
copy of the petition, a certified copy of the order grant-                                years.
ing or denying the petition, and a copy of any alterna-                                     (5) If the division cannot furnish a division adminis-
tive procedures prescribed; and give notice of the peti-                                 trative law judge promptly in response to an agency
tion and the commission’s response in the Florida                                        request, the director shall designate in writing a quali-
Administrative Weekly.                                                                   fied full-time employee of an agency other than the
   (b) An exemption and any alternative procedure                                        requesting agency to conduct the hearing. The director
prescribed shall terminate 90 days following adjourn-                                    shall have the discretion to designate such a hearing
ment sine die of the then-current or next regular legisla-                               officer who is located in that part of the state where the
tive session after issuance of the exemption order, or                                   parties and witnesses reside.
upon the effective date of any subsequent legislation                                       (6) By rule, the division may establish:
incorporating the exemption or any partial exemption                                        (a) Further qualifications for administrative law
related thereto, whichever is earlier. The exemption                                     judges and shall establish procedures by which candi-
granted by the commission shall be renewable upon                                        dates will be considered for employment or contract.
the same or similar facts not more than once. Such                                          (b) The manner in which public notice will be given
renewal shall terminate as would an original exemp-                                      of vacancies in the staff of administrative law judges.
tion.                                                                                       (c) Procedures for the assignment of administra-
   History.—s. 1, ch. 74-310; s. 11, ch. 76-131; s. 1, ch. 77-53; s. 8, ch. 77-453;      tive law judges.
s. 87, ch. 79-190; s. 7, ch. 79-299; s. 70, ch. 79-400; s. 58, ch. 81-259; s. 29, ch.
96-159.                                                                                     (7) The division is authorized to provide administra-
                                                                                         tive law judges on a contract basis to any governmental
   120.65 Administrative law judges.—                                                    entity to conduct any hearing not covered by this sec-
   (1) The Division of Administrative Hearings within                                    tion.
the Department of Management Services shall be                                              (8) The division shall have the authority to adopt
headed by a director who shall be appointed by the                                       reasonable rules to carry out the provisions of this act.
Administration Commission and confirmed by the Sen-                                          (9) Rules promulgated by the division may autho-
ate. The director, who shall also serve as the chief                                     rize any reasonable sanctions except contempt for vio-
administrative law judge, and any deputy chief adminis-                                  lation of the rules of the division or failure to comply with
trative law judge must possess the same minimum                                          a reasonable order issued by an administrative law
qualifications as the administrative law judges                                           judge, which is not under judicial review.
employed by the division. The Deputy Chief Judge of                                         (10) Not later than February 1 of each year, the divi-
Compensation Claims must possess the minimum                                             sion shall issue a written report to the Administrative
qualifications established in s. 440.45(2) and shall                                      Procedures Committee and the Administration Com-
report to the director. The division shall be a separate                                 mission, including at least the following information:
budget entity, and the director shall be its agency head                                    (a) A summary of the extent and effect of agencies’
for all purposes. The Department of Management Ser-                                      utilization of administrative law judges, court reporters,
vices shall provide administrative support and service                                   and other personnel in proceedings under this chapter.
to the division to the extent requested by the director.                                    (b) Recommendations for change or improvement
The division shall not be subject to control, supervision,                               in the Administrative Procedure Act or any agency’s
or direction by the Department of Management Ser-                                        practice or policy with respect thereto.
vices in any manner, including, but not limited to, per-                                    (c) Recommendations as to those types of cases
sonnel, purchasing, transactions involving real or per-                                  or disputes which should be conducted under the sum-
sonal property, and budgetary matters.                                                   mary hearing process described in s. 120.574.
   (2) The director has the right to appeal actions by                                      (d) A report regarding each agency’s compliance
the Executive Office of the Governor that affect amend-                                   with the filing requirement in s. 120.57(1)(m).
ments to the division’s approved operating budget or                                        (11) The division shall be reimbursed for administra-
any personnel actions pursuant to chapter 216 to the                                     tive law judge services and travel expenses by the fol-
Administration Commission, which shall decide such                                       lowing entities: water management districts, regional
issue by majority vote. The appropriations committees                                    planning councils, school districts, community col-
may advise the Administration Commission on the                                          leges, the Division of Community Colleges, state uni-
issue. If the President of the Senate and the Speaker of                                 versities, the State Board of Education, the Florida




                                                                                    57
Ch. 120                                                     ADMINISTRATIVE PROCEDURE ACT                                                                           F.S. 2006

School for the Deaf and the Blind, and the Commission                                       dum stating the substance of all oral communications
for Independent Education. These entities shall con-                                        received and all oral responses made, and shall also
tract with the division to establish a contract rate for ser-                               advise all parties that such matters have been placed
vices and provisions for reimbursement of administra-                                       on the record. Any party desiring to rebut the ex parte
tive law judge travel expenses and video                                                    communication shall be allowed to do so, if such party
teleconferencing expenses attributable to hearings                                          requests the opportunity for rebuttal within 10 days
conducted on behalf of these entities. The contract rate                                    after notice of such communication. The presiding offi-
must be based on a total-cost-recovery methodology.                                         cer may, if necessary to eliminate the effect of an ex
   History.—s. 1, ch. 74-310; s. 9, ch. 75-191; s. 14, ch. 76-131; s. 9, ch. 78-425;        parte communication, withdraw from the proceeding, in
s. 46, ch. 79-190; s. 1, ch. 86-297; s. 46, ch. 87-6; s. 25, ch. 87-101; s. 54, ch. 88-1;
s. 30, ch. 88-277; s. 51, ch. 92-279; s. 23, ch. 92-315; s. 55, ch. 92-326; s. 764, ch.     which case the entity that appointed the presiding offi-
95-147; s. 31, ch. 96-159; s. 13, ch. 97-176; s. 38, ch. 2000-371; s. 4, ch. 2001-91;       cer shall assign a successor.
s. 1, ch. 2004-247; s. 8, ch. 2006-82.
                                                                                               (3) Any person who makes an ex parte communi-
   120.651 Designation of two administrative law                                            cation prohibited by subsection (1), and any presiding
judges to preside over actions involving department                                         officer, including an agency head or designee, who fails
or boards.—The Division of Administrative Hearings                                          to place in the record any such communication, is in
shall designate at least two administrative law judges                                      violation of this act and may be assessed a civil penalty
who shall specifically preside over actions involving the                                    not to exceed $500 or be subjected to other disciplinary
Department of Health or boards within the Department                                        action.
                                                                                               History.—s. 1, ch. 74-310; s. 10, ch. 75-191; s. 12, ch. 76-131; s. 1, ch. 77-174;
of Health. Each designated administrative law judge                                         s. 10, ch. 78-425; s. 765, ch. 95-147; s. 33, ch. 96-159; s. 14, ch. 97-176.
must be a member of The Florida Bar in good standing
and must have legal, managerial, or clinical experience                                        120.665 Disqualification of agency personnel.—
in issues related to health care or have attained board                                        (1) Notwithstanding the provisions of s. 112.3143,
certification in health care law from The Florida Bar.                                       any individual serving alone or with others as an
  History.—s. 32, ch. 2003-416.                                                             agency head may be disqualified from serving in an
                                                                                            agency proceeding for bias, prejudice, or interest when
   120.655 Withholding funds to pay for administra-                                         any party to the agency proceeding shows just cause
tive law judge services to school boards.—If a district                                     by a suggestion filed within a reasonable period of time
school board fails to make a timely payment for the ser-                                    prior to the agency proceeding. If the disqualified indi-
vices provided by an administrative law judge of the                                        vidual was appointed, the appointing power may
Division of Administrative Hearings as provided annu-                                       appoint a substitute to serve in the matter from which
ally in the General Appropriations Act, the Commis-                                         the individual is disqualified. If the individual is an
sioner of Education shall withhold, from any general                                        elected official, the Governor may appoint a substitute
revenue funds the district is eligible to receive, an                                       to serve in the matter from which the individual is dis-
amount sufficient to pay for the administrative law                                          qualified. However, if a quorum remains after the indi-
judge’s services. The commissioner shall transfer the                                       vidual is disqualified, it shall not be necessary to
amount withheld to the Division of Administrative Hear-                                     appoint a substitute.
ings in payment of such services.                                                              (2) Any agency action taken by a duly appointed
  History.—s. 1, ch. 92-121; s. 32, ch. 96-159.
                                                                                            substitute for a disqualified individual shall be as con-
   120.66 Ex parte communications.—                                                         clusive and effective as if agency action had been
   (1) In any proceeding under ss. 120.569 and                                              taken by the agency as it was constituted prior to any
120.57, no ex parte communication relative to the mer-                                      substitution.
                                                                                               History.—s. 1, ch. 74-310; s. 12, ch. 78-425; s. 2, ch. 83-329; s. 767, ch. 95-147;
its, threat, or offer of reward shall be made to the                                        s. 34, ch. 96-159.
agency head, after the agency head has received a                                              Note.—Former s. 120.71.
recommended order, or to the presiding officer by:
   (a) An agency head or member of the agency or                                               120.68 Judicial review.—
any other public employee or official engaged in prose-                                         (1) A party who is adversely affected by final
cution or advocacy in connection with the matter under                                      agency action is entitled to judicial review. A prelimi-
consideration or a factually related matter.                                                nary, procedural, or intermediate order of the agency or
   (b) A party to the proceeding, the party’s authorized                                    of an administrative law judge of the Division of Admin-
representative or counsel, or any person who, directly                                      istrative Hearings is immediately reviewable if review of
or indirectly, would have a substantial interest in the                                     the final agency decision would not provide an ade-
proposed agency action.                                                                     quate remedy.
                                                                                               (2)(a) Judicial review shall be sought in the appel-
Nothing in this subsection shall apply to advisory staff                                    late district where the agency maintains its headquar-
members who do not testify on behalf of the agency in                                       ters or where a party resides or as otherwise provided
the proceeding or to any rulemaking proceedings under                                       by law. All proceedings shall be instituted by filing a
s. 120.54.                                                                                  notice of appeal or petition for review in accordance
   (2) A presiding officer, including an agency head or                                      with the Florida Rules of Appellate Procedure within 30
designee, who is involved in the decisional process and                                     days after the rendition of the order being appealed. If
who receives an ex parte communication in violation of                                      the appeal is of an order rendered in a proceeding initi-
subsection (1) shall place on the record of the pending                                     ated under s. 120.56, the agency whose rule is being
matter all written communications received, all written                                     challenged shall transmit a copy of the notice of appeal
responses to such communications, and a memoran-                                            to the committee.




                                                                                       58
F.S. 2006                               ADMINISTRATIVE PROCEDURE ACT                                                                    Ch. 120

   (b) When proceedings under this chapter are con-            dence in the record of a hearing conducted pursuant to
solidated for final hearing and the parties to the consoli-     ss. 120.569 and 120.57; however, the court shall not
dated proceeding seek review of final or interlocutory          substitute its judgment for that of the agency as to the
orders in more than one district court of appeal, the          weight of the evidence on any disputed finding of fact;
courts of appeal are authorized to transfer and consoli-          (c) The fairness of the proceedings or the correct-
date the review proceedings. The court may transfer            ness of the action may have been impaired by a mate-
such appellate proceedings on its own motion, upon             rial error in procedure or a failure to follow prescribed
motion of a party to one of the appellate proceedings,         procedure;
or by stipulation of the parties to the appellate proceed-        (d) The agency has erroneously interpreted a pro-
ings. In determining whether to transfer a proceeding,         vision of law and a correct interpretation compels a par-
the court may consider such factors as the interrelation-      ticular action; or
ship of the parties and the proceedings, the desirability         (e) The agency’s exercise of discretion was:
of avoiding inconsistent results in related matters, judi-        1. Outside the range of discretion delegated to the
cial economy, and the burden on the parties of repro-          agency by law;
ducing the record for use in multiple appellate courts.           2. Inconsistent with agency rule;
   (3) The filing of the petition does not itself stay             3. Inconsistent with officially stated agency policy
enforcement of the agency decision, but if the agency          or a prior agency practice, if deviation therefrom is not
decision has the effect of suspending or revoking a            explained by the agency; or
license, supersedeas shall be granted as a matter of              4. Otherwise in violation of a constitutional or stat-
                                                               utory provision;
right upon such conditions as are reasonable, unless
the court, upon petition of the agency, determines that        but the court shall not substitute its judgment for that of
a supersedeas would constitute a probable danger to            the agency on an issue of discretion.
the health, safety, or welfare of the state. The agency           (8) Unless the court finds a ground for setting
also may grant a stay upon appropriate terms, but,             aside, modifying, remanding, or ordering agency action
whether or not the action has the effect of suspending         or ancillary relief under a specified provision of this sec-
or revoking a license, a petition to the agency for a stay     tion, it shall affirm the agency’s action.
is not a prerequisite to a petition to the court for super-       (9) No petition challenging an agency rule as an
sedeas. In any event the court shall specify the condi-        invalid exercise of delegated legislative authority shall
tions, if any, upon which the stay or supersedeas is           be instituted pursuant to this section, except to review
granted.                                                       an order entered pursuant to a proceeding under s.
   (4) Judicial review of any agency action shall be           120.56 or an agency’s findings of immediate danger,
confined to the record transmitted and any additions            necessity, and procedural fairness prerequisite to the
made thereto in accordance with paragraph (7)(a).              adoption of an emergency rule pursuant to s.
   (5) The record for judicial review shall be compiled        120.54(4), unless the sole issue presented by the peti-
in accordance with the Florida Rules of Appellate Pro-         tion is the constitutionality of a rule and there are no dis-
cedure.                                                        puted issues of fact.
   (6)(a) The reviewing court’s decision may be man-              (10) If an administrative law judge’s final order
datory, prohibitory, or declaratory in form, and it shall      depends on any fact found by the administrative law
provide whatever relief is appropriate irrespective of         judge, the court shall not substitute its judgment for that
the original form of the petition. The court may:              of the administrative law judge as to the weight of the
   1. Order agency action required by law; order               evidence on any disputed finding of fact. The court
agency exercise of discretion when required by law; set        shall, however, set aside the final order of the adminis-
aside agency action; remand the case for further               trative law judge or remand the case to the administra-
agency proceedings; or decide the rights, privileges,          tive law judge, if it finds that the final order depends on
obligations, requirements, or procedures at issue              any finding of fact that is not supported by competent
between the parties; and                                       substantial evidence in the record of the proceeding.
                                                                  History.—s. 1, ch. 74-310; s. 13, ch. 76-131; s. 38, ch. 77-104; s. 1, ch. 77-174;
   2. Order such ancillary relief as the court finds            s. 11, ch. 78-425; s. 4, ch. 84-173; s. 7, ch. 87-385; s. 36, ch. 90-302; s. 6, ch.
                                                               91-30; s. 1, ch. 91-191; s. 10, ch. 92-166; s. 35, ch. 96-159; s. 15, ch. 97-176; s.
necessary to redress the effects of official action             8, ch. 2003-94.
wrongfully taken or withheld.
   (b) If the court sets aside agency action or remands           120.69 Enforcement of agency action.—
the case to the agency for further proceedings, it may            (1) Except as otherwise provided by statute:
make such interlocutory order as the court finds neces-            (a) Any agency may seek enforcement of an action
sary to preserve the interests of any party and the pub-       by filing a petition for enforcement, as provided in this
lic pending further proceedings or agency action.              section, in the circuit court where the subject matter of
   (7) The court shall remand a case to the agency for         the enforcement is located.
further proceedings consistent with the court’s decision          (b) A petition for enforcement of any agency action
or set aside agency action, as appropriate, when it finds       may be filed by any substantially interested person who
that:                                                          is a resident of the state. However, no such action may
   (a) There has been no hearing prior to agency               be commenced:
action and the reviewing court finds that the validity of          1. Prior to 60 days after the petitioner has given
the action depends upon disputed facts;                        notice of the violation of the agency action to the head
   (b) The agency’s action depends on any finding of            of the agency concerned, the Attorney General, and
fact that is not supported by competent, substantial evi-      any alleged violator of the agency action.




                                                          59
Ch. 120                                 ADMINISTRATIVE PROCEDURE ACT                                                            F.S. 2006

   2. If an agency has filed, and is diligently prosecut-       and expert witness fees, whenever the court deter-
ing, a petition for enforcement.                               mines that such an award is appropriate.
                                                                History.—s. 1, ch. 74-310; s. 766, ch. 95-147; s. 36, ch. 96-159.
   (c) A petition for enforcement filed by a nongovern-
mental person shall be in the name of the State of Flor-          120.695 Notice of noncompliance.—
ida on the relation of the petitioner, and the doctrines of       (1) It is the policy of the state that the purpose of
res judicata and collateral estoppel shall apply.              regulation is to protect the public by attaining compli-
   (d) In an action brought under paragraph (b), the           ance with the policies established by the Legislature.
agency whose action is sought to be enforced, if not a         Fines and other penalties may be provided in order to
party, may intervene as a matter of right.                     assure compliance; however, the collection of fines and
   (2) A petition for enforcement may request declara-         the imposition of penalties are intended to be second-
tory relief; temporary or permanent equitable relief; any      ary to the primary goal of attaining compliance with an
fine, forfeiture, penalty, or other remedy provided by          agency’s rules. It is the intent of the Legislature that an
statute; any combination of the foregoing; or, in the          agency charged with enforcing rules shall issue a
absence of any other specific statutory authority, a fine        notice of noncompliance as its first response to a minor
not to exceed $1,000.                                          violation of a rule in any instance in which it is reason-
   (3) After the court has rendered judgment on a peti-        able to assume that the violator was unaware of the
tion for enforcement, no other petition shall be filed or       rule or unclear as to how to comply with it.
adjudicated against the same agency action, on the                (2)(a) Each agency shall issue a notice of noncom-
basis of the same transaction or occurrence, unless            pliance as a first response to a minor violation of a rule.
expressly authorized on remand. The doctrines of res           A “notice of noncompliance” is a notification by the
judicata and collateral estoppel shall apply, and the          agency charged with enforcing the rule issued to the
court shall make such orders as are necessary to avoid         person or business subject to the rule. A notice of non-
multiplicity of actions.                                       compliance may not be accompanied with a fine or
   (4) In all enforcement proceedings:                         other disciplinary penalty. It must identify the specific
   (a) If enforcement depends on any facts other than          rule that is being violated, provide information on how
                                                               to comply with the rule, and specify a reasonable time
those appearing in the record, the court may ascertain
                                                               for the violator to comply with the rule. A rule is agency
such facts under procedures set forth in s.
                                                               action that regulates a business, occupation, or profes-
120.68(7)(a).                                                  sion, or regulates a person operating a business, occu-
   (b) If one or more petitions for enforcement and a          pation, or profession, and that, if not complied with,
petition for review involving the same agency action are       may result in a disciplinary penalty.
pending at the same time, the court considering the               (b) Each agency shall review all of its rules and
review petition may order all such actions transferred to      designate those for which a violation would be a minor
and consolidated in one court. Each party shall be             violation and for which a notice of noncompliance must
under an affirmative duty to notify the court when it           be the first enforcement action taken against a person
becomes aware of multiple proceedings.                         or business subject to regulation. A violation of a rule is
   (c) Should any party willfully fail to comply with an       a minor violation if it does not result in economic or
order of the court, the court shall punish that party in       physical harm to a person or adversely affect the public
accordance with the law applicable to contempt com-            health, safety, or welfare or create a significant threat of
mitted by a person in the trial of any other action.           such harm. If an agency under the direction of a cabinet
   (5) In any enforcement proceeding the respondent            officer mails to each licensee a notice of the designated
may assert as a defense the invalidity of any relevant         rules at the time of licensure and at least annually
statute, the inapplicability of the administrative determi-    thereafter, the provisions of paragraph (a) may be exer-
nation to respondent, compliance by the respondent,            cised at the discretion of the agency. Such notice shall
the inappropriateness of the remedy sought by the              include a subject-matter index of the rules and informa-
agency, or any combination of the foregoing. In addi-          tion on how the rules may be obtained.
tion, if the petition for enforcement is filed during the          (c) The agency’s review and designation must be
time within which the respondent could petition for judi-      completed by December 1, 1995; each agency under
cial review of the agency action, the respondent may           the direction of the Governor shall make a report to the
assert the invalidity of the agency action.                    Governor, and each agency under the joint direction of
   (6) Notwithstanding any other provision of this sec-        the Governor and Cabinet shall report to the Governor
                                                               and Cabinet by January 1, 1996, on which of its rules
tion, upon receipt of evidence that an alleged violation
                                                               have been designated as rules the violation of which
of an agency’s action presents an imminent and sub-
                                                               would be a minor violation.
stantial threat to the public health, safety, or welfare,
                                                                  (d) The Governor or the Governor and Cabinet, as
the agency may bring suit for immediate temporary              appropriate pursuant to paragraph (c), may evaluate
relief in an appropriate circuit court, and the granting of    the review and designation effects of each agency and
such temporary relief shall not have res judicata or col-      may apply a different designation than that applied by
lateral estoppel effect as to further relief sought under      the agency.
a petition for enforcement relating to the same viola-            (e) This section does not apply to the regulation of
tion.                                                          law enforcement personnel or teachers.
   (7) In any final order on a petition for enforcement            (f) Designation pursuant to this section is not sub-
the court may award to the prevailing party all or part of     ject to challenge under this chapter.
the costs of litigation and reasonable attorney’s fees          History.—s. 1, ch. 95-402.




                                                          60
F.S. 2006                                               ADMINISTRATIVE PROCEDURE ACT                                                    Ch. 120

  120.72 Legislative intent; references to chapter                                        (b) Workers’ compensation.—Notwithstanding s.
120 or portions thereof.—Unless expressly provided                                     120.52(1), a judge of compensation claims, in adjudi-
otherwise, a reference in any section of the Florida                                   cating matters under chapter 440, is not an agency or
Statutes to chapter 120 or to any section or sections or                               part of an agency for purposes of this chapter.
portion of a section of chapter 120 includes, and shall                                   (2) DEPARTMENT OF AGRICULTURE AND
be understood as including, all subsequent amend-                                      CONSUMER SERVICES.—
ments to chapter 120 or to the referenced section or                                      (a) Marketing orders under chapter 527, chapter
sections or portions of a section.                                                     573, or chapter 601 are not rules.
   History.—s. 3, ch. 74-310; s. 1, ch. 76-207; s. 1, ch. 77-174; s. 57, ch. 78-95;       (b) Notwithstanding s. 120.57(1)(a), hearings held
s. 13, ch. 78-425; s. 38, ch. 96-159.
                                                                                       by the Department of Agriculture and Consumer Ser-
                                                                                       vices pursuant to chapter 601 need not be conducted
  120.73 Circuit court proceedings; declaratory
                                                                                       by an administrative law judge assigned by the division.
judgments.—Nothing in this chapter shall be construed
                                                                                          (3) OFFICE OF FINANCIAL REGULATION.—
to repeal any provision of the Florida Statutes which                                     (a) Notwithstanding s. 120.60(1), in proceedings
grants the right to a proceeding in the circuit court in lieu                          for the issuance, denial, renewal, or amendment of a
of an administrative hearing or to divest the circuit                                  license or approval of a merger pursuant to title
courts of jurisdiction to render declaratory judgments                                 XXXVIII:
under the provisions of chapter 86.                                                       1.a. The Office of Financial Regulation of the Finan-
  History.—s. 11, ch. 75-191; s. 14, ch. 78-425.
                                                                                       cial Services Commission shall have published in the
   120.74 Agency review, revision, and report.—                                        Florida Administrative Weekly notice of the application
   (1) Each agency shall review and revise its rules as                                within 21 days after receipt.
often as necessary to ensure that its rules are correct                                   b. Within 21 days after publication of notice, any
and comply with statutory requirements. Additionally,                                  person may request a hearing. Failure to request a
each agency shall perform a formal review of its rules                                 hearing within 21 days after notice constitutes a waiver
                                                                                       of any right to a hearing. The Office of Financial Regu-
every 2 years. In the review, each agency must:
                                                                                       lation or an applicant may request a hearing at any time
   (a) Identify and correct deficiencies in its rules;
                                                                                       prior to the issuance of a final order. Hearings shall be
   (b) Clarify and simplify its rules;                                                 conducted pursuant to ss. 120.569 and 120.57, except
   (c) Delete obsolete or unnecessary rules;                                           that the Financial Services Commission shall by rule
   (d) Delete rules that are redundant of statutes;                                    provide for participation by the general public.
   (e) Seek to improve efficiency, reduce paperwork,                                       2. Should a hearing be requested as provided by
or decrease costs to government and the private sec-                                   sub-subparagraph 1.b., the applicant or licensee shall
tor; and                                                                               publish at its own cost a notice of the hearing in a news-
   (f) Contact agencies that have concurrent or over-                                  paper of general circulation in the area affected by the
lapping jurisdiction to determine whether their rules can                              application. The Financial Services Commission may
be coordinated to promote efficiency, reduce                                            by rule specify the format and size of the notice.
paperwork, or decrease costs to government and the                                        3. Notwithstanding s. 120.60(1), and except as
private sector.                                                                        provided in subparagraph 4., every application for
   (2) Beginning October 1, 1997, and by October 1 of                                  license for a new bank, new trust company, new credit
every other year thereafter, the head of each agency                                   union, or new savings and loan association shall be
shall file a report with the President of the Senate, the                               approved or denied within 180 days after receipt of the
Speaker of the House of Representatives, and the                                       original application or receipt of the timely requested
committee, with a copy to each appropriate standing                                    additional information or correction of errors or omis-
committee of the Legislature, which certifies that the                                  sions. Any application for such a license or for acquisi-
agency has complied with the requirements of this sub-                                 tion of such control which is not approved or denied
section. The report must specify any changes made to                                   within the 180-day period or within 30 days after con-
its rules as a result of the review and, when appropri-                                clusion of a public hearing on the application, which-
ate, recommend statutory changes that will promote                                     ever is later, shall be deemed approved subject to the
efficiency, reduce paperwork, or decrease costs to gov-                                 satisfactory completion of conditions required by stat-
ernment and the private sector. The report must identify                               ute as a prerequisite to license and approval of insur-
the types of cases or disputes in which the agency is                                  ance of accounts for a new bank, a new savings and
involved which should be conducted under the sum-                                      loan association, or a new credit union by the appropri-
mary hearing process described in s. 120.574.                                          ate insurer.
  History.—s. 46, ch. 96-399; s. 16, ch. 97-176; s. 9, ch. 2006-82.                       4. In the case of every application for license to
                                                                                       establish a new bank, trust company, or capital stock
  120.80 Exceptions and special requirements;                                          savings association in which a foreign national pro-
agencies.—                                                                             poses to own or control 10 percent or more of any class
  (1) DIVISION OF ADMINISTRATIVE HEARINGS.                                             of voting securities, and in the case of every application
  (a) Division as a party.—Notwithstanding s.                                          by a foreign national for approval to acquire control of
120.57(1)(a), a hearing in which the division is a party                               a bank, trust company, or capital stock savings associ-
may not be conducted by an administrative law judge                                    ation, the Office of Financial Regulation shall request
assigned by the division. An attorney assigned by the                                  that a public hearing be conducted pursuant to ss.
Administration Commission shall be the hearing officer.                                 120.569 and 120.57. Notice of such hearing shall be




                                                                                  61
Ch. 120                                 ADMINISTRATIVE PROCEDURE ACT                                            F.S. 2006

published by the applicant as provided in subparagraph             (6) DEPARTMENT OF LAW ENFORCEMENT.—
2. The failure of any such foreign national to appear           Law enforcement policies and procedures of the
personally at the hearing shall be grounds for denial of        Department of Law Enforcement which relate to the fol-
the application. Notwithstanding the provisions of s.           lowing are not rules as defined by this chapter:
120.60(1) and subparagraph 3., every application                   (a) The collection, management, and dissemina-
involving a foreign national shall be approved or denied        tion of active criminal intelligence information and
within 1 year after receipt of the original application or      active criminal investigative information; management
any timely requested additional information or the cor-         of criminal investigations; and management of under-
rection of any errors or omissions, or within 30 days           cover investigations and the selection, assignment,
after the conclusion of the public hearing on the appli-        and fictitious identity of undercover personnel.
cation, whichever is later.                                        (b) The recruitment, management, identity, and
   (b) In any application for a license or merger pursu-        remuneration of confidential informants or sources.
ant to title XXXVIII which is referred by the agency to            (c) Surveillance techniques, the selection of sur-
the division for hearing, the administrative law judge          veillance personnel, and electronic surveillance,
shall complete and submit to the agency and to all par-         including court-ordered and consensual interceptions
ties a written report consisting of findings of fact and rul-    of communication conducted pursuant to chapter 934.
ings on evidentiary matters. The agency shall allow                (d) The safety and release of hostages.
each party at least 10 days in which to submit written             (e) The provision of security and protection to pub-
exceptions to the report.                                       lic figures.
   (4) DEPARTMENT OF BUSINESS AND PROFES-                          (f) The protection of witnesses.
SIONAL REGULATION.—                                                (7) DEPARTMENT OF CHILDREN AND FAMILY
   (a) Business regulation.—The Division of Pari-               SERVICES.—Notwithstanding s. 120.57(1)(a), hear-
mutuel Wagering is exempt from the hearing and notice           ings conducted within the Department of Children and
requirements of ss. 120.569 and 120.57(1)(a), but only          Family Services in the execution of those social and
for stewards, judges, and boards of judges when the             economic programs administered by the former Divi-
hearing is to be held for the purpose of the imposition         sion of Family Services of the former Department of
of fines or suspensions as provided by rules of the Divi-        Health and Rehabilitative Services prior to the reorga-
sion of Pari-mutuel Wagering, but not for revocations,          nization effected by chapter 75-48, Laws of Florida,
and only upon violations of subparagraphs 1.-6. The
                                                                need not be conducted by an administrative law judge
Division of Pari-mutuel Wagering shall adopt rules
                                                                assigned by the division.
establishing alternative procedures, including a hear-
                                                                   (8) DEPARTMENT OF HIGHWAY SAFETY AND
ing upon reasonable notice, for the following violations:
   1. Horse riding, harness riding, greyhound inter-            MOTOR VEHICLES.—
ference, and jai alai game actions in violation of chapter         (a) Drivers’ licenses.—
550.                                                               1. Notwithstanding s. 120.57(1)(a), hearings
   2. Application and usage of drugs and medication             regarding drivers’ licensing pursuant to chapter 322
to horses, greyhounds, and jai alai players in violation        need not be conducted by an administrative law judge
of chapter 550.                                                 assigned by the division.
   3. Maintaining or possessing any device which                   2. Notwithstanding s. 120.60(5), cancellation, sus-
could be used for the injection or other infusion of a pro-     pension, or revocation of a driver’s license shall be by
hibited drug to horses, greyhounds, and jai alai players        personal delivery to the licensee or by first-class mail
in violation of chapter 550.                                    as provided in s. 322.251.
   4. Suspensions under reciprocity agreements                     (b) Wrecker operators.—Notwithstanding s.
between the Division of Pari-mutuel Wagering and reg-           120.57(1)(a), hearings held by the Division of the Flor-
ulatory agencies of other states.                               ida Highway Patrol of the Department of Highway
   5. Assault or other crimes of violence on premises           Safety and Motor Vehicles to deny, suspend, or
licensed for pari-mutuel wagering.                              remove a wrecker operator from participating in the
   6. Prearranging the outcome of any race or game.             wrecker rotation system established by s. 321.051
   (b) Professional regulation.—Notwithstanding s.              need not be conducted by an administrative law judge
120.57(1)(a), formal hearings may not be conducted by           assigned by the division. These hearings shall be held
the Secretary of Business and Professional Regulation           by a hearing officer appointed by the director of the
or a board or member of a board within the Department           Division of the Florida Highway Patrol.
of Business and Professional Regulation for matters                (9) OFFICE OF INSURANCE REGULATION.—
relating to the regulation of professions, as defined by         Notwithstanding s. 120.60(1), every application for a
chapter 455.                                                    certificate of authority as required by s. 624.401 shall
   (5) FLORIDA LAND AND WATER ADJUDICA-                         be approved or denied within 180 days after receipt of
TORY COMMISSION.—Notwithstanding the provi-                     the original application. Any application for a certificate
sions of s. 120.57(1)(a), when the Florida Land and             of authority which is not approved or denied within the
Water Adjudicatory Commission receives a notice of              180-day period, or within 30 days after conclusion of a
appeal pursuant to s. 380.07, the commission shall              public hearing held on the application, shall be deemed
notify the division within 60 days after receipt of the         approved, subject to the satisfactory completion of con-
notice of appeal if the commission elects to request the        ditions required by statute as a prerequisite to licen-
assignment of an administrative law judge.                      sure.




                                                           62
F.S. 2006                              ADMINISTRATIVE PROCEDURE ACT                                                Ch. 120

   (10) AGENCY FOR WORKFORCE INNOVATION.                         (14) DEPARTMENT OF REVENUE.—
   (a) Notwithstanding s. 120.54, the rulemaking pro-            (a) Assessments.—An assessment of tax, penalty,
visions of this chapter do not apply to unemployment          or interest by the Department of Revenue is not a final
appeals referees.                                             order as defined by this chapter. Assessments by the
   (b) Notwithstanding s. 120.54(5), the uniform rules        Department of Revenue shall be deemed final as pro-
of procedure do not apply to appeal proceedings con-          vided in the statutes and rules governing the assess-
ducted under chapter 443 by the Unemployment                  ment and collection of taxes.
Appeals Commission, special deputies, or unemploy-               (b) Taxpayer contest proceedings.—
ment appeals referees.                                           1. In any administrative proceeding brought pur-
   (c) Notwithstanding s. 120.57(1)(a), hearings              suant to this chapter as authorized by s. 72.011(1), the
under chapter 443 may not be conducted by an admin-           taxpayer shall be designated the “petitioner” and the
istrative law judge assigned by the division, but instead     Department of Revenue shall be designated the “re-
shall be conducted by the Unemployment Appeals                spondent,” except that for actions contesting an
Commission in unemployment compensation appeals,              assessment or denial of refund under chapter 207, the
                                                              Department of Highway Safety and Motor Vehicles
unemployment appeals referees, and the Agency for
                                                              shall be designated the “respondent,” and for actions
Workforce Innovation or its special deputies under s.
                                                              contesting an assessment or denial of refund under
443.141.                                                      chapters 210, 550, 561, 562, 563, 564, and 565, the
   (11) NATIONAL GUARD.—Notwithstanding s.                    Department of Business and Professional Regulation
120.52(15), the enlistment, organization, administra-         shall be designated the “respondent.”
tion, equipment, maintenance, training, and discipline           2. In any such administrative proceeding, the
of the militia, National Guard, organized militia, and        applicable department’s burden of proof, except as oth-
unorganized militia, as provided by s. 2, Art. X of the       erwise specifically provided by general law, shall be
State Constitution, are not rules as defined by this           limited to a showing that an assessment has been
chapter.                                                      made against the taxpayer and the factual and legal
   (12) PUBLIC EMPLOYEES RELATIONS COMMIS-                    grounds upon which the applicable department made
SION.—                                                        the assessment.
   (a) Notwithstanding s. 120.57(1)(a), hearings                 3.a. Prior to filing a petition under this chapter, the
within the jurisdiction of the Public Employees Rela-         taxpayer shall pay to the applicable department the
tions Commission need not be conducted by an admin-           amount of taxes, penalties, and accrued interest
istrative law judge assigned by the division.                 assessed by that department which are not being con-
   (b) Section 120.60 does not apply to certification of       tested by the taxpayer. Failure to pay the uncontested
employee organizations pursuant to s. 447.307.                amount shall result in the dismissal of the action and
   (13) FLORIDA PUBLIC SERVICE COMMISSION.—                   imposition of an additional penalty of 25 percent of the
   (a) Agency statements that relate to cost-recovery         amount taxed.
clauses, factors, or mechanisms implemented pursu-               b. The requirements of s. 72.011(2) and (3)(a) are
ant to chapter 366, relating to public utilities, are         jurisdictional for any action under this chapter to con-
exempt from the provisions of s. 120.54(1)(a).                test an assessment or denial of refund by the Depart-
   (b) Notwithstanding ss. 120.569 and 120.57, a              ment of Revenue, the Department of Highway Safety
hearing on an objection to proposed action of the Flor-       and Motor Vehicles, or the Department of Business and
ida Public Service Commission may only address the            Professional Regulation.
issues in dispute. Issues in the proposed action which           4. Except as provided in s. 220.719, further collec-
are not in dispute are deemed stipulated.                     tion and enforcement of the contested amount of an
   (c) The Florida Public Service Commission is               assessment for nonpayment or underpayment of any
                                                              tax, interest, or penalty shall be stayed beginning on
exempt from the time limitations in s. 120.60(1) when
                                                              the date a petition is filed. Upon entry of a final order,
issuing a license.
                                                              an agency may resume collection and enforcement
   (d) Notwithstanding the provisions of this chapter,        action.
in implementing the Telecommunications Act of 1996,              5. The prevailing party, in a proceeding under ss.
Pub. L. No. 104-104, the Public Service Commission is         120.569 and 120.57 authorized by s. 72.011(1), may
authorized to employ procedures consistent with that          recover all legal costs incurred in such proceeding,
act.                                                          including reasonable attorney’s fees, if the losing party
   (e) Notwithstanding the provisions of this chapter,        fails to raise a justiciable issue of law or fact in its peti-
s. 350.128, or s. 364.381, appellate jurisdiction for Pub-    tion or response.
lic Service Commission decisions that implement the              6. Upon review pursuant to s. 120.68 of final
Telecommunications Act of 1996, Pub. L. No. 104-104,          agency action concerning an assessment of tax, pen-
shall be consistent with the provisions of that act.          alty, or interest with respect to a tax imposed under
   (f) Notwithstanding any provision of this chapter,         chapter 212, or the denial of a refund of any tax
all public utilities and companies regulated by the Pub-      imposed under chapter 212, if the court finds that the
lic Service Commission shall be entitled to proceed           Department of Revenue improperly rejected or modi-
under the interim rate provisions of chapter 364 or the       fied a conclusion of law, the court may award reason-
procedures for interim rates contained in chapter 74-         able attorney’s fees and reasonable costs of the appeal
195, Laws of Florida, or as otherwise provided by law.        to the prevailing appellant.




                                                         63
Ch. 120                               ADMINISTRATIVE PROCEDURE ACT                                                                 F.S. 2006

   (c) Proceedings to establish paternity or paternity          (17) FLORIDA BUILDING COMMISSION.—
and child support; orders to appear for genetic testing;        (a) Notwithstanding the provisions of s. 120.542,
proceedings for administrative support orders.—In pro-       the Florida Building Commission may not accept a peti-
ceedings to establish paternity or paternity and child       tion for waiver or variance and may not grant any
support pursuant to s. 409.256 and proceedings for the       waiver or variance from the requirements of the Florida
establishment of administrative support orders pursu-        Building Code.
ant to s. 409.2563, final orders in cases referred by the        (b) The Florida Building Commission shall adopt
Department of Revenue to the Division of Administra-         within the Florida Building Code criteria and proce-
tive Hearings shall be entered by the division’s adminis-    dures for alternative means of compliance with the
trative law judge and transmitted to the Department of       code or local amendments thereto, for enforcement by
Revenue for filing and rendering. The Department of           local governments, local enforcement districts, or other
Revenue has the right to seek judicial review under s.       entities authorized by law to enforce the Florida Build-
120.68 of a final order entered by an administrative law      ing Code. Appeals from the denial of the use of alterna-
judge. The Department of Revenue or the person               tive means shall be heard by the local board, if one
ordered to appear for genetic testing may seek immedi-       exists, and may be appealed to the Florida Building
ate judicial review under s. 120.68 of an order issued by    Commission.
an administrative law judge pursuant to s.                      (c) Notwithstanding ss. 120.565, 120.569, and
409.256(5)(b). Final orders that adjudicate paternity or     120.57, the Florida Building Commission and hearing
paternity and child support pursuant to s. 409.256 and       officer panels appointed by the commission in accord-
administrative support orders rendered pursuant to s.        ance with s. 553.775(3)(c)1. may conduct proceedings
409.2563 may be enforced pursuant to s. 120.69 or,           to review decisions of local building code officials in
alternatively, by any method prescribed by law for the       accordance with s. 553.775(3)(c).
enforcement of judicial support orders, except con-             History.—s. 41, ch. 96-159; s. 13, ch. 98-166; s. 10, ch. 99-8; s. 4, ch. 99-397;
                                                             s. 1, ch. 2000-141; s. 17, ch. 2000-151; s. 2, ch. 2000-160; s. 11, ch. 2000-304; s.
tempt. Hearings held by the Division of Administrative       4, ch. 2000-305; ss. 2, 11, ch. 2000-312; s. 4, ch. 2000-355; s. 3, ch. 2000-367; s.
Hearings pursuant to ss. 409.256, 409.2563, and              18, ch. 2001-158; s. 2, ch. 2001-279; s. 8, ch. 2002-173; s. 1, ch. 2002-239; s. 3,
                                                             ch. 2003-36; s. 139, ch. 2003-261; s. 1, ch. 2004-52; s. 7, ch. 2004-334; ss. 12, 13,
409.25635 shall be held in the judicial circuit where the    ch. 2005-39; s. 1, ch. 2005-96; s. 13, ch. 2005-147; s. 1, ch. 2005-209; s. 5, ch.
person receiving services under Title IV-D resides or, if    2006-45.
the person receiving services under Title IV-D does not
reside in this state, in the judicial circuit where the         120.81 Exceptions and special requirements; gen-
respondent resides. If the department and the respon-        eral areas.—
dent agree, the hearing may be held in another loca-            (1) EDUCATIONAL UNITS.—
tion. If ordered by the administrative law judge, the           (a) Notwithstanding s. 120.536(1) and the flush left
hearing may be conducted telephonically or by                provisions of s. 120.52(8), district school boards may
videoconference.                                             adopt rules to implement their general powers under s.
   (15) DEPARTMENT OF HEALTH.—Notwithstand-                  1001.41.
ing s. 120.57(1)(a), formal hearings may not be con-            (b) The preparation or modification of curricula by
ducted by the Secretary of Health, the Secretary of          an educational unit is not a rule as defined by this chap-
Health Care Administration, or a board or member of a        ter.
board within the Department of Health or the Agency             (c) Notwithstanding s. 120.52(15), any tests, test
for Health Care Administration for matters relating to       scoring criteria, or testing procedures relating to stu-
the regulation of professions, as defined by chapter          dent assessment which are developed or administered
456. Notwithstanding s. 120.57(1)(a), hearings con-          by the Department of Education pursuant to s. 1003.43,
ducted within the Department of Health in execution of       s. 1003.438, s. 1008.22, or s. 1008.25, or any other
the Special Supplemental Nutrition Program for               statewide educational tests required by law, are not
Women, Infants, and Children; Child Care Food Pro-           rules.
gram; Children’s Medical Services Program; the Brain            (d) Notwithstanding any other provision of this
and Spinal Cord Injury Program; and the exemption            chapter, educational units shall not be required to
from disqualification reviews for certified nurse assis-       include the full text of the rule or rule amendment in
tants program need not be conducted by an administra-        notices relating to rules and need not publish these or
tive law judge assigned by the division. The Depart-         other notices in the Florida Administrative Weekly, but
ment of Health may contract with the Department of           notice shall be made:
Children and Family Services for a hearing officer in            1. By publication in a newspaper of general circu-
these matters.                                               lation in the affected area;
   (16) DEPARTMENT OF ENVIRONMENTAL PRO-                        2. By mail to all persons who have made requests
TECTION.—Notwithstanding the provisions of s.                of the educational unit for advance notice of its pro-
120.54(1)(d), the Department of Environmental Protec-        ceedings and to organizations representing persons
tion, in undertaking rulemaking to establish best avail-     affected by the proposed rule; and
able control technology, lowest achievable emissions            3. By posting in appropriate places so that those
rate, or case-by-case maximum available control tech-        particular classes of persons to whom the intended
nology for purposes of s. 403.08725, shall not adopt the     action is directed may be duly notified.
lowest regulatory cost alternative if such adoption             (e) Educational units, other than the state universi-
would prevent the agency from implementing federal           ties and the Florida School for the Deaf and the Blind,
requirements.                                                shall not be required to make filings with the committee




                                                        64
F.S. 2006                              ADMINISTRATIVE PROCEDURE ACT                                             Ch. 120

of the documents required to be filed by s. 120.54 or s.       licensed professional or in a proceeding for licensure of
120.55(1)(a)4.                                                an applicant for professional licensure which involves
   (f) Notwithstanding s. 120.57(1)(a), hearings              allegations of sexual misconduct:
which involve student disciplinary suspensions or                (a) The testimony of the victim of the sexual mis-
expulsions may be conducted by educational units.             conduct need not be corroborated.
   (g) Sections 120.569 and 120.57 do not apply to               (b) Specific instances of prior consensual sexual
any proceeding in which the substantial interests of a        activity between the victim of the sexual misconduct
student are determined by a state university or a com-        and any person other than the offender is inadmissible,
munity college.                                               unless:
   (h) Notwithstanding ss. 120.569 and 120.57, in a              1. It is first established to the administrative law
hearing involving a student disciplinary suspension or        judge in a proceeding in camera that the victim of the
expulsion conducted by an educational unit, the 14-day        sexual misconduct is mistaken as to the identity of the
notice of hearing requirement may be waived by the            perpetrator of the sexual misconduct; or
agency head or the hearing officer without the consent            2. If consent by the victim of the sexual miscon-
of parties.                                                   duct is at issue and it is first established to the adminis-
   (i) For purposes of s. 120.68, a district school           trative law judge in a proceeding in camera that such
board whose decision is reviewed under the provisions         evidence tends to establish a pattern of conduct or
of s. 1012.33 and whose final action is modified by a           behavior on the part of such victim which is so similar
superior administrative decision shall be a party enti-       to the conduct or behavior in the case that it is relevant
tled to judicial review of the final action.                   to the issue of consent.
   (j) Notwithstanding s. 120.525(2), the agenda for a           (c) Reputation evidence relating to the prior sexual
special meeting of a district school board under author-      conduct of a victim of sexual misconduct is inadmissi-
ity of s. 1001.372(1) shall be prepared upon the calling      ble.
of the meeting, but not less than 48 hours prior to the          (5) HUNTING AND FISHING REGULATION.—
meeting.                                                      Agency action which has the effect of altering estab-
   (k) Students are not persons subject to regulation         lished hunting or fishing seasons, or altering estab-
for the purposes of petitioning for a variance or waiver      lished annual harvest limits for saltwater fishing if the
to rules of educational units under s. 120.542.               procedure for altering such harvest limits is set out by
   (2) LOCAL UNITS OF GOVERNMENT.—                            rule of the Fish and Wildlife Conservation Commission,
   (a) Local units of government with jurisdiction in         is not a rule as defined by this chapter, provided such
only one county or part thereof shall not be required to      action is adequately noticed in the area affected
make filings with the committee of the documents               through publishing in a newspaper of general circula-
required to be filed by s. 120.54.                             tion or through notice by broadcasting by electronic
   (b) Notwithstanding any other provision of this            media.
chapter, units of government with jurisdiction in only           (6) RISK IMPACT STATEMENT.—The Depart-
one county or part thereof need not publish required          ment of Environmental Protection shall prepare a risk
notices in the Florida Administrative Weekly, but shall       impact statement for any rule that is proposed for
publish these notices in the manner required by their         approval by the Environmental Regulation Commission
enabling acts for notice of rulemaking or notice of meet-     and that establishes or changes standards or criteria
ing. Notices relating to rules are not required to include    based on impacts to or effects upon human health. The
the full text of the rule or rule amendment.                  Department of Agriculture and Consumer Services
   (3) PRISONERS AND PAROLEES.—                               shall prepare a risk impact statement for any rule that
   (a) Notwithstanding s. 120.52(12), prisoners, as           is proposed for adoption that establishes standards or
defined by s. 944.02, shall not be considered parties in       criteria based on impacts to or effects upon human
any proceedings other than those under s. 120.54(3)(c)        health.
or (7), and may not seek judicial review under s. 120.68         (a) This subsection does not apply to rules adopted
of any other agency action. Prisoners are not eligible to     pursuant to federally delegated or mandated programs
seek an administrative determination of an agency             where such rules are identical or substantially identical
statement under s. 120.56(4). Parolees shall not be           to the federal regulations or laws being adopted or
considered parties for purposes of agency action or           implemented by the Department of Environmental Pro-
judicial review when the proceedings relate to the            tection or Department of Agriculture and Consumer
rescission or revocation of parole.                           Services, as applicable. However, the Department of
   (b) Notwithstanding s. 120.54(3)(c), prisoners, as         Environmental Protection and the Department of Agri-
defined by s. 944.02, may be limited by the Department         culture and Consumer Services shall identify any risk
of Corrections to an opportunity to present evidence          analysis information available to them from the Federal
and argument on issues under consideration by sub-            Government that has formed the basis of such a rule.
mission of written statements concerning intended                (b) This subsection does not apply to emergency
action on any department rule.                                rules adopted pursuant to this chapter.
   (c) Notwithstanding ss. 120.569 and 120.57, in a              (c) The Department of Environmental Protection
preliminary hearing for revocation of parole, no less         and the Department of Agriculture and Consumer Ser-
than 7 days’ notice of hearing shall be given.                vices shall prepare and publish notice of the availability
   (4) REGULATION OF PROFESSIONS.—Notwith-                    of a clear and concise risk impact statement for all
standing s. 120.569(2)(g), in a proceeding against a          applicable rules. The risk impact statement must




                                                         65
Ch. 120                              ADMINISTRATIVE PROCEDURE ACT                                                                F.S. 2006

explain the risk to the public health addressed by the     rule nor diminish any existing cause of action or basis
rule and shall identify and summarize the source of the    for challenging a rule.
scientific information used in evaluating that risk.           History.—s. 42, ch. 96-159; s. 17, ch. 97-176; s. 49, ch. 99-2; s. 65, ch. 99-245;
                                                           s. 7, ch. 99-379; s. 28, ch. 99-398; s. 4, ch. 2000-214; s. 897, ch. 2002-387.
  (d) Nothing in this subsection shall be construed to
create a new cause of action or basis for challenging a




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