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					                     CFOP 30-1




ADMINISTRATIVE
    RULE
PROMULGATION

     July 15, 1997
                                                                                                                                        CFOP 30-1


                                                                                                                   STATE OF FLORIDA
                                                                                                                   DEPARTMENT OF
CF OPERATING PROCEDURE                                                                                             CHILDREN AND FAMILIES
NO. 30-1                                                                                                           TALLAHASSEE, July 15, 1997
                                                                             Legal

                                                ADMINISTRATIVE RULE PROMULGATION

This operating procedure describes the administrative rulemaking process and is intended to assist the rule writer in
successfully completing the promulgation of an administrative rule. At least a fundamental understanding of the
administrative process is assumed.

                                                                        CONTENTS

Chapter 1 - GENERAL                                                                                  Paragraph              Page

        Purpose.........................................................................................    1-1             1-1
        References....................................................................................      1-2             1-1
        Definitions......................................................................................   1-3             1-1
        Rulemaking Authority.....................................................................           1-4             1-3
        Responsibilities..............................................................................      1-5             1-3
        The Originating Office is Responsible for.......................................                    1-5a            1-3
        The General Counsel is Responsible for.......................................                       1-5b            1-3
        Rulemaking Process Outline..........................................................                1-6             1-4
        Additional Time Limits....................................................................          1-7             1-6
        Numbering System for Rules.........................................................                 1-8             1-7
        Typing Style and Format Requirements.........................................                       1-9             1-7

Chapter 2 - DRAFTING THE PROPOSED RULE and RULE REVIEW PROCEDURES

        Purpose.......................................................................................... 2-1               2-1
        Statutory Authority and Law Implemented..................................... 2-2                                    2-1
        Notice of Rule Development.......................................................... 2-3                            2-1
        Rule Development Workshop........................................................ 2-4                               2-2
        Initial Rule Documents List............................................................. 2-5                        2-2




This operating procedure supersedes HRSM 30-1 dated July 1, 1990, and HRSM 30-1A dated September 1, 1992.
OPR: OSLS
DISTRIBUTION: D
July 15, 1997                                                                                                        CFOP 30-1


                                                           CONTENTS (continued)
                                                                                               Paragraph      Page

       Preparing Initial Rule Documents.................................................. 2-6                 2-3
                 Before Drafting a Rule...................................................... 2-6a            2-3
                 Notice of Proposed Rulemaking........................................ 2-6b                   2-3
                         Scheduling a Public Hearing................................ 2-6b(1)                  2-3
                         The Public Hearing Advertisement Form............. 2-6b(2)                           2-4
                         A Purchase Order Number................................... 2-6b(3)                   2-4
                         Format of the Rule Text in the Notice.................. 2-6b(4)                      2-4
                 Memo to Bureau of Administrative Code for
                         Florida Administrative Weekly Publication........... 2-6c                            2-4
                 Statement of Facts and Circumstances............................ 2-6d                        2-4
                 Summary of the Rule........................................................ 2-6e             2-4
                 Federal Comparison Statement........................................ 2-6f                    2-4
                 Statement of Estimated Regulatory Cost.......................... 2-6g                        2-4
                 Rule Text.......................................................................... 2-6h     2-4
                 Materials Incorporated by References ............................. 2-6i                      2-5
                 Rule Review Forms........................................................... 2-6j            2-5
       Assembling Initial Rule Review File............................................... 2-7                 2-5
       Initial Rule Review Procedures...................................................... 2-8               2-6

Chapter 3 - PUBLISHING THE NOTICE OF PROPOSED RULEMAKING/
               NOTICE OF PUBLIC HEARING/ RELATED EVENTS

       Purpose......................................................................................... 3-1   3-1
       Publishing the Notice of Rule Development in the Florida
                           Administrative Weekly.......................................... 3-2                3-1
                Section 120.54(2) FS........................................................ 3-2a             3-1
                Formats and Procedures for FAW Publications................ 3-2b                              3-1
       Content of Notices......................................................................... 3-3        3-1
                Notice of Rule Development............................................. 3-3a                  3-1
                Notice of Proposed Rulemaking........................................ 3-3b                    3-2
       Distributing the Notice.................................................................... 3-4        3-3
                To the Joint Administrative Procedures Committee.......... 3-4a                               3-3
                To the Senate and House Committees on
                           Children and Families.......................................... 3-4b               3-3
                To Affected Persons......................................................... 3-4c             3-3
       Public Hearing Request................................................................. 3-5            3-4
       Conducting the Public Hearing...................................................... 3-6                3-4
       Public Comments and Material...................................................... 3-7                 3-4
       Changing or Withdrawing Proposed Rules.................................... 3-8                         3-5
       Joint Administrative Procedures Committee Objections or
                Comments on Proposed Rules......................................... 3-9                       3-6
       Informal Comments from Joint Administrative
                Procedures Committees.................................................... 3-10                3-7
       Rule Challenges............................................................................. 3-11      3-8




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                                                              CONTENTS (continued)
                                                                                                   Paragraph     Page

Chapter 4 - FINAL RULE REVIEW, SIGNATURE, AND FILING

       Purpose.......................................................................................... 4-1     4-1
       Joint Administrative Procedures Committee Certification............... 4-2                                4-1
       Final Rule File Documents List....................................................... 4-3                 4-1
       Preparing Additional Final Rule File Documents............................ 4-4                            4-2
                Cover Memo...................................................................... 4-4a            4-2
                Certification....................................................................... 4-4b        4-2
                A Public Hearing Summary............................................... 4-4c                     4-3
                Final Rule Text.................................................................. 4-4d           4-3
                Materials Incorporated by Reference................................ 4-4e                         4-4
                The Staff Summary Form.................................................. 4-4f                    4-4
       Assembling the Final Rule File...................................................... 4-5                  4-4
       Final Rule Review Procedures....................................................... 4-6                   4-5
                Assistant Secretary’s Final Review................................... 4-6a                       4-5
                General Counsel’s Final Review....................................... 4-6b                       4-5
                Secretary’s Signature........................................................ 4-6c               4-5
       Filing the Final Rule for Adoption................................................... 4-7                 4-6

Chapter 5 - EMERGENCY RULES

       Purpose.........................................................................................   5-1    5-1
       References....................................................................................     5-2    5-1
       General Information.......................................................................         5-3    5-1
       Emergency Rule Process Outline.................................................                    5-4    5-1
       Emergency Rule Documents List..................................................                    5-5    5-2
       Preparing Emergency Rule Documents........................................                         5-6    5-2
               Notice of Emergency Rulemaking....................................                         5-6a   5-2
               Cover Memo for FAW Publication.....................................                        5-6b   5-3
               Certification Form for Emergency Rules...........................                          5-6c   5-3
               Statement of Facts and Reasons for Finding an
                           Immediate Danger to the Public Health,
                           Safety, or Welfare...............................................              5-6d   5-3
               Emergency Rule Text.......................................................                 5-6e   5-3
               Staff Summary Form.........................................................                5-6f   5-4
       Assembling the Emergency Rule Review File...............................                           5-7    5-4
       Emergency Rule Review Process.................................................                     5-8    5-4
       Filing Emergency Rules.................................................................            5-9    5-4




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                                                             CONTENTS (continued)
                                                                                                  Paragraph    Page

Chapter 6 - ADDITIONAL RULEMAKING REQUIREMENTS

       Writing Style..................................................................................   6-1   6-1
       One Rule - One Subject................................................................            6-2   6-1
       Immediate Need to Write Rules....................................................                 6-3   6-1
       Negotiated Rulemaking.................................................................            6-4   6-1
       Mediation in Rulemaking...............................................................            6-5   6-1
       Impact of Rulemaking....................................................................          6-6   6-1
       Incorporation by Reference...........................................................             6-7   6-2
       Rulemaking Record.......................................................................          6-8   6-2
       Variances and Waivers..................................................................           6-9   6-3

APPENDIXES

       The Administrative Procedure Act                                                                        Appendix A
       Chapter 1S-1 F.A.C.                                                                                     Appendix B
       Capitalization Guidelines for Rules                                                                     Appendix C
       Cover Memorandum for Publications                                                                       Appendix D
       Notice of Rule Development                                                                              Appendix E
       Notice of Proposed Rulemaking                                                                           Appendix F
       Statement of Facts and Circumstances, Summary of the Rule,
                and Federal Comparison Statement                                                               Appendix G
       Sample Final Rule Text                                                                                  Appendix H
       Uniform Rules - Chapter 28 F.A.C.                                                                       Appendix I
       Cover Memorandum for Circulation Within the department                                                  Appendix J
       Certification                                                                                           Appendix K
       Summary of Public Hearing                                                                               Appendix L
       Notice of Change                                                                                        Appendix M
       Memorandum to the Secretary                                                                             Appendix N
       Staff Summary Form                                                                                      Appendix O




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                                                        Chapter 1

                                                       GENERAL

1-1. Purpose. The purpose of this chapter is to provide general information on rulemaking including references,
definitions, responsibilities, style and format guidelines, and an outline of procedures and timeframes for the
rulemaking process. For information not found in this operating procedure you are encouraged to first refer to the
source materials and then to consult with either the District Legal Counsel in your district or the General Counsel for
additional assistance. When seeking help with rulemaking and specific provisions of the Administrative Procedure
Act, Chapter 120, Florida Statutes, questions should first be directed to agency attorneys. The Joint Administrative
Procedures Committee (850-487-4110) and the Bureau of Administrative Code of the Secretary of State’s Office
(850-488-8427) will also be glad to provide technical assistance if you have questions about their respective
requirements for rulemaking.

1-2. References.

        a. The Department of State provides copies of its own internal rulemaking guide to most of the
department’s major program units. If one is not available in your unit, check with the Department of State to obtain
a copy. The following will also be essential during your rulemaking efforts:

                    (1) Chapter 120, Florida Statutes (F.S.), Administrative Procedure Act (1996).

                    (2) Chapter 1S-1, Florida Administrative Code (F.A.C.), Rulemaking.

                    (3) Chapters 28-102 and 103 F.A.C., Uniform Rules of Practice and Procedure.

         b. As part of the amendments to Chapter 120, the 1996 legislature required the Administration
Commission to adopt a series of Uniform Rules which apply to rulemaking. These replaced the Model Rules of
Procedure formerly found in Chapter 28, F.A.C. and are effective April 1, 1997. These new rules have a significant
effect upon rulemaking and should be reviewed prior to any rulemaking effort.

       c. The appendixes to this operating procedure contain a copy of the Administrative Procedure Act (1996),
Chapter 1S-1 F.A.C. and the Uniform Rules of Procedure. [See Appendixes A, B and I.]

1-3. Definitions.

         a. Affected Party. Any person whose substantial interest will be affected by the rule. The term substantial
interest is a term of art and is often subject to determination on a case by case basis. Where a person is directly
and adversely affected by a rule, however, s/he is usually an affected party.

       b. Adoption Date. The date the rule is filed for adoption with the Office of the Secretary of State, Bureau of
Administrative Code.

        c. Administrative Procedure Act (APA). Chapter 120, Florida Statutes.

       d. Bureau of Administrative Code. The bureau of the Department of State which has specific duties
concerning administrative rules.




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           e. Effective Date. The date upon which a rule becomes effective. Usually a rule is effective 20 days after
filing for adoption with the Bureau of Administrative Code unless a later date is specified in the rule or unless it is an
emergency rule which is effective upon filing with the Secretary of State, Bureau of Administrative Code.

       f. Final Rule. The final version of a rule which is to be filed for adoption with the Bureau of Administrative
Code and which is published in the Florida Administrative Code as a promulgated rule.

         g. Florida Administrative Code. A publication of the Department of State. It is a multi-volume set of books
which comprise the official compilation of all the administrative rules promulgated by all the administrative agencies
of the state.

        h. Florida Administrative Weekly. Published by the Department of State, this weekly volume includes
notices of rule development, proposed rules, public hearings, workshops and other information pertaining to
administrative matters.

         i. Florida Statutes (F.S.). Where ever possible, citations to statutes should be to the section numbers in
the Florida Statutes. Reference to the Session Laws (for example, 96-53 Laws of Florida) or to the Senate or
House Bill number (for example, H.B. 1234) should be avoided.

         j. History Notes. Notes which appear at the end of a rule section which show the initial effective date of the
rule, dates of each amendment, and previous rule number, if any, and other important information about the rule
and its promulgation.

        k. Joint Administrative Procedures Committee. A standing committee of the Florida Legislature that
examines rules for specific statutory authority and compliance with legislative mandates to assure that the rule does
not exceed or depart from the legislature’s intended purpose for the statute. The Joint Administrative Procedures
Committee also examines rules for form and other technical matters involved in the rulemaking process.

       l. Notice. The formal document published in the Florida Administrative Weekly to notify the public of
rulemaking activities.

        m. Originating Office. The Children and Families office that drafts and promulgates a rule.

       n. Office of the General Counsel (OSLS). The office that is part of the Office of the Secretary, and that is
responsible for furnishing legal advice and legal services to the agency.

        o. Rule. As defined in s.120.52(15), F.S.:

                   (1) An agency statement of general applicability that implements, interprets or prescribes law or
policy . . . and includes any form which imposes any requirement or solicits any information not specifically required
by a statute or by an existing rule.

                 (2) The terms also includes the repeal of an existing rule and an amendment to an existing rule.
There are certain exceptions to the definition of a rule which should be consulted before creating a new rule which
are also found in s.120.52(15)(a) through (c), F.S.

        p. Secretary. The Secretary of the State of Florida, Department of Children and Family Services.

        q. SHRAC. The Statewide Human Rights Advocacy Committee.


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July 15, 1997                                                                                                    CFOP 30-1


         r. Specific Authority. That section of the Florida Statutes which gives the agency the authority to adopt
rules on a specific subject. General grants of rulemaking authority, although once considered by the legislature to
be sufficient to allow rulemaking, are no longer valid as specific authority for a specific rule. See s.120.535(1), F.S.

1-4. Rulemaking Authority. That authority which is delegated by the Legislature to an executive agency and which
allows that agency to engage in rulemaking on a specific topic. Rules have the force and effect of statutes and the
authority to promulgate specific rules originates in the legislature. The agency has no inherent rulemaking authority
or authority to establish penalties for violation of a rule unless specified by the law. See s.120.54(1)(e), F.S.

1-5. Responsibilities.

        a. The originating office is responsible for:

                  (1) Rule workshops, negotiating, drafting or otherwise creating the proposed rule or rule
amendment and all related documents; ensuring proper completion of the documents required by the Joint
Administrative Procedures Committee, Bureau of Administrative Code and the department; maintaining statutory
and internal timeframes; and monitoring the status of the rule throughout the rulemaking process to ensure timely
filing with the appropriate authorities.

                 (2) Delivering the required rule documents to the Bureau of Administrative Code for publication
and to the Joint Administrative Procedures Committee and, where required, to others including the legislature for
review.

                (3) Maintaining a current list of people and organizations who have requested notification of
rulemaking proceedings related to the program administered by that office and who are substantially affected by the
proposed rule or rule amendment, and, where appropriate, ensuring they are notified.

                 (4) Compiling and retaining on file the rulemaking record required by s.120.54(8), F.S.

        b. The General Counsel is responsible for:

                   (1) Ensuring the rule complies with the stated statutory authority and that the law implemented
citation is legally correct, that the rule is not contrary to the perceived legislative intent, and that the rule complies
with agency policy.

                 (2) Providing legal assistance and technical advice on rule content, format, drafting, and
procedures.

                 (3) Representing the agency in legal matters related to the proposed rule.

                (4) Notifying staff of changes in Chapter 120, F.S., the Uniform Rules of Procedure, or Chapter
1S-1, F.A.C. which occur subsequent to publication of this document and which affect legal aspects of the rule
promulgation process.

                 (5) Providing training on rule promulgation and instructions for conducting public hearings on rules.

                 (6) Reviewing this operating procedure as appropriate.

1-6. Rulemaking Process Outline. This paragraph provides an overview of the rulemaking process. Additional
details will be found in subsequent chapters where specific explanations are given.

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         a. The earliest stage of rulemaking now requires that notice be given to the public that the agency is
considering entering into the rulemaking process. This notice is accomplished through the use of a document
called the “Notice of Rule Development.” (See Appendix E for a sample.) Anyone who the agency knows will be
affected by this process is also given notice that it is about to begin. The Notice of Rule Development must be
published in the Florida Administrative Weekly but requires no other agency review outside the program area
responsible for it. A request for a rulemaking workshop may be received by agency personnel and if received must
be honored. Rule development workshops must be held if requested in writing by any substantially affected person
or organization. You must read s.120.54(2) and Rule 1S-1.003(4), F.A.C. for details and the format for this notice.
Only after the Notice of Rule Development has been published and any requested rule development workshops
held, may a Notice of Proposed Rulemaking be published. Since no other approval beyond program approval is
required for a Notice of Rule Development, the originating program office is responsible for its publication and for
scheduling the workshops which may take place pursuant to it.

         b. Although the Notice of Proposed Rulemaking used to be the first step in the formal rulemaking process,
it is now just one of the various notices which must be given to the public and to those who may be affected by the
proposed rule. The Notice of Proposed Rulemaking includes a draft of the proposed rule which has already had
input not only from the department but from the public through the rule development workshops already described.
It should be in a more nearly finished form since extensive review within the agency and by interested groups will
have already taken place before this Notice is published. Publication of a Notice of Proposed Rulemaking requires,
among others, General Counsel approval before the actual publication.

        c. In developing complex rules or rules that may generate strong opposition, the agency should consider
using a new form of rulemaking procedure called negotiated rulemaking. It is described in s.120.54(2)(d), F.S. The
decision to use negotiated rulemaking should not be made without prior consultation with the General Counsel.

        d. The originating office is charged with preparing the draft proposed rule which will accompany the Notice
of Proposed Rulemaking and the rule review file in consultation with an attorney from the Office of the General
Counsel.

        e. The Assistant Secretary who is responsible for the originating office next reviews and approves the rule.

         f. Copies of the draft rule are distributed for review, comment or approval to all assistant secretaries whose
programs or responsibilities are affected by the rule; SHRAC; the General Counsel; and all district administrators.
Distribute the rule with a copy of the cover memorandum shown in Appendix J, which provides a place to record
comments and for approval and sign-off.

        g. Reviewers’ comments are returned to the originating office.

         h. The originating office reviews the comments received and makes any appropriate changes, coordinating
with reviewers who requested substantive changes until consensus is achieved and the proposed rule is approved;
the revised draft must then be approved by the assistant secretary responsible for the program and by the General
Counsel. Minor or technical changes require only the assistant secretary’s and General Counsel’s approval. Major
substantive changes require re-review by all offices affected by the changes.

         i. Any requested public hearing is scheduled by the originating office and a purchase order obtained to pay
for publication of the notice.

        j. Notice of Proposed Rulemaking is delivered to the Bureau Of Administrative Code for publication with the
required cover memo (see Appendix D).

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         k. Notice is mailed to persons named in the rule, persons who have previously requested notification in
writing, and any substantially affected parties. Copies of the notice and other required rule documents are
submitted to the Joint Administrative Procedures Committee, and House and Senate Committees on Children and
Families.

         l. A Public hearing is held if requested by any substantially affected party or at the discretion of the
originating office.

        m. A Summary of the public hearing is prepared and signed by the presiding officer.

          n. A rule challenge hearing may be held if a petition for an administrative determination challenging the
validity of the rule is filed with the Division of Administrative Hearings by a substantially affected person.

      o. The originating office makes changes in the rule as needed based on comments received during the
comment period, at the public hearing or as a result of review by the Joint Administrative Procedures Committee.

          p. Notice of substantive changes must be filed with the Joint Administrative Procedures Committee at least
21 days before filing for adoption, and must be published in the Florida Administrative Weekly, and provided by
certified mail or hand delivery to any person who requests it in writing at the public hearing. If no changes are
made, the Joint Administrative Procedures Committee must also be notified that no change has taken place. This
latter notice must be given to the Committee at least 7 days before filing the proposed rule for final adoption.

        q. The originating office next prepares the final rule review file and forwards it to their appropriate assistant
secretary for approval and signature on the cover memo to the secretary.

        r. When all required changes have been made, the final rule file goes to the General Counsel for legal
review which includes final legal approval of the rule, the rule package content and the content of the accompanying
documents.

          s. The rule is then submitted to the office of the Secretary, Executive Staff for review of style, and
forwarding to the secretary for signature. You must allow no less than five working days before the filing deadline
for this step. In determining an internal deadline for filing it must be remembered that any Notice of Technical
Change must be filed at least 7 days before the rule can be filed with the Secretary of State for adoption.

         t. After signature, the rule is filed by the originator with the Bureau of Administrative Code for adoption and
publication in the Florida Administrative Weekly. A copy of the rule as date stamped by the Secretary of State
together with a disk containing the rule text and supporting documents as filed must be supplied to the General
Counsel.

1-7. Additional Time Limits.

         a. Rules required by legislation to implement a law must be drafted and formally proposed within 180 days
of the effective date of the law, unless the legislation provides otherwise. [s.120.54(1)(b), F.S.]

        b. The Notice of Proposed Rulemaking must be published in the Florida Administrative Weekly no less
than 28 days prior to the proposed adoption date.

        c. No less than 7 days notice is required for all public meetings except where specific provisions of law
permit otherwise.

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         d. At least 21 days prior to the proposed adoption date, the notice must be mailed to all persons named in
the proposed rule, to all persons who have requested (at least 14 days prior to mailing) advance notice of
rulemaking proceedings and, as prescribed by rule, to those particular classes of persons to whom the intended
action is directed (substantially affected persons). [s.120.54(3)(a)3, F.S.]

       e. At least 21 days prior to the proposed adoption date, file a copy of the notice; the proposed rule; the
statement of facts and circumstances justifying the rule; and the federal comparison statement with the Joint
Administrative Procedures Committee, and the Senate and House Committees on Children and Families.

         f. Requests for a public hearing on a rule must be received within 21 days after the date of publication of
the notice.

       g. Any pertinent material submitted to the agency within 21 days after the date of publication of the notice
or submitted at a public hearing shall be considered by the agency and made a part of the record of the rulemaking
proceeding.

          h. At least 7 days prior to filing the rule for adoption, a notice of technical change or of no change must be
filed with the Joint Administrative Procedures Committee. If changes were substantive, a notice of change must be
published in the Florida Administrative Weekly (at least 21 days before filing the rule for adoption), filed with Joint
Administrative Procedures Committee, and provided by certified mail or hand delivery to any person requesting
such notice in writing at the public hearing. [s.120.54(3)(d)1, F.S.]

        i. The proposed rule must be filed with the Bureau of Administrative Code for final adoption not less than
28 days or more than 90 days after the date of publication of the notice in the Florida Administrative Weekly unless
the time for filing has been extended by the filing and disposition of a rule challenge proceeding.

                 (1) If a public hearing is held, the 90-day limit is extended to 21 days after receipt of all material
authorized to be submitted at the hearing, or 21 days after receipt of the transcript, if one is made, whichever is
later. The term public hearing includes any public meeting where the rule is considered. [s.120.54(3)(e)2, F.S.]

                   (2) The filing of a petition for an administrative determination will suspend counting of the 90 days
allowed for filing the final rule until an Administrative Law Judge who hears the petition has rendered his order.
[s.120.54(3)(e)2, F.S.]

               (3) If a rule has not been adopted within the time limits specified by s.120.54(3)(e), F.S., the
agency must withdraw the rule and give notice of its action in the next available issue of the Florida Administrative
Weekly.

         j. A rule is adopted upon filing for adoption with the Bureau of Administrative Code but it does not become
effective until 20 days after filing, on a later date specified in the rule, or on a specific date required by statute.

1-8. Numbering System for Rules. The numbering system for rules is described in Rule 1S-1.001, F.A.C. (See
Appendix B.) Additional numbering requirements are:

        a. New rule chapters require new chapter numbers which can only be obtained from the Bureau of
Administrative Code (850-488-8427). New numbers for additional rules in existing chapters are numbers that have
never been used before in that chapter. A rule number may be used only once.



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         b. Amendments to existing rules or rule sections do not require new numbers and may use or keep the
original numbers of the sections they amend.

        c. When new rule sections or subsections are added to an existing rule, the new section or subsection
must be given numbers that follow the existing numbers, unless a reserved section number is used. Verify new
chapter or major division numbers with the Bureau of Administrative Code.

        d. New rules which supersede and replace existing rules must have new numbers, which must be obtained
from the Bureau of Administrative Code. The rules which are superseded and replaced must be repealed; once
repealed, their numbers may not be reused.

        e. Rule section numbers may be reserved for future use.

         f. A rule section in its entirety may be transferred, with no changes in the text, to a new location in the
F.A.C. This usually occurs as a result of a governmental reorganization but can result from a reordering of rule
chapters by an existing agency. Renumbering such rules by the agency is accomplished by writing a letter to the
Bureau of Administrative Code requesting the transfer. No change in text may be made during the transfer as this
would constitute an amendment and not a transfer. Transferring a rule section in this manner does not normally
require notice in the Florida Administrative Weekly as it is usually considered a “technical change”. (See Rule 1S-
1.001(9)(a), F.A.C. in Appendix B.) Nevertheless, in the case of an inter-agency transfer of rules, you must assure
that the agency to which the rules are transferred acknowledges that the rules are now the new agency’s
responsibility and sends a copy of that acknowledgment to the Bureau of Administrative Code. A letter to the
receiving agency should be sent by the transferring agency advising them formally of the transfer and of the
communication with the bureau. The transfer process is complete only when the bureau has received not only the
sending agency’s packet but the receiving agency’s acknowledgment. All of this correspondence is the
responsibility of the originating office.

1-9. Typing Style and Format Requirements.

        a. Rule documents required by the Bureau of Administrative Code and Joint Administrative Procedures
Committee must be typed on white letter-size paper (8 1/2 x 11), double-spaced. Margins of at least one inch
should be left at the top, bottom and each side of the page. Each page of the final rule text must be numbered
including the first page.

         b. Requirements for publication in the Florida Administrative Weekly (notices) and F.A.C. (final adopted
rules) differ. You must read Rules 1S-1.002 and 1S-1.003, F.A.C. carefully for specific details on these
requirements.




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                                                      Chapter 2

                     DRAFTING THE PROPOSED RULE and RULE REVIEW PROCEDURES

2-1. Purpose. This chapter describes procedures for drafting the proposed rule, preparing the documents required
for the initial rule review file, and initial rule review procedures. Section 120.54(6), F.S. describes a simplified
procedure for adopting a special category of rules that are substantively identical to federal regulations. If your
rulemaking is limited to simply adopting or incorporating federal standards you should carefully read and follow that
(see Appendix A).

2-2. Statutory Authority and Law Implemented. Section 120.54(3)(a)(1), F.S. requires that each rule contain a
reference to the legislative authority which allows its promulgation (statutory authority) and a reference to the law
which is being implemented or interpreted (law implemented). These statutory citations will both appear in the
history notes at the end of the rule text. Although on some occasions both may refer to the same statutory section,
they are not the same.

         a. The law implemented portion of the history notes refers to the statute which is either implemented or
interpreted by the department through its rule. For example, a statute might provide: “. . . children shall be
protected from accidental injury at child care centers which have staircases . . .” This statute would be cited in the
history notes as the “Law Implemented” for a rule which requires a proper gate or fence across a staircase in a day
care center to prevent accidental access.

         b. The statutory authority provision, however, pertains only to whether or not the legislature has given the
department the authority to promulgate the rule at the outset. It is that specific grant of delegated legislative
authority by which the legislative prerogative to make the law is delegated to the department. As such, it must be
specific in its grant of authority to the department and the rule sought to be promulgated as a result of that
delegation must be readily identifiable with that grant.

         c. For example, if a rule about child care facilities prescribes a fence around a staircase, the statutory
authority provision which is to be cited must allow (or require) the department to promulgate rules with regard to at
least environmental safety at a child care center. Such a statute might provide, “ . . . the department shall provide
by rule the nature and height of any fence to be placed across a staircase located at child care centers . . .” General
provisions regarding safety will not suffice as statutory authority to the extent they once did. See s.120.54, F.S.

2-3. Notice of Rule Development. Before publishing a Notice of Proposed Rulemaking, the agency must publish a
Notice of Rule Development in the Florida Administrative Weekly. The Notice of Rule Development to be published
in the Florida Administrative Weekly must be accompanied by the cover memo shown in Appendix D and must
include:

        a. The subject matter to be addressed by rule development; and,

        b. A short plain statement of the purpose and effect of the rule development; and,

        c. The specific authority for the rule development; and,

        d. A copy of the preliminary text of the proposed rules if available (see s.120.54(2), F.S.);

        e. A citation to the Law Implemented;



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       f. Notice of the rule development workshop if one has been scheduled and notice that one will be
scheduled if requested if it has not already been scheduled;

        g. The name of the contact person for the rule; and,

        h. A cover letter.

        i. A disk must accompany the notice to the Bureau of Administrative Code.

        j. See Rule 1S-103(4), F.A.C for additional details.

        k. Also see Rule 1S-1.003(4), F.A.C. for the format required for this notice. Uniform Rule 28-103.002,
Florida Administrative Code may also be helpful.

2-4. Rule Development Workshop. Following publication of a Notice of Rule Development, and if requested in
writing by any affected person, the agency must hold a rule development workshop unless the agency head
explains in writing why a workshop is not necessary. The purpose of the workshop is to allow public input into the
rulemaking process at an early enough stage so that the input is effective.

        a. Notice of the rule development workshop must be published in the Florida Administrative Weekly not
less than 14 days prior to the actual date of the workshop and must indicate the date, time, and place of the
workshop, the subject matter of the rulemaking, and the agency contact person. The notice must also contain a
statement that any person may submit information:

                 (1) Relating to the department’s statement of estimated regulatory costs (but only if one is
requested or if one has been prepared); and,

                   (2) Any proposals as to how the same department regulatory goal can be achieved with a lower
regulatory cost.

        b. See s.120.54(3)(a), F.S. Also see Rule 1S-1.003(9), Florida Administrative Code for the appropriate
format for the Notice

         c. It should be remembered that any rule, including one which results from this development process,
must be drafted in readable language and without convoluted or complicated sentence structure. Long and
complicated sentences are not acceptable. See s.120.54(2)(b), F.S. The use of technical language which is
understood only by members of a particular trade or profession is also to be avoided whenever possible and will be
a valid reason for disapproval of the proposed rule by department reviewers.

2-5. Initial Rule Documents List. Once the workshop has been completed and the rule writer has created at least a
working draft of the proposed rule or rules, internal review by the agency proceeds. These are the documents
needed for initial review of the proposed rule by department staff before publication in the Florida Administrative
Weekly:

        a. Notice of Proposed Rulemaking.

        b. Cover memo to Bureau of Administrative Code requesting Florida Administrative Weekly publication.

        c. A Statement of the Facts and Circumstances justifying the rule.


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        d. A summary of the rule.

        e. A Federal Comparison Statement.

        f. A Statement of Estimated Regulatory Costs (if one has been requested or prepared).

        g. Rule text including history notes.

        h. Copy of materials incorporated by reference.

        i. Internal review forms.

        j. A 3 1/2 inch disc containing all of the above in the department’s current standard word processing
format. Materials incorporated by reference should be included on the disc if available in that form.

2-6. Preparing Initial Rule Documents. Rule language must be clear, concise and specific and must be easily read
and understood. Avoid the use of vague language, unnecessary technical terms, and long awkward and confusing
sentence structure. The documents which accompany a rule draft must likewise follow these style requirements.

         a. Before Drafting A Rule. Review the legislation that you believe authorizes the rule to determine the
extent of permissible rule content. A rule must not exceed the scope of its cited rulemaking authority. Consult with
the General Counsel to ensure the rule does not exceed its specific statutory authority and that it does not merely
restate the language of existing statutory provisions or other rules. Phrases such as “including but not limited to”,
“may”, “and/or”, “reasonable”, “timely”, “adequate”, “acceptable”, “normally” and other phrases which are subject to
multiple interpretations should not be used in the rule text. Also, consider whether the rule will have a disparate
impact upon small businesses or small counties and consider alternatives which may be less costly or which allow
differing modes of compliance. See ss.120.54 and 120.541, F.S. for details.

        b. Notice of Proposed Rulemaking. When approval has been obtained through the internal departmental
review process, the proposed rule is ready to be published in the Florida Administrative Weekly as part of the
Notice of Proposed Rulemaking. The specific format, content and style of the notice are set out in Rule 1S-
1.003(5),F.A.C. by the Secretary of State and must be followed. See Appendix F for an example of a Notice.

                (1) Scheduling a Public Hearing. The notice includes a public hearing date, which must be
scheduled by the originating office before publishing the notice. Uniform Rule 28-102.101, F.A.C. requires no less
than 7 days advance notice of all public meetings or workshops. The process for setting up a public hearing
involves:

                          (a) Designating a presiding officer who is usually selected by the program director. Upon
request, the General Counsel may be able to provide an attorney to conduct the hearing and to assist with the
conduct of particularly complicated or controversial public hearings. Routinely, however, a program person
knowledgeable in the subject matter of the rule may preside.

                         (b) Determining the hearing date, time, and place, in coordination with the designated
presiding officer. The hearing must be scheduled on a date not less than 21 days after the Notice of Proposed
Rulemaking is published in the Florida Administrative Weekly.

                (2) The public hearing advertisement form to be used in the Notice of Proposed Rulemaking
appears as shown in Appendix F. If the agency intends to hold a public hearing even though one is not requested,
the statement will read: “A hearing will be held at the time, date and place shown below.”

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                 (3) A purchase order number must appear at the bottom of the notice and in the cover memo that
accompanies the notice to provide for payment of the cost of publication in the Florida Administrative Weekly. The
current cost per line can be obtained from the Bureau of Administrative Code (850-488-8427). Obtain the purchase
order number from our purchasing office. The originating office is responsible for the cost of publication.

               (4) The format of the rule text in the notice depends on whether the rule is a new rule, rule
amendment, or rule repeal. See Rule 1S-1.003, F.A.C. in Appendix B for details.

      c. Memo to Bureau of Administrative Code for Florida Administrative Weekly Publication. A form for this
document is set out in Appendix D and should be used as shown.

        d. The statement of facts and circumstances is a detailed written statement that provides justification for
adopting the proposed rule. For an example, see Appendix G.

         e. The summary of the rule briefly describes the substance of the rule. Remember that a rule must deal
with only one general subject. See s.120.54(1)(g), F.S.; for an example, see Appendix G.

         f. The federal comparison statement explains the extent to which the proposed rule establishes standards
which are the same, more restrictive, or less restrictive than federal standards on the same subject, or that a federal
rule on the same subject does not exist. A simple statement stating which of the above is the case is all that is
needed here. The statutory requirement for this document is found in s.120.54(3)(a)4, F.S. and an example of the
form to be used is found in Appendix G.

         g. Statement of Estimated Regulatory Cost. A Statement of Estimated Regulatory Cost is not required
unless requested by a substantially affected party within 21 days after publication of the Notice of Proposed
Rulemaking; however, agencies are encouraged to prepare a Statement of Estimated Regulatory Cost for rules that
will result in costs to affected parties. The information required in this statement is described in s.120.541, F.S. and
Appendix A. Although similar in many respects to its predecessor (i.e., the Economic Impact Statement), and
although it is subject to many of the same provisions, this Statement requires a more in depth study of the cost
impact of any proposed rule.

        h. Rule text. Although the final rule text is not filed until the rule is ready for adoption, the text that is
advertised in the Florida Administrative Weekly as part of the Notice of Proposed Rulemaking must also be
submitted to the Joint Administrative Procedures Committee for review when the Notice is sent for publication;
therefore, it is prepared as part of the initial review file. The numbering, catchline, style and form requirements for
preparing the final rule text for new rules, amendments and repeals are detailed in Rules 1S-1.001 and 1S-1.002,
F.A.C. Also see Appendix B. Here is some additional information which might be helpful:

                (1) Include a heading at the beginning of the rule that includes the name of the department, name
of the program area, and the rule title. (See Appendix H.)

                  (2) Each rule page must be numbered. The first page of the rule with the heading at the top is
page 1.

          i. Materials Incorporated By Reference.

                 (1) A rule may incorporate material by reference but only as such material exists on the date the
rule is adopted. Subsequent changes in material incorporated by reference will not affect the rule and are not


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automatically incorporated within it unless the rule is specifically amended to incorporate the material as changed.
Because of this provision, it is wise to incorporate only those materials that are not subject to frequent changes.

                  (2) Materials incorporated by reference may be federal regulations, ordinances, standards,
specifications, forms and other documents that are part of the rule requirements. All or part of such documents
may be incorporated by stating the document title, date, author or publisher, followed by “ . . . which is hereby
incorporated by reference as if fully set out here." See s.120.54(1)(i), F.S. and Rule 1S-1.005, F.A.C.

                 (3) A form that imposes a requirement or solicits information not specifically required by statute or
by an existing rule must itself be promulgated as a rule, as part of a rule, or it may be incorporated by reference in
the associated rule. [ss.120.52(16) and 120.54(8), F.S.] The reference in the rule text must specifically state that
the form is being incorporated by reference using the language in paragraph (2) above and must also include the
form number, title, effective date and an explanation of how and where the form may be obtained. [s.120.55(l)(a)4,
F.S.]

                 (4) Materials incorporated by reference must be accompanied by a certification page that
describes the referenced material and specifies the rule to which the material relates. (See Appendix K.)

        j. Rule review forms must accompany the copies of the rule that are distributed during the initial internal
review process. Use the format shown in Appendix J.

2-7. Assembling Initial Rule Review File.

        a. Place the documents in a folder in the following order from top to bottom:

                 (1) Notice of Proposed Rulemaking.

                 (2) Cover memo to Bureau of Administrative Code requesting Florida Administrative Weekly
publication.

                 (3) A Statement of the facts and circumstances justifying the rule.

                 (4) A Summary of the rule.

                 (5) A Federal comparison statement.

                 (6) A Statement of Estimated Regulatory Costs (if one has been requested or prepared).

                 (7) Rule text including history notes.

                 (8) Copy of Materials incorporated by reference.

                 (9) Internal review forms.

                  (10) A 3 1/2 inch disc containing all of the above in the current department standard word
processing format except for the materials incorporated by reference which should be included on the disc if
available in that form.

        b. Staple the review form to the front of the folder.


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2-8. Initial Rule Review Procedures.

        a. Forward the file to your assistant secretary for approval. If a rule is expected to be controversial or
challenged, the assistant secretary should brief the secretary on the content before approving it.

          b. When approved by your assistant secretary, prepare additional rule review folders for simultaneous
distribution to the assistant secretaries for any other unit affected by the rule; the assistant secretary for
administration; the General Counsel; SHRAC; and the district administrators. Staple the review form to the front of
each folder for distribution. Discs are optional for all reviewers except the General Counsel. You should consult
each reviewer to determine preferences.

        c. Reviewers will provide comments, if any, check the review form to indicate approval or disapproval, sign
and date the form, and return the folder to the originating office.

         d. The originating office must then review any comments and makes changes as appropriate, coordinating
with any reviewers who requested substantive changes. A revised draft incorporating all the requested and agreed
upon changes is then to be returned to reviewers who disapproved the first draft for re-review and approval. The
result will be the final draft.

        e. Any final draft must again be approved by your assistant secretary and the General Counsel before it
can be approved by the Secretary and then published as a proposed rule.

        f. When all approvals have been secured the originating office must remember to schedule the public
hearing and that date must be added to the notice before sending it to the Bureau of Administrative Code.




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                                                       Chapter 3

                            PUBLISHING THE NOTICE OF PROPOSED RULEMAKING
                                       NOTICE OF PUBLIC HEARING
                                         AND RELATED EVENTS

3-1. Purpose. This chapter describes procedures for publishing the Notice of Proposed Rulemaking in the Florida
Administrative Weekly, distributing the Notice to others, conducting public hearings, and handling the events which
may follow publication, distribution, and public hearings.

3-2. Publishing the Notice Of Rule Development in the Florida Administrative Weekly.

         a. Section 120.54(2), F.S. requires the department to publish a notice to the public that it is about engage
in the rulemaking process. The notice should be published in the Florida Administrative Weekly in order to reach
the widest geographic area within the state and to reach those who have an interest in the administrative process.
To be published in the Florida Administrative Weekly a Notice of Rule Development must be submitted to the
Bureau of Administrative Code. A cover memorandum requesting publication and a Department of Children and
Family Services purchase order number must be provided to cover the cost of publication. The purchase order
should be made out to the Department of State. The form which must be used for this memorandum is reprinted in
Appendix D.

        b. Formats and Procedures for Florida Administrative Weekly Publications.

                 (1) Rule 1S-1.003, F.A.C, reprinted in Appendix B, provides details on the required form and other
important requirements for submitting items for publication to the Florida Administrative Weekly. Once prepared,
the Notice must be delivered to:

                          Department of State
                          Bureau of Administrative Code
                          Room 2002, The Capitol
                          Tallahassee

              (2) EVERYTHING SENT FOR PUBLICATION IN THE FLORIDA ADMINISTRATIVE WEEKLY
MUST BE ACCOMPANIED BY A DISK VERSION OF THE HARD COPY IN ONE OF THE FORMATS PERMITTED
BY RULE 1S-1.003(2)(a), F.A.C.

3-3 Content of Notices.

        a. Notice of Rule Development.

                (1) The Notice of Rule Development must include at least the following:

                          (a) The subject area to be addressed by rule development; and,

                          (b) A short plain explanation of the purpose and effect of the rule development; and,

                          (c) A citation to the legal authority for the rule development (statutory authority); and,

                          (d) A citation to the law which is being implemented or interpreted (law implemented); and


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                         (e) Preliminary text of the rules under development if available; and,

                         (f) The person to be contacted regarding the rule under development.

                (2) The format and style for the Notice of Rule Development is specified in Rule 1S-1.003(4),
F.A.C. That format and style are not optional.

                 (3) After the rulemaking process has progressed through the rule development process, has been
discussed at a workshop where appropriate, and a draft of the rule has been finalized to the extent that it can
properly be referred to as a proposed rule, a Notice of Proposed Rulemaking must be prepared and published in
the Florida Administrative Weekly.

        b. Notice of Proposed Rulemaking.

                  (1) Like the Notice of Rule Development, the form and content for the Notice of Proposed
Rulemaking are found in Rule 1S-1.003(5), F.A.C. The contents of the Notice of Proposed Rulemaking are set out
in statute at s.120.54(3)(a), F.S. Briefly, and in addition to a cover letter, they include:

                         (a) Evidence that the agency head has approved the action to which the Notice is
directed; and,

                         (b) A short plain explanation of the purpose and effect of the proposed rule(s); and,

                         (c) The full text of the proposed rule or amendment; and,

                         (d) A summary of the proposed rule or amendment; and,

                         (e) A citation to the legal authority for the rule development (statutory authority); and,

                         (f) A citation to the law which is being implemented or interpreted (law implemented); and,

                        (g) If requested or if prepared by the agency according to the factors set out in
s.120.54(2), F.S., a summary of the estimated regulatory costs; and,

                          (h) If a statement of the estimated regulatory costs has been prepared, a statement of
how an affected person may submit information with regard to that regulatory cost or information as to a lower cost
alternative as provided in s.120.54(1), F.S.; and, (Note: Anyone wanting to supply such cost information must do
so within 21 days of the publication of the notice.)

                         (i) The procedure for requesting a public hearing on the proposed rule; and,

                         (j) The name of the person to be contacted regarding the proposed rule.

               (2) The form and style for this Notice are provided by the Secretary of State in Rule 1S-1.003(5),
F.A.C. and must be followed closely.

                 (3) The Notice of Proposed Rulemaking applies not only to the promulgation of a new rule but to
the amendment of a rule as well. Essentially the same information is required and the same format from Rule 1S-
1.003(5), F.A.C. is used.


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3-4. Distributing the Notice.

        a. To the Joint Administrative Procedures Committee.

                (1) At the same time the Notice of Proposed Rulemaking is filed with the Bureau of Administrative
Code for publication, a copy of the notice must also be delivered to the Joint Administrative Procedures Committee
with:

                         (a) A copy of the Statement of Facts and Circumstances justifying the rule; and,

                         (b) The Federal Comparison Statement; and,

                         (c) The text of the proposed rule; and,

                         (d) Materials incorporated by reference (if any); and,

                         (e) The Statement of Estimated Regulatory Cost (if one has been requested or prepared).

               (2) Note on the outside of the envelope: “Notice: Department of Children and Family Services
Proposed Rules Enclosed” and deliver to:

                         Joint Administrative Procedures Committee
                         Room 120 Holland Building
                         Tallahassee

       b. To the Senate and House Committees on Children and Families. At the same time the Notice of
Proposed Rulemaking is filed for publication, the same documents that are submitted to the Joint Administrative
Procedures Committee must be submitted to the Senate and House Committees for Children and Families.

        c. To affected persons.

                 (1) A copy of the Notice of Proposed Rulemaking must also be mailed to:

                         (a) All persons who have requested (at least 14 days prior to the publication) advance
notice of the rule proceedings; and,

                         (b) All persons named in the rule; and,

                         (c) Persons directly affected by the rule.

                  (2) Notice to all substantially affected persons of whom we are aware must also be given. If a
regulated group or a group of identifiable individuals is substantially affected by the proposed rule, or a recognized
association or organization that represents a significant portion of the affected class exists, notice must be given to
them under this requirement. While it is not necessary that every single person who may in some way be affected
by the proposed rule be personally contacted, where such individuals are represented by associations or
representatives such as unions that are likely to communicate the information to their respective memberships, this
suffices for notice to the individual members. For example, notice to the Florida Medical Association would be
considered notice to most physicians practicing in Florida.



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                (3) Alternatively, affected persons may be notified by publishing the notice in at least six major
newspapers of general circulation in varying parts of the state selected in such manner as to achieve the widest
coverage for the notice. Such publication would, of course, be in addition to the “official” publication in the Florida
Administrative Weekly.

                   (4) Mailing must occur at least 21 days before the scheduled public hearing date so that those
receiving it will have adequate notice of the public hearing and may prepare for and attend it should they care to do
so.

3-5. Public Hearing Requests.

        a. If any affected person requests a public hearing within 21 days after the date of publication of the Notice
of Proposed rulemaking, a public hearing must be held. Public hearings may be requested in more than one
geographic location. Any hearing held must be attended by program staff who actually have familiarity with the rule
and who can make decisions with regard to it.

       b. The agency may choose to hold a public hearing even if one has not been requested to permit the
rulemaking record to reflect that an opportunity for public comment was afforded by the agency.

3-6. Conducting the Public Hearing.

        a. The General Counsel is responsible for providing written instructions and training on how to conduct
public hearings. The requirements for the conduct of a public hearing are not always obvious and the General
Counsel should be consulted in case of questions.

        b. Presiding Officers are usually designated by the assistant secretary who has responsibility for the
program area promulgating the rule. Presiding Officers should be experienced in public speaking and should
understand the rudiments of conducting a meeting as well as the rulemaking process. A lawyer is not required but
may be advisable depending upon the complexity of the issues to be aired at the hearing and the availability of
other personnel with the requisite experience. After a hearing, the Presiding Officer must sign a summary of the
events which transpired at the public hearing which must include a summary of the testimony given, any documents
which were accepted at the hearing or as a result of it, and any agency response or change as a result of the
comments. The summary must be retained in the rule review file and in the rulemaking record. See Appendix L.

        c. If no hearing is held, the summary statement is prepared as shown in Appendix L simply indicating that
no hearing was requested and that none was held.

3-7. Public Comments and Material.

         a. Any material pertinent to the rule that is submitted to the agency within 21 days after the date of
publication of the notice or submitted at the public hearing must be considered by the agency and made a part of
the record of the rulemaking proceeding.

         b. The Presiding Officer may extend the period for accepting written public comments to a date announced
at the public hearing but a deadline for receiving and accepting any submissions not actually received at the public
hearing should be clearly stated. It should also be made clear to those attending and wishing to submit further
comment that if the desired submissions are not received by the deadline that they will not be considered. The
deadline must be recorded in the record of the proceedings and set out in the summary.

3-8. Changing or Withdrawing Proposed Rules. [s.120.54(3)(d), F.S.]

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         a. Procedures for changing a rule after the Notice of Proposed Rulemaking is published in the Florida
Administrative Weekly but before it is filed for adoption depend on whether the changes are substantive or
technical. Substantive changes modify the rule in a significant way so that the public or those regulated by the rule
will be affected differently than in the original version. Substantive changes can also involve changing a procedure,
changing the substance of what the agency wants to have happen as a result of the rule (for example, a different
means of compliance), changing requirements within a rule, or any change which will affect the public or those
regulated by the rule in a different manner than would have resulted from the original version of the rule. Technical
changes, on the other hand, are those which correct or change spelling, punctuation, grammar, phone numbers,
and similar non-substantive information. Technical changes may also include a renumbering of the rule without
altering its substantive content.

              (1) After the Notice of Proposed Rulemaking has been published, a proposed rule may only be
changed substantively based on:

                         (a) Comments received at public hearings; or,

                           (b) Written comments received on or before the date of the public hearing, at the public
hearing, or as a result of it; or,

                         (c) Comments or objections made by the Joint Administrative Procedures Committee; or,

                        (d) A final order declaring a part of or all of the rule invalid issued by an Administrative
Law Judge following an administrative hearing.

                (2) Any other changes will require at least republication of the Notice of Proposed Rulemaking and
perhaps withdrawal of the original version. For assistance in making this decision you are encouraged to consult
with the General Counsel.

         b. If substantive changes are made to a rule which are not so extensive as to require a withdrawal of the
original version and a republication of the entire rule, a Notice of Change must still be:

               (1) Published in the Florida Administrative Weekly at least 21 days before filing the final rule for
adoption. See 1S-1.003(6), F.A.C. and Appendix M for the proper format.

                 (2) Provided to any person who has requested it in writing, at least 21 days before filing for
adoption.

                 (3) Filed with the Joint Administrative Procedures Committee along with an explanation of the
reasons for the change(s).

       c. Technical changes may be made by listing the technical changes in a letter to the Bureau of
Administrative Code and the Joint Administrative Procedures Committee attorney who reviewed the rule.
Substantive changes may not be made in this informal manner.

       d. The Joint Administrative Procedures Committee must also be notified if no changes are made. That
communication must be made at least 7 days before the final version of the rule can be filed for adoption. (See
Appendix M.)



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         e. Substantive changes that are not supported by public hearing comments, timely submitted written
comments, or objections by the Joint Administrative Procedures Committee or otherwise described in paragraph 3-
8a can be made only by withdrawing the proposed rule and beginning the promulgation process again with a new
Notice of Proposed Rulemaking. It would be wise to consult with the General Counsel to be certain that this is
really necessary.

        f. A rule may be withdrawn in whole or in part at any time after the Notice of Proposed Rulemaking is
published and before it is filed for adoption.

        g. After a rule is filed for adoption, but before the effective date, it may be modified or withdrawn only:

                 (1) In response to a Joint Administrative Procedures Committee objection; or,

                (2) The rule may be modified to extend the effective date by not more than 60 days when Joint
Administrative Procedures Committee has notified the agency that it is considering an objection to the rule.

        h. If the rule is modified or withdrawn for either of the reasons stated in paragraph g above, a Notice must
be published in the first available issue of the Florida Administrative Weekly to advise any interested person and the
general public of the status of the rule. See Rules 1S-1.003(6) and (7), F.A.C. for the appropriate format.

       i. Once a rule has become effective, it may be repealed or amended only through the regular rulemaking
procedures.

3-9. Joint Administrative Procedures Committee Objections or Comments on Proposed Rules. Informal comments
and formal objections made by the Joint Administrative Procedures Committee are not the same. This paragraph
refers to a formal written objection from the Joint Administrative Procedures Committee and not to informal
conversations with, or comment letters from, Joint Administrative Procedures Committee staff. All comments from
the committee should be seriously considered especially when made in response to inquiries from the department.

         a. The role of the Joint Administrative Procedures Committee in the rulemaking process is set out in
s.120.545, F.S. It exercises legislative oversight over agency rulemaking and is charged with seeing to it that
agencies do not exceed the grant of rulemaking authority given to them by the legislature and to assure that the rule
complies with legislative intent for the statute from which the rule came. Its authority in rulemaking was recently
enhanced during the 1996 revisions to the Administrative Procedure Act and any comments or objections made to
proposed or existing rules should be responded to promptly. The program responsible for the rule commented
upon is also responsible for responding to the Joint Administrative Procedures Committee comments. Consultation
with the General Counsel is always required in formulating a response to formal objections from the committee.

         b. If the committee formally objects to a proposed rule, it must notify the department in writing and provide
an explanation of its objections. See s.120.545(2),F.S. If the reason for a received objection is not clear, informal
telephone contact by the department must be through the General Counsel even though the committee staff is
usually very cooperative in such matters. Within 30 days of receipt of the Joint Administrative Procedures
Committee objection, however, the department must:

                 (1) Modify the rule to meet the Joint Administrative Procedures Committee objections; or,

                 (2) Withdraw the entire rule; or,

                 (3) Refuse to modify or withdraw the rule.


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         c. If the agency decides to modify the proposed rule to meet committee objections, it must make the
appropriate changes needed and then resubmit the proposed rule to the committee. A Notice of Change must also
be published in the first available issue of the Florida Administrative Weekly to advise the public and any regulated
parties of the change made. (See Appendix M.)

         d. If the department decides to withdraw the proposed rule because of formal Joint Administrative
Procedures Committee objections, it must notify the committee in writing and publish a Notice of Withdrawal of the
rule or portion of the rule to which the formal objection is made in the next available issue of the Florida
Administrative Weekly.

        e. If the department refuses to modify or withdraw the rule, it must notify the Joint Administrative
Procedures Committee in writing. Since there are significant legal consequences to such an action, the General
Counsel should be involved in this decision and must approve it. Litigation is likely if this course is chosen. The
Joint Administrative Procedures Committee will file a notice of our response to its formal objection with the Bureau
of Administrative Code, which will publish notice in the Florida Administrative Weekly.

         f. If the agency does not promptly respond to Joint Administrative Procedures Committee formal objections
within 30 days, s.120.545(8)and(9), F.S. provide that this failure to respond constitutes “a demonstrated intent to
withdraw the proposed rule.” The Committee will then notify the Bureau of Administrative Code, which must publish
notice of the presumed withdrawal in the next available Florida Administrative Weekly. Upon publication the
proposed rule must be stricken from the Department of State’s files and the agency’s files. Therefore, the
importance of responding to the committee’s formal objections cannot be overemphasized.

3-10. Informal Comments From Joint Administrative Procedures Committee.

        a. Historically, the formal objections from the Joint Administrative Procedures Committee discussed in
paragraph 3-9 above are infrequent. It is far more likely that you will receive a memorandum or letter from a Joint
Administrative Procedures Committee staff attorney making rather informal comments about your rule. When these
are received they should be approached with the same degree of seriousness as the more formal objections, but
the consequences are seldom so severe.

         b. The comments must be addressed, but informal negotiating and discussion with the Joint Administrative
Procedures Committee attorney usually can resolve most if not all differences which arise from such comments. It
is only when serious differences are raised and both sides have reached impasse that one might see a formal
objection by Joint Administrative Procedures Committee. In such cases, litigation is likely and the General Counsel
should have become involved long before that occurs. Here, too, the General Counsel is available for advice and
consultation throughout the process of responding and negotiating with the committee.

        c. Once these informal comments are addressed and agreement has been reached, the changes must be
reviewed to determine whether they are substantive or technical and a Notice of Change may be required as
described above.

3-11. Rule Challenges. The statutory basis for rule challenges is found in s.120.56, F.S.

         a. Any substantially affected party may seek an administrative determination of the validity of a proposed
rule by filing a petition challenging the rule with the Division of Administrative Hearings. Such a challenge should be
considered as part of the process of refining the rule and not necessarily as a negative experience. Often the
agency will learn of an unintended consequence or a more efficient way to do the same thing through the rule
challenge process, both of which result in a better product for the public. The General Counsel, or your District


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Legal Counsel, will assist you throughout the rule challenge hearing process and should be advised as soon as you
learn that a challenge is either anticipated or that one has been filed.

           b. Unlike the more usual administrative hearing where the agency receives a Recommended Order which
it may accept or reject, in a rule challenge proceeding the Administrative Law Judge’s ruling is final. Hearings in a
rule challenge are conducted under very short deadlines and it is important to notify the General Counsel as soon
as possible. The process involves not only an evidentiary hearing before the Administrative Law Judge but the
filing of legal memoranda and other pleadings by the attorney who is assisting you. At the conclusion of the hearing
the resulting Order will be sent to the department. Unlike a bid protest where everything must stop while the protest
is resolved, when a rule challenge is filed, the agency may proceed to complete all the formalities of the rule
adoption process but simply may not file the proposed rule for adoption until the Administrative Law Judge has
rendered a final order. Such orders are usually subject to review only by the District Court of Appeal.

         c. If declared invalid by the Administrative Law Judge, the proposed rule or any invalid portion of it, must
be withdrawn. The agency must publish a notice of the decision in the first available issue of the Florida
Administrative Weekly. The basic issue to be decided in a rule challenge proceeding is whether or not the agency
has exceeded or departed from the legislative delegation of rulemaking authority or the legislative intent upon which
the delegation is founded. Here, too, the General Counsel, or the District Legal Counsel, will assist you should your
rule be declared invalid.




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                                                        Chapter 4

                                  FINAL RULE REVIEW, SIGNATURE AND FILING

4-1. Purpose.

        a. This chapter provides information on preparing the final review file documents, the final rule review
process, procedures for obtaining final approval and signature, and filing the rule for adoption with the Bureau of
Administrative Code.

        b. If a Notice of Change has been published in the Florida Administrative Weekly, you must wait at least 21
days from the date of publication to file the final rule. If no change has been made in the rule, or if the only changes
made are technical changes, the 1996 revisions to the Administrative Procedure Act require a Notice of No Change
to be delivered to the Joint Administrative Procedures Committee at least 7 days before the rule is filed for adoption.
See s.120.54(3)(d)1, F.S. for the statutory provisions that control these deadlines. The originating office is
responsible for making certain that these deadlines have been met before filing a rule for adoption.

4-2. Joint Administrative Procedures Committee Certification. In addition to the reasons discussed earlier for
promptly responding to informal comments or to formal objections from the committee, the 1996 revisions to the
Administrative Procedure Act require the Joint Administrative Procedures Committee to certify whether or not the
agency has timely responded in writing to all material and written inquiries made by or on behalf of the committee.
See s.120.54(3)(e)4, F.S. This certification is required to be made at the time a rule is filed for adoption. The
committee will file its certification directly with the Bureau Of Administrative Code but you must assure that it arrives
on a timely basis. Nevertheless, several days (2-3) before you expect to file the rule for adoption, call the Joint
Administrative Procedures Committee attorney who reviewed your rule to request that the certification be prepared.
Although the committee will deliver the certification directly to the Bureau of Administrative Code by your anticipated
filing date, it would be appropriate to confirm its arrival before taking the final rule package to the bureau.

4-3. Final Rule File Documents List - The documents listed below must be included in the folder for final review
within the department and approval by the secretary. The starred (*) items are those which will be filed with the
final rule that goes to the Bureau of Administrative Code for adoption and for publication in the loose leaf binders of
the Florida Administrative Code (red books). The other documents are needed for final internal review and the
secretary’s review and signature. A more detailed discussion of these documents will be found in paragraph 4-4.

        a. Cover memorandum to the secretary.

        b.* Certification for the rule (original and 2 copies).

        c.* Statement of Facts and Circumstances justifying the rule.

        d.* Summary of the rule.

        e. Statement of Estimated Regulatory Cost (if prepared).

        f. Federal Comparison Statement.

        g.* Summary of each public hearing held.

        h. Notice of Change, or Statement of No Change.


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        i.* Final rule text (3 certified copies).

        j.* Materials incorporated by reference and certification of those materials.

        k. A copy of any comments received from Joint Administrative Procedures Committee and a written
explanation of how they have been addressed.

        l. Review forms previously signed by reviewing officials within the agency.

        m. Notice of proposed rulemaking.

        n. Staff summary form (with all questions answered).

4-4. Preparing Additional Final Rule File Documents. This paragraph provides additional detail concerning those
documents that were not already prepared earlier in the rulemaking process.

        a. Cover Memo.

                 (1) This memorandum, addressed to the secretary, must be signed by the originating program’s
assistant secretary. It contains a brief summary of the purpose of the rule (what it does), background information
on why it is necessary, an assurance that there is no administrative determination (rule challenge proceeding)
pending on the rule, and a formal recommendation that the rule be adopted. The content must be specific and
prepared in the format found in Appendix N.

                  (2) The responsibility of the secretary in the rulemaking process has been enhanced by the recent
amendments to Chapter 120, F.S. and care must be taken to assure a complete understanding by the Secretary
not only of the proposed rule but of the authority upon which it is based. The secretary must also be made aware of
any less restrictive alternatives that were proposed but not adopted and the reasons for not adopting them. This
memorandum is an appropriate place to do that.

        b. Certification.

                 (1) The required format and content for rule certification is prescribed by the Secretary of State in
Rule 1S-1.002(7)(a), F.A.C. If more than one rule chapter is being promulgated, a separate certification is required
for each chapter. Emergency rules require a special certification and the required format and content are provided
in Rule 1S-1.002(7)(b), F.A.C. The format and style of these certifications should be used without alteration. Be
aware, however, that even the rules promulgated by the Secretary of State may change from time to time and care
should be taken to assure that the latest version of the form is used. If your office does not have access to a
current copy of the Florida Administrative Code, the office of the General Counsel has a library copy and will be
glad to help you find the current provision. It is the originating office’s responsibility, however, to assure that they
are complying with the current rule.

                 (2) The current rule requires that the department certify that the deadlines set out in Chapter 120,
F.S. have been observed. For example, rules must be filed for adoption within 90 days of the original Notice of
Proposed Rulemaking unless that time has been extended by some extraordinary event such as a rule challenge or
an associated rule challenge hearing. If more than 90 days has elapsed, the rule must start through the process
again, from the beginning.

                 (3) The department must certify that there is no rule challenge pending at the time of filing for
adoption. Certification must also be made that the department has complied with all of the rulemaking requirements

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of Chapter 120, F.S. The Department of State, Bureau of Administrative Code, has no authority to accept, and is
charged by the legislature to reject, any rule which has not complied with these requirements or which has not
complied with the 90 day requirement discussed above. See s.120.54(3)(e), F.S. for additional details concerning
certification of proposed rules.

         c. A Public Hearing Summary must be prepared and signed by the Presiding Officer. If more than one
public hearing was required each must be summarized and signed by the Presiding Officer assigned to that
hearing. Such information as the time, date, and location of each public hearing, the number and names of the staff
who attended, the name of the Presiding Officer, the nature of the discussion which occurred, the documents, if
any, which were presented to be included within the record, and any other information which would assist the
reader in understanding the nature and extent of the comments which were received should be included in this
summary. This summary should not be a verbatim transcript of the proceedings even though one may be part of
the rule promulgation file at the program office.

                  (1) The summary must include at least the following information:

                          (a) Date, time, and place of the hearing.

                          (b) Names of those attending including agency staff.

                          (c) Nature of the comments received.

                          (d) Changes proposed or made based on comments received at or as a result of the
public hearing.

                (2) When no public hearing is held, the summary of the hearing should include the following
statement: “No timely request for a public hearing was received by the agency and, therefore, no public hearing
was held.” OR “Although a public hearing was scheduled on (date and time), no member of the public attended and
no comments were received.”

        d. Final Rule Text.

                (1) The final rule text is prepared as described in Rule 1S-1.002, F.A.C., incorporating changes
made to the original as the result of the Joint Administrative Procedures Committee review, public hearing, and
written comments received following publication of the Notice of Proposed Rulemaking.

                 (2) Prepare a heading for the rule text that includes the department name, program name and rule
title. See the example in Appendix H for format. All rule pages must be numbered including the first page.

                  (3) If the effective date of the rule will be later than 20 days after being filed, the effective date
must be stated immediately following the final section of the rule, preceded by “PROPOSED EFFECTIVE DATE: . .
. ,” and on the certification page.

         e. Materials incorporated by reference must be accompanied by a separate certification page. A copy of
the material which is to be incorporated within the rule by reference must be attached. Care must be taken to be
certain that the material incorporated is definite and is in effect at the time of incorporation. Proposed federal
regulations, for example, cannot be incorporated by reference until they have actually become part of the Code of
Federal Regulations. Further, any material which may have been revised or which is subject to revision should be
attached in only its most recent form. See Appendix K for the format for certifying the incorporated material.


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                  (1) Section 120.54(6), F.S. contains special provisions relating to the incorporation of federal
standards within department rules. Where the rule merely adopts federal standards, a simplified rulemaking
procedure is prescribed. A special “Notice of Intent to Adopt Federal Standards” must be published and provided to
the Joint Administrative Procedures Committee at least 21 days before filing for adoption. The department must
consider any comments it receives within 14 days of publication of this Notice and any substantive changes made
require that the Notice of Intent to Adopt Federal Standards be republished. Rules promulgated under this section
are effective upon filing with the Secretary of State unless a later time is provided within the rule or unless the
effective date of the federal standards is later than the filing date. In that case, the effective date is the date the
federal standards become effective through the federal process for creating regulations or law.

               (2) If a challenge is filed to a rule whose sole purpose is to adopt a federal standard and which is
promulgated under the process just described, it is presumed to be a frivolous action.

                  (3) Caution should be observed in adopting federal standards into state administrative rules as the
state rules do not automatically get updated when the federal government changes the incorporated provisions.
Rules adopted using this shortened procedure are not deemed amended until the rule which adopted them is
amended. Nor will inactivity suffice. The rule containing the federal standards by incorporation, will be deemed
repealed if the federal standard is changed and the Florida rule is not amended to reflect that change within 180
days of the date of the federal change.

        f. The Staff Summary form provides summary information for final review and signature by the secretary.
The required information for the summary is listed in Appendix O. All questions on the form must be answered.
The information required should be self explanatory.

4-5. Assembling the Final Rule File. (This section was prepared by Executive Staff to allow them to expect some
uniformity in the packages they receive.)

        a. Place the following documents on the right inside the file folder in the order listed below. Include only
one original for each; copies for the filing package are made after signature.

                 (1) Cover memorandum to the secretary.

                 (2) Certification for the rule.

                 (3) Statement of Facts And Circumstances.

                 (4) Summary of the rule.

                 (5) Statement of Estimated Regulatory Cost (if prepared).

                 (6) Federal Comparison Statement.

                 (7) Notice Of Change Or Statement Of No Change.

                 (8) Public Hearing Summary.

                 (9) Rule text.

                 (10) Certification Of Materials Incorporated By Reference (if any), with copies of materials
attached.

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               (11) All of the above on a 3 1/2 inch disc for use by the General Counsel, clearly labeled with the
rule number and the words, “Final Version For Filing” and the date.

        b. Place the following documents on the left inside the file folder in the order listed:

               (1) Comments received from Joint Administrative Procedures Committee and an explanation of
how they have been addressed.

                 (2) Review forms signed by all reviewing officials.

                 (3) Notice Of Proposed Rulemaking.

        c. Staple the Staff Summary form to the front of the file folder.

4-6. Final Rule Review Procedures. The originating office is responsible for, and must monitor, the progress of the
rule through the final review process to ensure approval, signature and filing within the required time limits. The
following tasks must be accomplished in the following order before filing a proposed rule for adoption with the
Secretary of State, Bureau of Administrative Code.

         a. Assistant Secretary’s Final Review. The assistant secretary for the originating office must review and
approve the final rule by signing and dating the cover memorandum to the secretary and the staff summary form on
the front of the file. Before requesting your assistant secretary’s signature on the cover memo, check with the
General Counsel to assure that no administrative determination is pending on the proposed rule.

         b. General Counsel Final Review. Once the assistant secretary has approved the final version of the
proposed rule, the rule file is forwarded to the General Counsel for approval of the content and format of the rule
and other documents. The General Counsel will also recheck the history notes to determine whether there is still
sufficient authority for the rule where it has been changed from its original form, and whether the specific
rulemaking authority and law implemented citations are appropriate. If approved, the General Counsel will also sign
the staff summary form. The General Counsel requires no less than 5 days within which to do this final review and
more where possible.

         c. Secretary’s Signature. The file must then be submitted to the Office of the Secretary for review and the
secretary’s signature no less than five working days (required by Executive Staff) before the filing deadline. The
secretary will sign only one original. After signature, the rule file will be returned to the originating office for copying
and for filing with the Bureau of Administrative Code for final adoption.

4-7. Filing the Final Rule for Adoption.

         a. The originating office will file the rule for adoption by delivering the original and three copies of the
following documents to the Bureau of Administrative Code:

                 (1) Statement of Facts and Circumstances.

                 (2) Summary of the Rule.

                 (3) Summary of Public Hearing.

                 (4) Certification form for the rule.

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                 (5) Rule Text with History Notes.

                 (6) Certification of Materials Incorporated by Reference (if any).

                 (7) Copies of materials incorporated by reference.

          b. The Bureau of Administrative Code will time stamp one copy of the rule to signify that they have
received it and to document that event for the agency filing the rule. The originating program must photocopy that
stamped copy, and provide a copy showing the time stamp to the General Counsel. The time stamp must be
legible. The time stamped copy is the only evidence that the rule has been filed for adoption and that the 20 day
wait for it to become effective has begun.

        c. The Bureau of Administrative Code will retain the original and two copies. One copy is to be maintained
by the originating office.

        d. Once filed, the originating office must send a copy of the rule and certification page to the director of any
other programs affected by the rule, to each district administrator, to each district legal counsel, and to anyone else
who has requested a copy of the final rule.

        e. Beginning July 15, 1997, the General Counsel will keep time stamped copies of all agency rules.




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                                                       Chapter 5

                                                EMERGENCY RULES

5-1. Purpose. This chapter provides assistance in preparing and filing emergency rules.

5-2. References. You should be familiar with section 120.54(4), F.S., and Rules 1S-1.002(7)(b) and (8)(d), F.A.C.,
before preparing an emergency rule. Chapter 28-103, F.A.C. is also important and should be consulted. As
mentioned throughout this operating procedure, however, both statutes and the rules are subject to change from
time to time. Care should be taken to read the most current version of these authorities before proceeding with the
promulgation of any emergency rule.

5-3. General Information. Emergency rules can be promulgated only when the agency has made a written finding
that an immediate danger to the public health, safety, or welfare requires emergency or immediate action. Even
then, the agency may take only such action through the emergency rule as is necessary to meet the immediate
emergency referred to in the written finding. The conditions set out in s.120.54(4), F.S. must be met.

         a. Emergency rules can be promulgated as new rules, as rule amendments, or as the repeal of old rules or
parts of old rules. Procedural rules which address emergencies, although rare, may be promulgated as long as
traditional notions of due process are considered. See s.120.54(4)(a), F.S.

        b. Emergency rules may be promulgated concerning a matter of procedure as long as the procedure
adopted allows at least minimum due process rights. These include notice of the procedure and its effect, and an
opportunity to be heard. The statutory conditions of Section 120.54(4), F.S. must still be met in determining that an
emergency exists and the agency must prepare a written finding that the emergency addressed actually exists.
That written finding by the agency is subject to judicial review.

           c. Emergency rules become effective immediately upon filing. While a rule promulgated during the non-
emergency rulemaking process is not effective for at least 20 days after filing with the Secretary of State, an
emergency rule is effective immediately. If a short delay is desired, and if set out specifically in the emergency rule
itself, it may be effective upon a date after the date of filing but before the usual 20 day period. There should not be
an occasion in which the emergency rule would become effective through the specification of a specific effective
date which is longer than 20 days after filing but that appears to be possible under the present wording of the law.

         d. Once filed for adoption, emergency rules are only effective for a maximum of 90 days and are not
renewable. As with a regular rule, that 90 day period may be enlarged by the amount of time necessary to
conclude any challenge to the emergency rule. The maximum length of time during which a regular non-emergency
rule must be filed for adoption after a Notice of Proposed Rulemaking has been filed is also 90 days. Therefore,
when the department simultaneously notices an emergency rule and an identical “regular rule” using the regular
rulemaking process, the effect of the simultaneous filing is to allow the permanent rule to become effective within 90
days. Therefore, the emergency rule and the “regular” rule will be seamless and no hiatus will occur. Hence, in all
but the most unusual case, promulgation of any emergency rule should be accompanied by a permanent version of
the rule which will follow the usual rulemaking track. The regular rule will become effective within 90 days and
therefore will become effective while the emergency rule is still in effect.

5-4. Emergency Rule Process Outline. The following is a brief outline of the emergency rulemaking process:

        a. Prepare a written justification of the need for an emergency rule in writing for signature by the Secretary.

        b. Obtain review and approval from your assistant secretary.

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           c. Obtain approval to draft an emergency rule from the General Counsel.

           d. Obtain an emergency rule number from the Bureau of Administrative Code.

           e. If the emergency rule is a procedural rule, publish notice as required by s.120.54(4)(a)1 through 3, F.S.

         f. Submit to the General Counsel the rule text for review and approval. The General Counsel will forward
the rule file to the Secretary for signature.

       g. Pick up the signed and approved file at the Secretary’s office and file with the Bureau of Administrative
Code. A copy of the emergency rule must be sent to the Joint Administrative Procedures Committee.

       h. The reasons for the finding of an immediate danger to the public health, safety, or welfare and the text of
the emergency rule must be published in the next available Florida Administrative Weekly.

5-5. Emergency Rule Documents List. The following documents must be prepared for emergency rules:

           a. A Notice of Emergency Rulemaking.

           b. A cover memo to the Bureau of Administrative Code for Florida Administrative Weekly publication.

           c. A Certification form for emergency rules.

           d. A copy of the written finding of the existence of an immediate danger to the public health, safety, or
welfare.

         e. If the emergency rule is procedural, a written statement of the reasons why the emergency procedure is
fair under the circumstances.

           f. The emergency rule text.

           g. The Staff Summary form.

           h. All of the above on a 3 1/2 inch disk.

5-6. Preparing Emergency Rule Documents. Each document needed is further discussed here with references and
brief content and format instructions. You must be familiar with rule and statutory provisions which pertain to
emergency rulemaking in order to produce a viable rule under the very short deadlines.

         a. Notice of Emergency Rulemaking. See Rule 1S-1.003(8), F.A.C. The notice must be typed on letter
size paper, double spaced, with one of the type styles specified in Rule 1S-1.003(2)(a)(3), F.A.C. Margins of at
least one inch must be left at the top, bottom and each side. Obtain a purchase order number to be included at the
end of the Notice of Emergency Rulemaking for proper billing and payment of the charges for Florida Administrative
Weekly publication.

        b. A Cover Memo for Florida Administrative Weekly publication is required by Rule 1S-1.003(3), F.A.C.
The memorandum must contain: (Note: The Bureau of Administrative Code will supply a sample cover
memorandum upon request which should contain all of their up-to-date requirements. Simply call if one is not
already available to you and request it.)

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                 (1) The name and address of the person to whom the Florida Administrative Weekly billing should
be sent; and,

               (2) The department’s name and the title of its administrative rules (presently the Department of
Children and Family Services has been assigned Title 65 by the Department of State); and,

                 (3) The type of Notice (Notice of Emergency Rulemaking; Notice of Proposed Rulemaking; Notice
of Withdrawal of Obsolete Rules; or other descriptive title of the Notice; for emergency rules, the “Notice of
Emergency Rulemaking” would be used); and,

                 (4) The file names on the disk which accompanies the hard copy and a description of the file
contents; and,

                 (5) The requested publication date.

        c. Certification Form for Emergency Rules. The format and language for this form, which must be used
without modification, is reprinted in Appendix Q. The form, required by Rule 1S-1.002(7)(b), F.A.C. must be printed
or typed on letter-size paper, double spaced.

         d. Statement of Facts and Reasons for finding an immediate danger to the public health, safety or welfare.
Two separate statements are required but may be typed on the same page, double-spaced. These statements are
included in the Florida Administrative Weekly notice and are also required to be filed for publication in the F.A.C.
with the emergency rule text and certification. Include a heading at the top of the statements with the department’s
name, program name, rule title and number. See Rule 1S-1.002(8)(d), F.A.C. The required statements are:

                 (1) A statement of the specific facts and reasons for finding an immediate danger to the public
health, safety and welfare.

                (2) Where the emergency rule is limited to a procedural matter, a statement of the agency’s
reasons for concluding that the procedure used is fair under the circumstances.

        e. Emergency Rule Text.

                 (1) An emergency rule may be a new rule, an amendment, to a rule, or a repeal of an existing rule.
The text format is the same as for non-emergency rules.

              (2) Include a heading for the text containing the department’s name, program name, rule title and
number. Each rule page must be numbered sequentially starting with the first page. See Rule 1S-1.002(4), F.A.C.

                   (3) If the effective date of an emergency rule is other than “This rule shall become effective
immediately upon filing”, the effective date must be stated immediately following the final section of the rule. The
actual date upon which the rule is to be effective, in this case, must be preceded by “PROPOSED EFFECTIVE
DATE:_______” with the blank filled in with the desired effective date. The effective date must also be stated on
the certification form.

         f. Staff Summary Form. (See Appendix O.) Not all questions on the staff summary example apply to
emergency rules. Provide answers only to the relevant questions. If in doubt, the General Counsel is available to
help in determining which of these can be omitted.


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5-7. Assembling the Emergency Rule Review File. (This section was prepared by Executive Staff.) Documents
should be assembled in the review file as follows:

         a. Staple the staff summary form to the front of the folder for routing and sign-off by reviewers.

       b. Place the Notice of Emergency Rulemaking which you have prepared for publication in the Florida
Administrative Weekly and the cover memo on the left inside the folder.

         c. Place all other documents on the right inside the folder, in the following order:

                 (1) Certification.

              (2) Statement of the facts and reasons for determination of an emergency, or statement of
reasons why emergency process is fair (if the emergency rule being promulgated is procedural).

                 (3) Text of the rule.

                 (4) All of the documents in paragraphs 5-7b and c on a 3 1/2 inch disk, labeled as described
above.

5-8. Emergency Rule Review Process. Of necessity, the review procedure for an emergency rule is significantly
more abbreviated than that used for the usual rulemaking process. The General Counsel must approve the
decision that the agency policy must be accomplished through the emergency rulemaking process and is the least
intrusive means possible at the outset. The assistant secretary in charge of the program area must also approve
the use of this extraordinary procedure. With those initial approvals secured, drafting the emergency rule may
proceed. When the drafting is done, route the rule for review and final approval to:

         a. Your assistant secretary.

       b. The General Counsel will again review to assure that the emergency still exists and that the emergency
rulemaking procedure is still justified, and will now review the draft of the rule.

        c. If all has gone well to this point, the rule will be taken to the secretary for signature. The secretary signs
only one original certification form. Needed copies are made after the signature is affixed.

5-9. Filing Emergency Rules. Make at least three copies of the original rule including the notice, certification form,
statements and rule text.

       a. Take the original and three copies to the Bureau of Administrative Code with the cover memo. The
Bureau of Administrative Code will time-stamp the original and keep the original and one copy.

       b. When filed, you must make a copy of the time stamped papers for the General Counsel. The General
Counsel will retain one photocopy of the time stamped copy and the computer disk. Please note - the time stamp
must be legible on the General Counsel’s copy. Retain one copy for the originating office’s file.

         c. Send a copy of the emergency rule and certification page to the director of all programs affected by the
rule, each district administrator and each district legal counsel.




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                        5-5
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                                                      Chapter 6

                                  ADDITIONAL RULEMAKING REQUIREMENTS

6-1. Writing Style. It cannot be emphasized often enough that unless a rule is written in plain understandable
English it will likely not serve the desired purpose. Badly drafted rules are less than useful The legislature has
required that rules be written in a manner which eliminates unnecessary or complicated sentences, and that rules
do not use words understood only by those in a particular trade or profession. See s.120.54(2)(b), F.S. The use of
such phrases as “and/or” or “including but not limited to” are simply unacceptable and may not be used. Unless the
first time reader can understand the meaning of the rule, it should be redrafted and simplified in most cases.

6-2. One Rule - One Subject. Since rules must be indexed and available to the public, and since public awareness
of rule provisions is one of the best ways to assure voluntary compliance, the legislature has adopted the principle
used in creating legislation for our use in rulemaking. Only a single subject may be addressed in a rule. See
s.120.54(1)(g), F.S. Therefore no rule should be drafted which violates this precept.

6-3. Immediate Need to Write Rules. Whenever legislation gives rise to the need for rulemaking the needed rules
must be promulgated within 180 days of the effective date of the legislation from which they are derived. If we do
not complete the rulemaking within 180 days sanctions may apply and the department will needlessly be subjected
to rule challenges. You should plan to write and adopt all rules on a timely basis.

6-4. Negotiated Rulemaking. The legislature has created a new rulemaking procedure which may be used where
the contemplated rules are either controversial or are expected to generate a considerable amount of resistance
from those who are about to be regulated. In negotiated rulemaking, the agency must decide whether it can select
a panel of interested persons who can successfully negotiate the needed rules among the various interests
including the regulators and the regulated parties. The department must also decide whether it would support not
only the panel’s efforts but the resulting rule as well. The negotiating process can be applied to both rule
development and rule drafting but because it is a very new one, and because it has significant effects upon
department policies overall, the General Counsel should be involved in the determination of whether or not to use
this procedure. See also s.120.54(2)(c) and (d), F.S. If used, a Notice of Negotiated Rulemaking must be provided
in the Florida Administrative Weekly, and each meeting must be properly noticed as a public meeting pursuant to
s.286.011, F.S.

6-5. Mediation In Rulemaking. Mediators or facilitators for rulemaking workshops are now tools provided by the
legislature in Chapter 120 rulemaking. Section 120.54(2)(c), F.S. allows the use of alternative dispute resolution
techniques to eliminate significant differences in how a rule should be written, how a statute should be enforced or
interpreted, or in any of the other important aspects of rulemaking. Their use, although not expected to be
universal, may prove useful over time.

6-6. Impact of Rulemaking. The impact of a proposed rule upon small businesses, small cities, and small counties
must be considered in doing any rule promulgation. If a disparate impact is found upon these specially protected
entities, the agency must consider offering relief in the form of tiering the rules to require some modified compliance
which will more closely level the playing field.

        a. An agency can:

                 (1) Establish less stringent reporting requirements; or,

                 (2) Adjust deadlines for compliance and reporting; or,


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                (3) Simplify compliance or reporting requirements; or,

                (4) Establish alternative requirements; or,

                (5) Consider exemptions or partial exemptions from the operation of the rule.

         b. These alternatives are provided in s.120.54(3)(b)(2) et. seq., F.S. but are not exclusive. Creative
rulemaking to remedy an inadvertent disparate burden will probably be recognized by the courts even though there
may still be some “equal protection” constitutional concerns over requiring one person to comply with a rule while
allowing partial forgiveness to another. Here, too, the General Counsel is available for consultation in this new
area.

         c. Where the effect of a rule will be greater on small businesses than upon others, the department must
send Notice of the rule to the Small Business Ombudsman of the Department of Commerce. The Ombudsman may
propose alternatives to the department rule and if it does so the department is obligated to adopt those alternatives
which are found by the department to be feasible and consistent with the stated purpose of the rule. If the
department refuses to adopt the alternatives submitted by the Ombudsman, the department must justify its refusal
in writing to the Joint Administrative Procedures Committee with a copy to the Ombudsman. [s.120.54(3)(c), F.S.]

6-7. Incorporation By Reference. Materials may be incorporated within rules by making reference to them as
discussed in an earlier chapter. Some special considerations apply, however. For example, the material
incorporated must be generally available to persons affected by the rule. Generally, material incorporated by
reference should be published by a governmental agency, a generally recognized trade or professional
organization, or otherwise be from sources recognized by most to be authoritative and accurate. The material
incorporated by reference must be updated through a rule amendment and is not automatically changed just
because the original source modifies the original material.

6-8. The Rulemaking Record. In all rulemaking proceedings the department is required to keep a rulemaking
record which is available for review by the public upon demand.

        a. The record must, at a minimum, include the following:

                (1) All Notices given with regard to the rule.

                (2) Any statement of the regulatory costs associated with the rule if one is prepared.

                (3) A written summary of any hearings held on the rule.

                (4) Any comments received with regard to the rule and the department’s response to those
comments.

                (5) Any Notices and Findings made with regard to the promulgation of an emergency rule.

                (6) Copies of any filings with the Joint Administrative Procedures Committee.

                (7) All written comments made by the Senate or House committees and responses made by the
department to those comments.

                (8) Copies of all filings with the Department of State.


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         b. The Rulemaking Record must be retained as long as the rule is effective. Should the rule no longer be
viable the rulemaking record must be retained until permission to destroy the record has been requested from and
granted by the Department of State, Bureau of Archives and Records Management, in accordance with the
applicable records retention schedule.

6-9. Variances and Waivers. Any affected party can request a variance or a waiver of a rule provision upon
showing that application of the rule as drafted or as adopted would create a substantial hardship upon that person
and that the purpose of the rule would be served by an alternative means of compliance. If generally accepted
principles of fair play are violated by requiring strict conformity to the rule as adopted then variance or waiver should
be considered.

          a. Section 120.542, F.S. defines substantial hardship as a demonstrated economic, technological, legal or
other type of hardship which would not be suffered by others similarly situated. If any inquiry is made with regard to
relief from the operation of a rule the department is bound to disclose the information as to how a waiver or a
variance may be obtained.

         b. Although the Uniform Rules address waiver and variance the provisions are not detailed and each
department presumably will be required to adopt, as rules, any further refinement of the procedure the affected
party must use in obtaining either a variance or a waiver. Section 120.542(3), F.S. provides that a request for a
variance or a waiver is initiated by the filing of a Petition requesting one or the other from the department by filing
with the department clerk. The Petition must specify at least the following:

                 (1) The rule from which the waiver or variance is requested.

                 (2) The type of agency action requested.

                 (3) The specific facts which the Petitioner believes justifies the granting of a variance or waiver.

                 (4) The reason or reasons why the requested action would serve the purpose of the underlying
statute.

         c. The Petition must be copied and sent to the Department of State for publication in the Florida
Administrative Weekly within 5 days of receipt. A decision on the Petition must be made by the department within
90 days of receipt and an administrative order must set out the reasons for the action taken. If the decision is to
deny the requested action an appeal to the Division of Administrative Hearings must be offered to the Petitioner.
See s.120.541(6) and (7), F.S. The department must also keep a record of all requests and their disposition which
is available to the public for inspection at any time. If such a Petition is received the Office of the General Counsel
must be notified at once.

BY DIRECTION OF THE SECRETARY:




SAMARA H. NAVARRO
Deputy Secretary




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                        SUMMARY OF REVISED, ADDED, OR DELETED MATERIAL

This operating procedure reflects the most current requirements for promulgating administrative rules.




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                                             CHAPTER 120
                                     ADMINISTRATIVE PROCEDURE ACT

 120.50         Exception to application of chapter.
 120.51         Short title.
 120.52         Definitions.
 120.525        Meetings, hearings, and workshops.
 120.53         Maintenance of orders; indexing; listing; organizational Information.
 120.532        Agency orders and indexes, preservation.
 120.533        Coordination of indexing by Department of State.
 120.535        Rulemaking required.
 120.536        Rulemaking authority; listing of rules exceeding authority; repeal; challenge.
 120.54         Rulemaking.
 120.541        Statement of estimated regulatory costs.
 120.542        Variances and waivers.
 120.543        Adoption of federal standards.
 120.545        Committee review of agency rules.
 120.55         Publication.
 120.56         Challenges to rules.
 120.565        Declaratory statement by agencies.
 120.569        Decisions which affect substantial interests.
 120.57         Decisions which affect substantial interests.
 120.573        Mediation of disputes.
 120.574        Summary hearing.
 120.575        Taxpayer contest proceedings.
 120.58         Agency action; evidence, record and subpoenas.
 120.59         Orders.
 120.595        Attorney's fees.
 120.60         Licensing.
 120.61         Official recognition.
 120.62         Agency investigations.
 120.63         Exemption from act.
 120.633        Division of Pari-mutuel Wagering; partial exemption from hearing and notice requirements.
 120.65         Administrative law judges.
 120.655        Withholding funds to pay for administrative law judge services to school boards.
 120.66         Ex parte communications.
 120.665        Disqualification of agency personnel.
 120.68         Judicial review.
 120.69         Enforcement of agency action.
 120.695        Notice of noncompliance.
 120.70         Annual report.
 120.71         Disqualification of agency personnel.
 120.72         Legislative intent; references to chapter 120 or portions thereof.
 120.721        Effect of ch. 75-22 on rules.
 120.722        Legislative intent of ch. 78-95.
 120.73         Circuit court proceedings; declaratory judgments.
 120.74         Agency review, revision, and report.
 120.80         Exceptions and special requirements; agencies.
 120.81         Exceptions and special requirements; general areas.




                                                                                       Appendix A to CFOP 30-1
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 120.50 Exception to application of chapter.--
   This chapter shall not apply to:
  (1) The Legislature.
  (2) The courts.
 History.--
  s. 1, ch. 74-310; s. 3, ch. 77-468; s. 1, ch. 78-162.

 120.51 Short title.--
   This chapter may be known and cited as the "Administrative Procedure Act."
 History.--
  s. 1, ch. 74-310.

  120.52 Definitions.--
As used in this act:
 (1) "Agency" means:
   (a) The Governor in the exercise of all executive powers other than those derived from the constitution.
   (b) Each state officer and state department, departmental unit described in s. 20.04, commission, regional planning agency,
board, multicounty special district with a majority of its governing board comprised of nonelected persons, and authority,
including, but not limited to, the Commission on Ethics and the Game and Fresh Water Fish Commission when acting
pursuant to statutory authority derived from the Legislature, and those entities described in chapters 163, 298, 373, 380, and
582 and s. 186.504, except any legal entity or agency created in whole or in part pursuant to chapter 361, part II, an
expressway authority pursuant to chapter 348, or any legal or administrative entity created by an interlocal agreement
pursuant to s. 163.01(7), unless any party to such agreement is otherwise an agency as defined in this *1 subsection.
  (c) Each other unit of government in the state, including counties and municipalities, to the extent they are expressly made
subject to this act by general or special law or existing judicial decisions.
 (2) "Agency action" means the whole or part of a rule or order, or the equivalent, or the denial of a petition to adopt a rule or
issue an order. The term also includes any denial of a request made under s. 120.54(7).
 (3) "Agency head" means the person or collegial body in a department or other governmental unit statutorily responsible for
final agency action.
 (4) "Committee" means the Administrative Procedures Committee.
 (5) "Division" means the Division of Administrative Hearings.
 (6) "Educational unit" means a local school district, a community college district, the Florida School for the Deaf and the
Blind, or a unit of the State University System other than the Board of Regents.
 (7) "Final order" means a written final decision which results from a proceeding under s. 120.56, s. 120.565, s. 120.569, s.
120.57, s. 120.573, or s. 120.574 which is not a rule, and which is not excepted from the definition of a rule, and which has
been filed with the agency clerk, and includes final agency actions which are affirmative, negative, injunctive, or declaratory
in form. A final order includes all materials explicitly adopted in it. The clerk shall indicate the date of filing on the order.
 (8) "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties
delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of
the following applies:
  (a) The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this
chapter;
  (b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
  (c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by
s. 120.54(3)(a)1.;
  (d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
  (e) The rule is arbitrary or capricious;
  (f) The rule is not supported by competent substantial evidence; or
  (g) The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of
less costly alternatives that substantially accomplish the statutory objectives.

A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be
implemented is also required. An agency may adopt only rules that implement, interpret, or make specific the particular
powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is
reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious, nor shall an agency have the
authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting
rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further
than the particular powers and duties conferred by the same statute.

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 (9) "License" means a franchise, permit, certification, registration, charter, or similar form of authorization required by law,
but it does not include a license required primarily for revenue purposes when issuance of the license is merely a ministerial
act.
 (10) "Licensing" means the agency process respecting the issuance, denial, renewal, revocation, suspension, annulment,
withdrawal, or amendment of a license or imposition of terms for the exercise of a license.
 (11) "Official reporter" means the publication in which an agency publishes final orders, the index to final orders, and the
list of final orders which are listed rather than published.
 (12) "Party" means:
   (a) Specifically named persons whose substantial interests are being determined in the proceeding.
   (b) Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is
entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed
agency action, and who makes an appearance as a party.
   (c) Any other person, including an agency staff member, allowed by the agency to intervene or participate in the
proceeding as a party. An agency may by rule authorize limited forms of participation in agency proceedings for persons
who are not eligible to become parties.
   (d) Any county representative, agency, department, or unit funded and authorized by state statute or county ordinance to
represent the interests of the consumers of a county, when the proceeding involves the substantial interests of a significant
number of residents of the county and the board of county commissioners has, by resolution, authorized the representative,
agency, department, or unit to represent the class of interested persons. The authorizing resolution shall apply to a specific
proceeding and to appeals and ancillary proceedings thereto, and it shall not be required to state the names of the persons
whose interests are to be represented.
 (13) "Person" means any person described in s. 1.01, any unit of government in or outside the state, and any agency
described in subsection (1).
 (14) "Recommended order" means the official recommendation of an administrative law judge assigned by the division or of
any other duly authorized presiding officer, other than an agency head or member of an agency head, for the final disposition
of a proceeding under ss. 120.569 and 120.57.
 (15) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or
describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or
solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or
repeal of a rule. The term does not include:
   (a) Internal management memoranda which do not affect either the private interests of any person or any plan or procedure
important to the public and which have no application outside the agency issuing the memorandum.
   (b) Legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions prior to their use in
connection with an agency action.
   (c) The preparation or modification of:
    1. Agency budgets.
    2. Statements, memoranda, or instructions to state agencies issued by the Comptroller as chief fiscal officer of the state
and relating or pertaining to claims for payment submitted by state agencies to the Comptroller.
    3. Contractual provisions reached as a result of collective bargaining.
 (16) "Small city" means any municipality that has an unincarcerated population of 10,000 or less according to the most
recent decennial census.
 (17) "Small county" means any county that has an unincarcerated population of 75,000 or less according to the most recent
decennial census.
 (18) "Variance" means a decision by an agency to grant a modification to all or part of the literal requirements of an agency
rule to a person who is subject to the rule. Any variance shall conform to the standards for variances outlined in this chapter
and in the uniform rules adopted pursuant to s. 120.54(5).
 (19) "Waiver" means a decision by an agency not to apply all or part of a rule to a person who is subject to the rule. Any
waiver shall conform to the standards for waivers outlined in this chapter and in the uniform rules adopted pursuant to s.
120.54(5).
  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; 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; 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; s. 50, ch. 92-279; s. 55, ch. 92-326; s. 3, ch. 96-159.
 * Note.--
  The text of Amendment 6 to C.S. for S.B.'s 2290 and 2288, 1996 regular legislative session, ended with the word
"subsection"; however, the period was inadvertently omitted. After the House passed the bill, the engrossing office inserted

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the words "or an" at the end of the sentence instead of adding the period and changed the directory language to include a line
stricken by the original amendment which retained the phrase "expressway authority pursuant to chapter 348." The Senate
concurred in the original House amendment. The journals have been corrected to reflect the amendment as offered and
adopted ( see Journal of the House of Representatives 1996, pp. 746-747, and Journal of the Senate 1996, p. 513). After
passage by both houses, the amendment was engrossed into the bill with the "expressway authority pursuant to chapter 348"
language, the bill was enrolled, and that version was signed by the Governor and designated as ch. 96-159 by the Secretary
of State's Office.

  120.525 Meetings, hearings, and workshops.--
 (1) Except in the case of emergency meetings, each agency shall give notice of public meetings, hearings, and workshops by
publication in the Florida Administrative Weekly not less than 7 days before the event. The notice shall include a statement
of the general subject matter to be considered.
 (2) An agenda shall be prepared by the agency in time to ensure that a copy of the agenda may be received at least 7 days
before the event by any person in the state who requests a copy and who pays the reasonable cost of the copy. The agenda
shall contain the items to be considered in order of presentation. After the agenda has been made available, a change shall be
made only for good cause, as determined by the person designated to preside, and stated in the record. Notification of such
change shall be at the earliest practicable time.
 (3) If an agency finds that an immediate danger to the public health, safety, or welfare requires immediate action, the agency
may hold an emergency public meeting and give notice of such meeting by any procedure that is fair under the circumstances
and necessary to protect the public interest, if:
   (a) The procedure provides at least the procedural protection given by other statutes, the State Constitution, or the United
States Constitution.
   (b) The agency takes only that action necessary to protect the public interest under the emergency procedure.
   (c) The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an
immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under
the circumstances. The agency findings of immediate danger, necessity, and procedural fairness shall be judicially
reviewable.
  History.--
   s. 4, ch. 96-159.

  *120.53 Maintenance of orders; indexing; listing; organizational information.--
 (1)(a) Each agency shall maintain:
    1. All agency final orders.
    2. a. A current hierarchical subject-matter index, identifying for the public any rule or order as specified in this
subparagraph.
    b. In lieu of the requirement for making available for public inspection and copying a hierarchical subject-matter index of
its orders, an agency may maintain and make available for public use an electronic database of its orders that allows users to
research and retrieve the full texts of agency orders by devising an ad hoc indexing system employing any logical search
terms in common usage which are composed by the user and which are contained in the orders of the agency or by
descriptive information about the order which may not be specifically contained in the order.
    c. The agency orders that must be indexed, unless excluded under paragraph (c) or paragraph (d), include:
    (I) Each final agency order resulting from a proceeding under s. 120.57 or s. 120.573.
    (II) Each final agency order rendered pursuant to s. 120.57(4) which contains a statement of agency policy that may be
the basis of future agency decisions or that may otherwise contain a statement of precedential value.
    (III) Each declaratory statement issued by an agency.
    (IV) Each final order resulting from a proceeding under s. 120.56 or s. 120.574.
    3. A list of all final orders rendered pursuant to s. 120.57(4) which have been excluded from the indexing requirement of
this section, with the approval of the Department of State, because they do not contain statements of agency policy or
statements of precedential value. The list must include the name of the parties to the proceeding and the number assigned to
the final order.
    4. All final orders listed pursuant to subparagraph 3.
   (b) An agency final order that must be indexed or listed pursuant to paragraph (a) must be indexed or listed within 120
days after the order is rendered. Each final order that must be indexed or listed pursuant to paragraph (a) must have attached
a copy of the complete text of any materials incorporated by reference; however, if the quantity of the materials incorporated
makes attachment of the complete text of the materials impractical, the order may contain a statement of the location of such
materials and the manner in which the public may inspect or obtain copies of the materials incorporated by reference. The
Department of State shall establish by rule procedures for indexing final orders, and procedures of agencies for indexing
orders must be approved by the department.

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   (c) Each agency must receive approval in writing from the Department of State for:
     1. The specific types and categories of agency final orders that may be excluded from the indexing and public inspection
requirements, as determined by the department pursuant to paragraph (d).
     2. The method for maintaining indexes, lists, and final orders that must be indexed or listed and made available to the
public.
     3. The method by which the public may inspect or obtain copies of indexes, lists, and final orders.
     4. A sequential numbering system which numbers all final orders required to be indexed or listed pursuant to paragraph
(a), in the order rendered.
     5. Proposed rules for implementing the requirements of this section for indexing and making final orders available for
public inspection.
   (d) In determining which final orders may be excluded from the indexing and public inspection requirements, the
Department of State may consider all factors specified by an agency, including precedential value, legal significance, and
purpose. Only agency final orders that are of limited or no precedential value, that are of limited or no legal significance, or
that are ministerial in nature may be excluded.
   (e) Each agency shall specify the specific types or categories of agency final orders that are excluded from the indexing and
public inspection requirements.
   (f) Each agency shall specify the location or locations where agency indexes, lists, and final orders that are required to be
indexed or listed are maintained and shall specify the method or procedure by which the public may inspect or obtain copies
of indexes, lists, and final orders.
   (g) Each agency shall specify all systems in use by the agency to search and locate agency final orders that are required to
be indexed or listed, including, but not limited to, any automated system. An agency shall make the search capabilities
employed by the agency available to the public subject to reasonable terms and conditions, including a reasonable charge, as
provided by s. 119.07. The agency shall specify how assistance and information pertaining to final orders may be obtained.
   (h) Each agency shall specify the numbering system used to identify agency final orders.
 (2)(a) An agency may comply with subparagraphs (1)(a)1. and 2. by designating an official reporter to publish and index by
subject matter each agency order that must be indexed and made available to the public. An agency is in compliance with
subparagraph (1)(a)3. if it publishes in its designated reporter a list of each agency final order that must be listed and
preserves each listed order and makes it available for public inspection and copying.
   (b) An agency may publish its official reporter or may contract with a publishing firm to publish its official reporter;
however, if an agency contracts with a publishing firm to publish its reporter, the agency is responsible for the quality,
timeliness, and usefulness of the reporter. The Department of State may publish an official reporter for an agency or may
contract with a publishing firm to publish the reporter for the agency; however, if the department contracts for publication of
the reporter, the department is responsible for the quality, timeliness, and usefulness of the reporter. A reporter that is
designated by an agency as its official reporter and approved by the Department of State constitutes the official compilation
of the administrative final orders for that agency.
   (c) A reporter that is published by the Department of State may be made available by annual subscription, and each agency
that designates an official reporter published by the department may be charged a space rate payable to the department. The
subscription rate and the space rate must be equitably apportioned to cover the costs of publishing the reporter.
   (d) An agency that designates an official reporter need not publish the full text of an agency final order that is rendered
pursuant to s. 120.57(4) and that must be indexed pursuant to paragraph (1)(a), if the final order is preserved by the agency
and made available for public inspection and copying and the official reporter indexes the final order and includes a synopsis
of the order. A synopsis must include the names of the parties to the order; any rule, statute, or constitutional provision
pertinent to the order; a summary of the facts, if included in the order, which are pertinent to the final disposition; and a
summary of the final disposition.
 (3) Agency orders that must be indexed or listed are documents of continuing legal value and must be permanently
preserved and made available to the public. Each agency to which this chapter applies shall provide, under the direction of
the Department of State, for the preservation of orders as required by this chapter and for maintaining an index to those
orders.
 (4) Each agency must provide any person who makes a request with a written description of its organization 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; 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; 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, ch. 92-166; s. 143, ch. 92-279; s. 55, ch. 92-326; s. 757, ch.
95-147; s. 5, ch. 96-159; s. 2, ch. 96-423.
  * Note.--
   As amended and substantially reworded by s. 5, ch. 96-159. Paragraph (e) of subsection (5) was also amended by s. 2, ch.
96-423, without reference to the substantial rewording of the section by s. 5, ch. 96-159. Similar provisions are now found at

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s. 120.57(3)(e), as substantially reworded by s. 19, ch. 96-159. As amended by s. 2, ch. 96-423, only, paragraph (e) of
subsection (5) reads:
          120.53 Adoption of rules of procedure and public inspection.--
*        *         *        *        *
         (5) An agency which enters into a contract pursuant to the provisions of ss. 282.303-282.313, chapter 255, chapter
287, or chapters 334-349 shall adopt rules specifying procedures for the resolution of protests arising from the contract
bidding process. Such rules shall at least provide that:

*        *         *        *        *
         (e) Upon receipt of a formal written protest referred pursuant to this subsection, the division director shall expedite
the hearing and assign a hearing officer who shall conduct a hearing within 15 days of the receipt of the formal written
protest by the division and render a recommended order within 30 days after the hearing or within 30 days after receipt of the
hearing transcript or hearing videotape by the hearing officer, whichever is later. The provisions of this paragraph may be
waived upon stipulation by all parties.

 120.532 Agency orders and indexes, preservation.--
[Repealed by s. 6, ch. 96-159.]

  120.533 Coordination of indexing by Department of State.--
The Department of State shall:
 (1) Administer the coordination of the indexing, management, preservation, and availability of agency orders that must be
indexed or listed pursuant to s. 120.53(1).
 (2) Provide, by rule, guidelines for the indexing of agency orders. More than one system for indexing may be approved by
the Department of State, including systems or methods in use, or proposed for use, by an agency. More than one system may
be approved for use by a single agency as best serves the needs of that agency and the public.
 (3) Provide, by rule, for storage and retrieval systems to be maintained by agencies for indexing, and making available,
agency orders by subject matter. The Department of State may approve more than one system, including systems in use, or
proposed for use, by an agency. Storage and retrieval systems that may be used by an agency include, without limitation, a
designated reporter or reporters, a microfilming system, an automated system, or any other system considered appropriate by
the Department of State.
 (4) Determine which final orders must be indexed for each agency.
 (5) Require each agency to report to the department concerning which types or categories of agency orders establish
precedent for each agency.
  History.--
   s. 9, ch. 91-30; s. 1, ch. 91-191; s. 7, ch. 96-159.

 120.535 Rulemaking required.--
[Repealed by s. 8, ch. 96-159.]

  120.536 Rulemaking authority; listing of rules exceeding authority; repeal; challenge.--
 (1) A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be
implemented is also required. An agency may adopt only rules that implement, interpret, or make specific the particular
powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is
reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious, nor shall an agency have the
authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting
rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further
than the particular powers and duties conferred by the same statute.
 (2) By October 1, 1997, each agency shall provide to the Administrative Procedures Committee a listing of each rule, or
portion thereof, adopted by that agency before October 1, 1996, which exceeds the rulemaking authority permitted by this
section. For those rules of which only a portion exceeds the rulemaking authority permitted by this section, the agency shall
also identify the language of the rule which exceeds this authority. The Administrative Procedures Committee shall combine
the lists and provide the cumulative listing to the President of the Senate and the Speaker of the House of Representatives.
The Legislature shall, at the 1998 Regular Session, consider whether specific legislation authorizing the identified rules, or
portions thereof, should be enacted. By January 1, 1999, each agency shall initiate proceedings pursuant to s. 120.54 to
repeal each rule, or portion thereof, identified as exceeding the rulemaking authority permitted by this section for which
authorizing legislation does not exist. By February 1, 1999, the Administrative Procedures Committee shall submit to the
President of the Senate and the Speaker of the House of Representatives a report identifying those rules that an agency had
previously identified as exceeding the rulemaking authority permitted by this section for which proceedings to repeal the rule

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have not been initiated. As of July 1, 1999, the Administrative Procedures Committee or any substantially affected person
may petition an agency to repeal any rule, or portion thereof, because it exceeds the rulemaking authority permitted by this
section. Not later than 30 days after the date of filing the petition if the agency is headed by an individual, or not later than
45 days if the agency is headed by a collegial body, the agency shall initiate rulemaking proceedings to repeal the rule, or
portion thereof, or deny the petition, giving a written statement of its reasons for the denial.
 (3) All proposed rules or amendments to existing rules filed with the Department of State on or after October 1, 1996, shall
be based on rulemaking authority no broader than that permitted by this section. A rule adopted before October 1, 1996, and
not included on a list submitted by an agency in accordance with subsection (2) may not be challenged before November 1,
1997, on the grounds that it exceeds the rulemaking authority or law implemented as described by this section. A rule
adopted before October 1, 1996, and included on a list submitted by an agency in accordance with subsection (2) may not be
challenged before July 1, 1999, on the grounds that it exceeds the rulemaking authority or law implemented as described by
this section.
 (4) Nothing in this section shall be construed to change the legal status of a rule that has otherwise been judicially or
administratively determined to be invalid.
  History.--
  s. 9, ch. 96-159.

  *120.54 Rulemaking.--
 (1) GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN EMERGENCY RULES.--
   (a) Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s. 120.52 shall be adopted
by the rulemaking procedure provided by this section as soon as feasible and practicable.
    1. Rulemaking shall be presumed feasible unless the agency proves that:
    a. The agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to address a
statement by rulemaking;
    b. Related matters are not sufficiently resolved to enable the agency to address a statement by rulemaking; or
    c. The agency is currently using the rulemaking procedure expeditiously and in good faith to adopt rules which address
the statement.
    2. Rulemaking shall be presumed practicable to the extent necessary to provide fair notice to affected persons of relevant
agency procedures and applicable principles, criteria, or standards for agency decisions unless the agency proves that:
    a. Detail or precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable under
the circumstances; or
    b. The particular questions addressed are of such a narrow scope that more specific resolution of the matter is impractical
outside of an adjudication to determine the substantial interests of a party based on individual circumstances.
  (b) Whenever an act of the Legislature is enacted which requires implementation of the act by rules of an agency within the
executive branch of state government, such rules shall be drafted and formally proposed as provided in this section within
180 days after the effective date of the act, unless the act provides otherwise.
  (c) No statutory provision shall be delayed in its implementation pending an agency's adoption of implementing rules
unless there is an express statutory provision prohibiting its application until the adoption of implementing rules.
  (d) In adopting rules, all agencies must, among the alternative approaches to any regulatory objective and to the extent
allowed by law, choose the alternative that does not impose regulatory costs on the regulated person, county, or city which
could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.
  (e) No agency has inherent rulemaking authority, nor has any agency authority to establish penalties for violation of a rule
unless the Legislature, when establishing a penalty, specifically provides that the penalty applies to rules.
  (f) An agency may adopt rules authorized by law and necessary to the proper implementation of a statute prior to the
effective date of the statute, but the rules may not be enforced until the statute upon which they are based is effective.
  (g) Each rule adopted shall contain only one subject.
  (h) In rulemaking proceedings, the agency may recognize any material which may be judicially noticed, and it may provide
that materials so recognized be incorporated into the record of the proceeding. Before the record of any proceeding is
completed, all parties shall be provided a list of these materials and given a reasonable opportunity to examine them and
offer written comments or written rebuttal.
  (i) A rule may incorporate material by reference but only as the material exists on the date the rule is adopted. For purposes
of the rule, changes in the material are not effective unless the rule is amended to incorporate the changes. No rule may be
amended by reference only. Amendments must set out the amended rule in full in the same manner as required by the State
Constitution for laws.
  (j) A rule published in the Florida Administrative Code must be indexed by the Department of State within 90 days after
the rule is filed. The Department of State shall by rule establish procedures for indexing rules.
 (2) RULE DEVELOPMENT; WORKSHOPS; NEGOTIATED RULEMAKING.--



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  (a) Agencies shall provide notice of the development of proposed rules by publication of a notice of rule development in
the Florida Administrative Weekly before providing notice of a proposed rule as required by paragraph (3)(a). The notice of
rule development shall indicate the subject area to be addressed by rule development, provide a short, plain explanation of
the purpose and effect of the rule development, cite the specific legal authority for rule development, and include the
preliminary text of the proposed rules, if available.
  (b) All rules should be drafted in readable language. The language is readable if:
    1. It avoids the use of obscure words and unnecessarily long or complicated constructions; and
    2. It avoids the use of unnecessary technical or specialized language that is understood only by members of particular
trades or professions.
  (c) An agency may hold public workshops for purposes of rule development. An agency must hold public workshops,
including workshops in various regions of the state, for purposes of rule development if requested in writing by any affected
person, unless the agency head explains in writing why a workshop is unnecessary. The explanation is not final agency
action subject to review pursuant to ss. 120.569 and 120.57. The failure to provide the explanation when required may be a
material error in procedure pursuant to s. 120.56(1)(c). When a workshop or public hearing is held, the agency must ensure
that the persons responsible for preparing the proposed rule are available to explain the agency's proposal and to respond to
questions or comments regarding the rule being developed. The workshop may be facilitated or mediated by a neutral third
person, or the agency may employ other types of dispute resolution alternatives for the workshop that are appropriate for rule
development. Notice of a rule development workshop shall be by publication in the Florida Administrative Weekly not less
than 14 days prior to the date on which the workshop is scheduled to be held and shall indicate the subject area which will be
addressed; the agency contact person; and the place, date, and time of the workshop.
  (d) 1. An agency may use negotiated rulemaking in developing and adopting rules. The agency should consider the use of
negotiated rulemaking when complex rules are being drafted or strong opposition to the rules is anticipated. The agency
should consider, but is not limited to considering, whether a balanced committee of interested persons who will negotiate in
good faith can be assembled, whether the agency is willing to support the work of the negotiating committee, and whether
the agency can use the group consensus as the basis for its proposed rule. Negotiated rulemaking uses a committee of
designated representatives to draft a mutually acceptable proposed rule.
    2. An agency that chooses to use the negotiated rulemaking process described in this paragraph shall publish in the
Florida Administrative Weekly a notice of negotiated rulemaking that includes a listing of the representative groups that will
be invited to participate in the negotiated rulemaking process. Any person who believes that his or her interest is not
adequately represented may apply to participate within 30 days after publication of the notice. All meetings of the
negotiating committee shall be noticed and open to the public pursuant to the provisions of this chapter. The negotiating
committee shall be chaired by a neutral facilitator or mediator.
 (3) ADOPTION PROCEDURES.--
  (a) Notices.--
    1. Prior to the adoption, amendment, or repeal of any rule other than an emergency rule, an agency, upon approval of the
agency head, shall give notice of its intended action, setting forth a short, plain explanation of the purpose and effect of the
proposed action; the full text of the proposed rule or amendment and a summary thereof; a reference to the specific
rulemaking authority pursuant to which the rule is adopted; and a reference to the section or subsection of the Florida
Statutes or the Laws of Florida being implemented, interpreted, or made specific. The notice shall include a summary of the
agency's statement of the estimated regulatory costs, if one has been prepared, based on the factors set forth in s. 120.541(2),
and a statement that any person who wishes to provide the agency with information regarding the statement of estimated
regulatory costs, or to provide a proposal for a lower cost regulatory alternative as provided by s. 120.541(1), must do so in
writing within 21 days after publication of the notice. The notice must state the procedure for requesting a public hearing on
the proposed rule.
    2. The notice shall be published in the Florida Administrative Weekly not less than 28 days prior to the intended action.
The proposed rule shall be available for inspection and copying by the public at the time of the publication of notice.
    3. The notice shall be mailed to all persons named in the proposed rule and to all persons who, at least 14 days prior to
such mailing, have made requests of the agency for advance notice of its proceedings. The agency shall also give such notice
as is prescribed by rule to those particular classes of persons to whom the intended action is directed.
    4. The adopting agency shall file with the committee, at least 21 days prior to the proposed adoption date, a copy of each
rule it proposes to adopt; a detailed written statement of the facts and circumstances justifying the proposed rule; a copy of
any statement of estimated regulatory costs that has been prepared pursuant to s. 120.541; a statement of the extent to which
the proposed rule relates to federal standards or rules on the same subject; and the notice required by subparagraph 1.
  (b) Special matters to be considered in rule adoption.--
    1. Statement of estimated regulatory costs.--Prior to the adoption, amendment, or repeal of any rule other than an
emergency rule, an agency is encouraged to prepare a statement of estimated regulatory costs of the proposed rule, as
provided by s. 120.541.
    2. Small businesses, small counties, and small cities.--

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    a. Each agency, before the adoption, amendment, or repeal of a rule, shall consider the impact of the rule on small
businesses as defined by s. 288.703 and the impact of the rule on small counties or small cities as defined by s. 120.52.
Whenever practicable, an agency shall tier its rules to reduce disproportionate impacts on small businesses, small counties, or
small cities to avoid regulating small businesses, small counties, or small cities that do not contribute significantly to the
problem the rule is designed to address. An agency may define "small business" to include businesses employing more than
100 persons, may define "small county" to include those with populations of more than 75,000, and may define "small city"
to include those with populations of more than 10,000, if it finds that such a definition is necessary to adapt a rule to the
needs and problems of small businesses, small counties, or small cities. The agency shall consider each of the following
methods for reducing the impact of the proposed rule on small businesses, small counties, and small cities, or any
combination of these entities:
    (I) Establishing less stringent compliance or reporting requirements in the rule.
    (II) Establishing less stringent schedules or deadlines in the rule for compliance or reporting requirements.
    (III) Consolidating or simplifying the rule's compliance or reporting requirements.
    (IV) Establishing performance standards or best-management practices to replace design or operational standards in the
rule.
    (V) Exempting small businesses, small counties, or small cities from any or all requirements of the rule.
    b.
    (I) If the agency determines that the proposed action will affect small businesses as defined by the agency as provided in
sub-subparagraph a., the agency shall send written notice of the rule to the small business ombudsman of the *2 Department
of Commerce not less than 21 days prior to the intended action.
    (II) Each agency shall adopt those regulatory alternatives offered by the small business ombudsman which it finds are
feasible and consistent with the stated objectives of the proposed rule and which would reduce the impact on small
businesses.
    (III) If an agency does not adopt all alternatives offered pursuant to this sub-subparagraph, it shall, prior to rule adoption
or amendment and pursuant to subparagraph (d)1., file a detailed written statement with the committee explaining the reasons
for failure to adopt such alternatives. Within 3 working days of the filing of such notice, the agency shall send a copy of such
notice to the small business ombudsman.
  (c) Hearings.--
    1. If the intended action concerns any rule other than one relating exclusively to procedure or practice, the agency shall,
on the request of any affected person received within 21 days after the date of publication of the notice of intended agency
action, give affected persons an opportunity to present evidence and argument on all issues under consideration. The agency
may schedule a public hearing on the rule and, if requested by any affected person, shall schedule a public hearing on the
rule. Any material pertinent to the issues under consideration submitted to the agency within 21 days after the date of
publication of the notice or submitted at a public hearing shall be considered by the agency and made a part of the record of
the rulemaking proceeding.
    2. Rulemaking proceedings shall be governed solely by the provisions of this section unless a person timely asserts that
the person's substantial interests will be affected in the proceeding and affirmatively demonstrates to the agency that the
proceeding does not provide adequate opportunity to protect those interests. If the agency determines that the rulemaking
proceeding is not adequate to protect the person's interests, it shall suspend the rulemaking proceeding and convene a
separate proceeding under the provisions of ss. 120.569 and 120.57. Similarly situated persons may be requested to join and
participate in the separate proceeding. Upon conclusion of the separate proceeding, the rulemaking proceeding shall be
resumed.
  (d) Modification or withdrawal of proposed rules.--
    1. After the final public hearing on the proposed rule, or after the time for requesting a hearing has expired, if the rule has
not been changed from the rule as previously filed with the committee, or contains only technical changes, the adopting
agency shall file a notice to that effect with the committee at least 7 days prior to filing the rule for adoption. Any change,
other than a technical change that does not affect the substance of the rule, must be supported by the record of public
hearings held on the rule, must be in response to written material received on or before the date of the public hearing, or must
be in response to a proposed objection by the committee. In addition, when any change is made in a proposed rule, other than
a technical change, the adopting agency shall provide a copy of a notice of change by certified mail or actual delivery to any
person who requests it in writing. The agency shall file the notice with the committee, along with the reasons for such
change, and provide the notice to persons requesting it, at least 21 days prior to filing the rule for adoption. The notice shall
be published in the Florida Administrative Weekly at least 21 days prior to filing the rule for adoption. This subparagraph
does not apply to emergency rules adopted pursuant to subsection (4).
    2. After the notice required by paragraph (a) and prior to adoption, the agency may withdraw the rule in whole or in part.
    3. After adoption and before the effective date, a rule may be modified or withdrawn only in response to an objection by
the committee or may be modified to extend the effective date by not more than 60 days when the committee has notified the
agency that an objection to the rule is being considered.

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    4. The agency shall give notice of its decision to withdraw or modify a rule in the first available issue of the publication in
which the original notice of rulemaking was published, shall notify those persons described in subparagraph (a)3. in
accordance with the requirements of that subparagraph, and shall notify the Department of State if the rule is required to be
filed with the Department of State.
    5. After a rule has become effective, it may be repealed or amended only through the rulemaking procedures specified in
this chapter.
   (e) Filing for final adoption; effective date.--
    1. If the adopting agency is required to publish its rules in the Florida Administrative Code, it shall file with the
Department of State three certified copies of the rule it proposes to adopt, a summary of the rule, a summary of any hearings
held on the rule, and a detailed written statement of the facts and circumstances justifying the rule. Agencies not required to
publish their rules in the Florida Administrative Code shall file one certified copy of the proposed rule, and the other material
required by this subparagraph, in the office of the agency head, and such rules shall be open to the public.
    2. Filings shall be made no less than 28 days nor more than 90 days after the notice required by paragraph (a). If a notice
of change is required to be published, the 90-day period during which a rule must be filed for adoption is extended to 21 days
after the date of publication. If a public hearing is held, the 90-day limit is extended to 21 days after adjournment of the final
hearing on the rule, 21 days after receipt of all material authorized to be submitted at the hearing, or 21 days after receipt of
the transcript, if one is made, whichever is latest. For purposes of this subparagraph, "public hearing" includes any public
meeting held by any agency at which the rule is considered. The filing of a petition for an administrative determination
under the provisions of s. 120.56(2) shall toll the 90-day period during which a rule must be filed for adoption until the
administrative law judge has filed the final order with the clerk.
    3. At the time a rule is filed, the agency shall certify that the time limitations prescribed by this paragraph have been
complied with, that all statutory rulemaking requirements have been met, and that there is no administrative determination
pending on the rule.
    4. At the time a rule is filed, the committee shall certify whether the agency has responded in writing to all material and
timely written comments or written inquiries made on behalf of the committee. The department shall reject any rule not filed
within the prescribed time limits; that does not satisfy all statutory rulemaking requirements; upon which an agency has not
responded in writing to all material and timely written inquiries or written comments; upon which an administrative
determination is pending; or which does not include a statement of estimated regulatory costs, if required.
    5. If a rule has not been adopted within the time limits imposed by this paragraph or has not been adopted in compliance
with all statutory rulemaking requirements, the agency proposing the rule shall withdraw the rule and give notice of its action
in the next available issue of the Florida Administrative Weekly.
    6. The proposed rule shall be adopted on being filed with the Department of State and become effective 20 days after
being filed, on a later date specified in the rule, or on a date required by statute. Rules not required to be filed with the
Department of State shall become effective when adopted by the agency head or on a later date specified by rule or statute. If
the committee notifies an agency that an objection to a rule is being considered, the agency may postpone the adoption of the
rule to accommodate review of the rule by the committee. When an agency postpones adoption of a rule to accommodate
review by the committee, the 90-day period for filing the rule is tolled until the committee notifies the agency that it has
completed its review of the rule.
 (4) EMERGENCY RULES.--
   (a) If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the
agency may adopt any rule necessitated by the immediate danger. The agency may adopt any procedure which is fair under
the circumstances if:
    1. The procedure provides at least the procedural protection given by other statutes, the State Constitution, or the United
States Constitution.
    2. The agency takes only that action necessary to protect the public interest under the emergency procedure.
    3. The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an
immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under
the circumstances. In any event, notice of emergency rules, other than those of educational units or units of government with
jurisdiction in only one or a part of one county, including the full text of the rules, shall be published in the first available
issue of the Florida Administrative Weekly and provided to the committee. The agency's findings of immediate danger,
necessity, and procedural fairness shall be judicially reviewable.
   (b) Rules pertaining to the public health, safety, or welfare shall include rules pertaining to perishable agricultural
commodities.
   (c) An emergency rule adopted under this subsection shall not be effective for a period longer than 90 days and shall not be
renewable, except during the pendency of a challenge to proposed rules addressing the subject of the emergency rule.
However, the agency may take identical action by the rulemaking procedures specified in this chapter.




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   (d) Subject to applicable constitutional and statutory provisions, an emergency rule becomes effective immediately on
filing, or on a date less than 20 days thereafter if specified in the rule, if the adopting agency finds that such effective date is
necessary because of immediate danger to the public health, safety, or welfare.
 (5) UNIFORM RULES.--
   (a) 1. By July 1, 1997, the Administration Commission shall adopt one or more sets of uniform rules of procedure which
shall be reviewed by the committee and filed with the Department of State. Agencies must comply with the uniform rules by
July 1, 1998. The uniform rules shall establish procedures that comply with the requirements of this chapter. On filing with
the department, the uniform rules shall be the rules of procedure for each agency subject to this chapter unless the
Administration Commission grants an exception to the agency under this subsection.
    2. An agency may seek exceptions to the uniform rules of procedure by filing a petition with the Administration
Commission. The Administration Commission shall approve exceptions to the extent necessary to implement other statutes,
to the extent necessary to conform to any requirement imposed as a condition precedent to receipt of federal funds or to
permit persons in this state to receive tax benefits under federal law, or as required for the most efficient operation of the
agency as determined by the Administration Commission. The reasons for the exceptions shall be published in the Florida
Administrative Weekly.
    3. Agency rules that provide exceptions to the uniform rules shall not be filed with the department unless the
Administration Commission has approved the exceptions. Each agency that adopts rules that provide exceptions to the
uniform rules shall publish a separate chapter in the Florida Administrative Code that delineates clearly the provisions of the
agency's rules that provide exceptions to the uniform rules and specifies each alternative chosen from among those
authorized by the uniform rules. Each chapter shall be organized in the same manner as the uniform rules.
   (b) The uniform rules of procedure adopted by the commission pursuant to this subsection shall include, but not be limited
to:
    1. Uniform rules for the scheduling of public meetings, hearings, and workshops.
    2. Uniform rules for use by each state agency that provide procedures for conducting public meetings, hearings, and
workshops, and for taking evidence, testimony, and argument at such public meetings, hearings, and workshops, in person
and by means of communications media technology. The rules shall provide that all evidence, testimony, and argument
presented shall be afforded equal consideration, regardless of the method of communication. If a public meeting, hearing, or
workshop is to be conducted by means of communications media technology, or if attendance may be provided by such
means, the notice shall so state. The notice for public meetings, hearings, and workshops utilizing communications media
technology shall state how persons interested in attending may do so and shall name locations, if any, where communications
media technology facilities will be available. Nothing in this paragraph shall be construed to diminish the right to inspect
public records under chapter 119. Limiting points of access to public meetings, hearings, and workshops subject to the
provisions of s. 286.011 to places not normally open to the public shall be presumed to violate the right of access of the
public, and any official action taken under such circumstances is void and of no effect. Other laws relating to public
meetings, hearings, and workshops, including penal and remedial provisions, shall apply to public meetings, hearings, and
workshops conducted by means of communications media technology, and shall be liberally construed in their application to
such public meetings, hearings, and workshops. As used in this subparagraph, "communications media technology" means
the electronic transmission of printed matter, audio, full-motion video, freeze-frame video, compressed video, and digital
video by any method available.
    3. Uniform rules of procedure for the filing of notice of protests and formal written protests.
    4. Uniform rules of procedure for the filing and prompt disposition of petitions for declaratory statements.
    5. Provision of a method by which each agency head shall provide a description of the agency's organization and general
course of its operations.
    6. Uniform rules establishing procedures for granting or denying petitions for variances and waivers pursuant to s.
120.542.
 (6) ADOPTION OF FEDERAL STANDARDS.--Notwithstanding any contrary provision of this section, in the pursuance
of state implementation, operation, or enforcement of federal programs, an agency is empowered to adopt rules substantively
identical to regulations adopted pursuant to federal law, in accordance with the following procedures:
   (a) The agency shall publish notice of intent to adopt a rule pursuant to this subsection in the Florida Administrative
Weekly at least 21 days prior to filing the rule with the Department of State. The agency shall provide a copy of the notice of
intent to adopt a rule to the committee at least 21 days prior to the date of filing with the Department of State. Prior to filing
the rule with the Department of State, the agency shall consider any written comments received within 14 days after the date
of publication of the notice of intent to adopt a rule. The rule shall be adopted upon filing with the Department of State.
Substantive changes from the rules as noticed shall require republishing of notice as required in this subsection.
   (b) Any rule adopted pursuant to this subsection shall become effective upon the date designated in the rule by the agency;
however, no such rule shall become effective earlier than the effective date of the substantively identical federal regulation.
   (c) Any substantially affected person may, within 14 days after the date of publication of the notice of intent to adopt a
rule, file an objection to rulemaking with the agency. The objection shall specify the portions of the proposed rule to which

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the person objects and the specific reasons for the objection. The agency shall not proceed pursuant to this subsection to
adopt those portions of the proposed rule specified in an objection, unless the agency deems the objection to be frivolous, but
may proceed pursuant to subsection (3). An objection to a proposed rule, which rule in no material respect differs from the
requirements of the federal regulation upon which it is based, is deemed to be frivolous.
   (d) Whenever any federal regulation adopted as an agency rule pursuant to this subsection is declared invalid or is
withdrawn, revoked, repealed, remanded, or suspended, the agency shall, within 60 days thereafter, publish a notice of repeal
of the substantively identical agency rule in the Florida Administrative Weekly. Such repeal is effective upon publication of
the notice. Whenever any federal regulation adopted as an agency rule pursuant to this subsection is substantially amended,
the agency may adopt the amended regulation as a rule. If the amended regulation is not adopted as a rule within 180 days
after the effective date of the amended regulation, the original rule is deemed repealed and the agency shall publish a notice
of repeal of the original agency rule in the next available Florida Administrative Weekly.
   (e) Whenever all or part of any rule proposed for adoption by the agency is substantively identical to a regulation adopted
pursuant to federal law, such rule shall be written in a manner so that the rule specifically references the regulation whenever
possible.
 (7) PETITION TO INITIATE RULEMAKING.--
   (a) Any person regulated by an agency or having substantial interest in an agency rule may petition an agency to adopt,
amend, or repeal a rule or to provide the minimum public information required by this chapter. The petition shall specify the
proposed rule and action requested. Not later than 30 calendar days following the date of filing a petition, the agency shall
initiate rulemaking proceedings under this chapter, otherwise comply with the requested action, or deny the petition with a
written statement of its reasons for the denial.
   (b) If the petition filed under this subsection is directed to an existing rule which the agency has not adopted by the
rulemaking procedures or requirements set forth in this chapter, the agency shall, not later than 30 days following the date of
filing a petition, initiate rulemaking, otherwise comply with the requested action, or provide notice in the Florida
Administrative Weekly that the agency will hold a public hearing on the petition within 30 days after publication of the
notice. The purpose of the public hearing is to consider the comments of the public directed to the agency rule which has not
been adopted by the rulemaking procedures or requirements of this chapter, its scope and application, and to consider
whether the public interest is served adequately by the application of the rule on a case-by-case basis, as contrasted with its
adoption by the rulemaking procedures or requirements set forth in this chapter.
   (c) Within 30 days following the public hearing provided for by paragraph (b), if the agency does not initiate rulemaking or
otherwise comply with the requested action, the agency shall publish in the Florida Administrative Weekly a statement of its
reasons for not initiating rulemaking or otherwise complying with the requested action, and of any changes it will make in
the scope or application of the unadopted rule. The agency shall file the statement with the committee. The committee shall
forward a copy of the statement to the substantive committee with primary oversight jurisdiction of the agency in each house
of the Legislature. The committee or the committee with primary oversight jurisdiction may hold a hearing directed to the
statement of the agency. The committee holding the hearing may recommend to the Legislature the introduction of
legislation making the rule a statutory standard or limiting or otherwise modifying the authority of the agency.
 (8) RULEMAKING RECORD.--In all rulemaking proceedings the agency shall compile a rulemaking record. The record
shall include, if applicable, copies of:
   (a) All notices given for the proposed rule.
   (b) Any statement of estimated regulatory costs for the rule.
   (c) A written summary of hearings on the proposed rule.
   (d) The written comments and responses to written comments as required by this section and s. 120.541.
   (e) All notices and findings made under subsection (4).
   (f) All materials filed by the agency with the committee under subsection (3).
   (g) All materials filed with the Department of State under subsection (3).
   (h) All written inquiries from standing committees of the Legislature concerning the rule.
Each state agency shall retain the record of rulemaking as long as the rule is in effect. When a rule is no longer in effect, the
record may be destroyed pursuant to the records-retention schedule developed under s. 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; 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; 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; s. 3, ch. 87-385; s. 36, ch. 90-302; ss. 2, 4, 7, ch.
92-166; s. 63, ch. 93-187; s. 758, ch. 95-147; s. 6, ch. 95-295; s. 10, ch. 96-159; s. 6, ch. 96-320; s. 9, ch. 96-370.
  * Note.--
   As amended and substantially reworded by s. 10, ch. 96-159. Paragraph (a) of subsection (2) and paragraph (b) of
subsection (3) were also amended by s. 6, ch. 96-320, without reference to the substantial rewording of the section by s. 10,
ch. 96-159. The amendment to paragraph (a) of subsection (2) by s. 6, ch. 96-320, was incorporated into sub-subparagraph
(3)(b)2.a. in the substantially reworded version. The amendment to paragraph (b) of subsection (3), as amended by s. 6, ch.

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96-320, was not incorporated into the substantially reworded version. As amended by s. 6, ch. 96-320, only, paragraph (b)
of subsection (3) reads:

          (b) If the agency determines that the proposed action will affect small business as defined by the agency as provided
in *3 paragraph (2)(a), the agency shall send written notice of such rule to the Office of Tourism, Trade, and Economic
Development not less than 21 days prior to the intended action.
          1. Within the 21-day period after written notice has been sent and the day on which the intended action is to take
place, the agency shall give the Office of Tourism, Trade, and Economic Development an opportunity to present evidence
and argument and to offer alternatives regarding the impact of the rule on small business.
          2. Each agency shall adopt those alternatives offered pursuant to this subsection which it finds are feasible and
consistent with the stated objectives of the proposed rule and which would reduce the impact on small business.
          3. If an agency does not adopt all alternatives offered pursuant to this subsection, it shall, prior to rule adoption or
amendment and pursuant to *4 subsection (11), file a detailed written statement with the committee explaining the reasons
for failure to adopt such alternatives. Within 3 working days of the filing of such notice, the agency shall send a copy of such
notice to the Office of Tourism, Trade, and Economic Development.
 2 Note.--
  Section 20.17, which created the Department of Commerce, was repealed effective December 31, 1996, by s. 3, ch. 96-320.
 Note.--
  Substantially reworded by s. 10, ch. 96-159. Similar language may be found at s. 120.54(3)(b)2.a.
 4 Note.--
  Substantially reworded by s. 10, ch. 96-159. Similar language may be found at s. 120.54(3)(a)4.

  120.541 Statement of estimated regulatory costs.--
 (1)(a) A substantially affected person, within 21 days after publication of the notice provided under s. 120.54(3)(a), may
submit to an agency a good faith written proposal for a lower cost regulatory alternative to a proposed rule which
substantially accomplishes the objectives of the law being implemented. The proposal may include the alternative of not
adopting any rule, so long as the proposal explains how the lower costs and objectives of the law will be achieved by not
adopting any rule.
   (b) Upon the submission of the lower cost regulatory alternative, the agency shall prepare a statement of estimated
regulatory costs as provided in subsection (2), or shall revise its prior statement of estimated regulatory costs, and either
adopt the alternative or give a statement of the reasons for rejecting the alternative in favor of the proposed rule. The failure
of the agency to prepare or revise the statement of estimated regulatory costs as provided in this paragraph is a material
failure to follow the applicable rulemaking procedures or requirements set forth in this chapter. An agency required to
prepare or revise a statement of estimated regulatory costs as provided in this paragraph shall make it available to the person
who submits the lower cost regulatory alternative and to the public prior to filing the rule for adoption.
   (c) No rule shall be declared invalid because it imposes regulatory costs on the regulated person, county, or city which
could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives, and no rule
shall be declared invalid based upon a challenge to the agency's statement of estimated regulatory costs, unless:
    1. The issue is raised in an administrative proceeding within 1 year after the effective date of the rule; and
    2. The substantial interests of the person challenging the agency's rejection of, or failure to consider, the lower cost
regulatory alternative are materially affected by the rejection; and
    3. a. The agency has failed to prepare or revise the statement of estimated regulatory costs as required by paragraph (b);
or
    b. The challenge is to the agency's rejection under paragraph (b) of a lower cost regulatory alternative submitted under
paragraph (a).
 (2) A statement of estimated regulatory costs shall include:
   (a) A good faith estimate of the number of individuals and entities likely to be required to comply with the rule, together
with a general description of the types of individuals likely to be affected by the rule.
   (b) A good faith estimate of the cost to the agency, and to any other state and local government entities, of implementing
and enforcing the proposed rule, and any anticipated effect on state or local revenues.
   (c) A good faith estimate of the transactional costs likely to be incurred by individuals and entities, including local
government entities, required to comply with the requirements of the rule. As used in this paragraph, "transactional costs"
are direct costs that are readily ascertainable based upon standard business practices, and include filing fees, the cost of
obtaining a license, the cost of equipment required to be installed or used or procedures required to be employed in
complying with the rule, additional operating costs incurred, and the cost of monitoring and reporting.
   (d) An analysis of the impact on small businesses as defined by s. 288.703, and an analysis of the impact on small counties
and small cities as defined by s. 120.52.
   (e) Any additional information that the agency determines may be useful.

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  (f) In the statement or revised statement, whichever applies, a description of any good faith written proposal submitted
under paragraph (1)(a) and either a statement adopting the alternative or a statement of the reasons for rejecting the
alternative in favor of the proposed rule.
 History.--
  s. 11, ch. 96-159.

  120.542 Variances and waivers.--
 (1) Strict application of uniformly applicable rule requirements can lead to unreasonable, unfair, and unintended results in
particular instances. The Legislature finds that it is appropriate in such cases to adopt a procedure for agencies to provide
relief to persons subject to regulation. Agencies are authorized to grant variances and waivers to requirements of their rules
consistent with this section and with rules adopted under the authority of this section. This section does not authorize
agencies to grant variances or waivers to statutes. This section is supplemental to, and does not abrogate, the variance and
waiver provisions in any other statute.
 (2) Variances and waivers shall be granted when the person subject to the rule demonstrates that the purpose of the
underlying statute will be or has been achieved by other means by the person and when application of a rule would create a
substantial hardship or would violate principles of fairness. For purposes of this section, "substantial hardship" means a
demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver. For
purposes of this section, "principles of fairness" are violated when the literal application of a rule affects a particular person
in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule.
 (3) The Governor and Cabinet, sitting as the Administration Commission, shall adopt uniform rules of procedure pursuant to
the requirements of s. 120.54(5) establishing procedures for granting or denying petitions for variances and waivers. The
uniform rules may include procedures for the granting or denial of emergency and temporary variances and waivers. Such
provisions may provide for expedited timeframes in the case of such temporary or emergency variances and waivers.
 (4) Agencies shall advise persons of the remedies available through this section and shall provide copies of this section, the
uniform rules on variances and waivers, and, if requested, the underlying statute, to persons who inquire about the possibility
of relief from rule requirements.
 (5) A person who is subject to regulation by an agency rule may file a petition with that agency requesting a variance or
waiver from the agency's rule. In addition to any requirements mandated by the uniform rules, each petition shall specify:
   (a) The rule from which a variance or waiver is requested.
   (b) The type of action requested.
   (c) The specific facts that would justify a waiver or variance for the petitioner.
   (d) The reason why the variance or the waiver requested would serve the purposes of the underlying statute.
 (6) Within 15 days after receipt of a petition for variance or waiver, an agency shall provide notice of the petition to the
Department of State, which shall publish notice of the petition in the first available issue of the Florida Administrative
Weekly. The uniform rules shall provide a means for interested persons to provide comments on the petition.
 (7) An agency shall grant or deny a petition for variance or waiver within 90 days of its receipt. If such petition is not
granted or denied within 90 days of receipt, the petition shall be deemed approved. An order granting or denying the petition
shall be in writing and shall contain a statement of the relevant facts and reasons supporting the agency's action. The agency's
decision to grant or deny the petition shall be supported by competent substantial evidence and is subject to ss. 120.569 and
120.57. Any proceeding pursuant to ss. 120.569 and 120.57 in regard to a variance or waiver shall be limited to the agency
action on the request for the variance or waiver, except that a proceeding in regard to a variance or waiver may be
consolidated with any other proceeding authorized by this chapter.
 (8) Each agency shall maintain a record of the type and disposition of each petition, including temporary or emergency
variances and waivers, filed pursuant to this section. On October 1 of each year, each agency shall file a report with the
Governor, the President of the Senate, and the Speaker of the House of Representatives listing the number of petitions filed
requesting variances to each agency rule, the number of petitions filed requesting waivers to each agency rule, and the
disposition of all petitions. Temporary or emergency variances and waivers, and the reasons for granting or denying
temporary or emergency variances and waivers, shall be identified separately from other waivers and variances.

 History.--
 s. 12, ch. 96-159.

 120.543 Adoption of federal standards.--
[Repealed by s. 13, ch. 96-159.]

 120.545 Committee review of agency rules.--




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 (1) As a legislative check on legislatively created authority, the committee shall examine each proposed rule, except for
those proposed rules exempted by s. 120.81(1)(d) and (2), and its accompanying material, and each emergency rule, and may
examine any existing rule, for the purpose of determining whether:
  (a) The rule is an invalid exercise of delegated legislative authority.
  (b) The statutory authority for the rule has been repealed.
  (c) The rule reiterates or paraphrases statutory material.
  (d) The rule is in proper form.
  (e) The notice given prior to its adoption was sufficient to give adequate notice of the purpose and effect of the rule.
  (f) The rule is consistent with expressed legislative intent pertaining to the specific provisions of law which the rule
implements.
  (g) The rule is necessary to accomplish the apparent or expressed objectives of the specific provision of law which the rule
implements.
  (h) The rule is a reasonable implementation of the law as it affects the convenience of the general public or persons
particularly affected by the rule.
  (i) The rule could be made less complex or more easily comprehensible to the general public.
  (j) The rule does not impose regulatory costs on the regulated person, county, or city which could be reduced by the
adoption of less costly alternatives that substantially accomplish the statutory objectives.
  (k) The rule will require additional appropriations.
  (l) If the rule is an emergency rule, there exists an emergency justifying the promulgation of such rule, the agency has
exceeded the scope of its statutory authority, and the rule was promulgated in compliance with the requirements and
limitations of s. 120.54(4).
 (2) The committee may request from an agency such information as is reasonably necessary for examination of a rule as
required by subsection (1). The committee shall consult with legislative standing committees with jurisdiction over the
subject areas. If the committee objects to an emergency rule or a proposed or existing rule, it shall, within 5 days of the
objection, certify that fact to the agency whose rule has been examined and include with the certification a statement
detailing its objections with particularity. The committee shall notify the Speaker of the House of Representatives and the
President of the Senate of any objection to an agency rule concurrent with certification of that fact to the agency. Such
notice shall include a copy of the rule and the statement detailing the committee's objections to the rule.
 (3) Within 30 days of receipt of the objection, if the agency is headed by an individual, or within 45 days of receipt of the
objection, if the agency is headed by a collegial body, the agency shall:
  (a) If the rule is a proposed rule:
    1. Modify the rule to meet the committee's objection;
    2. Withdraw the rule in its entirety; or
    3. Refuse to modify or withdraw the rule.
  (b) If the rule is an existing rule:
    1. Notify the committee that it has elected to amend the rule to meet the committee's objection and initiate the amendment
procedure;
    2. Notify the committee that it has elected to repeal the rule and initiate the repeal procedure; or
    3. Notify the committee that it refuses to amend or repeal the rule.
  (c) If the rule is either an existing or a proposed rule and the objection is to the statement of estimated regulatory costs:
    1. Prepare a corrected statement of estimated regulatory costs, give notice of the availability of the corrected statement in
the first available issue of the Florida Administrative Weekly, and file a copy of the corrected statement with the committee;
or
    2. Notify the committee that it refuses to prepare a corrected statement of estimated regulatory costs.
 (4) If the agency elects to modify a proposed rule to meet the committee's objection, it shall make only such modifications as
are necessary to meet the objection and shall resubmit the rule to the committee. The agency shall give notice of its election
to modify a proposed rule to meet the committee's objection by publishing a notice of change in the first available issue of
the Florida Administrative Weekly, but shall not be required to conduct a public hearing. If the agency elects to amend an
existing rule to meet the committee's objection, it shall notify the committee in writing and shall initiate the amendment
procedure by giving notice in the next available issue of the Florida Administrative Weekly. The committee shall give
priority to rules so modified or amended when setting its agenda.
 (5) If the agency elects to withdraw a proposed rule as a result of a committee objection, it shall notify the committee, in
writing, of its election and shall give notice of the withdrawal in the next available issue of the Florida Administrative
Weekly. The rule shall be withdrawn without a public hearing, effective upon publication of the notice in the Florida
Administrative Weekly. If the agency elects to repeal an existing rule as a result of a committee objection, it shall notify the
committee, in writing, of its election and shall initiate rulemaking procedures for that purpose by giving notice in the next
available issue of the Florida Administrative Weekly.



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 (6) If an agency elects to amend or repeal an existing rule as a result of a committee objection, it shall complete the process
within 90 days after giving notice in the Florida Administrative Weekly.
 (7) Failure of the agency to respond to a committee objection to a proposed rule within the time prescribed in subsection (3)
shall constitute withdrawal of the rule in its entirety. In this event, the committee shall notify the Department of State that
the agency, by its failure to respond to a committee objection, has elected to withdraw the proposed rule. Upon receipt of the
committee's notice, the Department of State shall publish a notice to that effect in the next available issue of the Florida
Administrative Weekly. Upon publication of the notice, the proposed rule shall be stricken from the files of the Department
of State and the files of the agency.
 (8) Failure of the agency to respond to a committee objection to an existing rule within the time prescribed in subsection (3)
shall constitute a refusal to repeal the rule.
 (9) If the committee objects to a proposed or existing rule and the agency refuses to modify, amend, withdraw, or repeal the
rule, the committee shall file with the Department of State a notice of the objection, detailing with particularity its objection
to the rule. The Department of State shall publish this notice in the Florida Administrative Weekly and shall publish, as a
history note to the rule in the Florida Administrative Code, a reference to the committee's objection and to the issue of the
Weekly in which the full text thereof appears.
 (10)(a) If the committee objects to a proposed or existing rule, or portion thereof, and the agency fails to initiate
administrative action to modify, amend, withdraw, or repeal the rule consistent with the objection within 60 days after the
objection, or thereafter fails to proceed in good faith to complete such action, the committee may submit to the President of
the Senate and the Speaker of the House of Representatives a recommendation that legislation be introduced to modify or
suspend the adoption of the proposed rule, or amend or repeal the rule, or portion thereof.
  (b) 1. If the committee votes to recommend the introduction of legislation to modify or suspend the adoption of a proposed
rule, or amend or repeal a rule, the committee shall, within 5 days after this determination, certify that fact to the agency
whose rule or proposed rule has been examined. The committee may request that the agency temporarily suspend the rule or
suspend the adoption of the proposed rule, pending consideration of proposed legislation during the next regular session of
the Legislature.
    2. Within 30 days after receipt of the certification, if the agency is headed by an individual, or within 45 days after receipt
of the certification, if the agency is headed by a collegial body, the agency shall either:
    a. Temporarily suspend the rule or suspend the adoption of the proposed rule; or
    b. Notify the committee in writing that it refuses to temporarily suspend the rule or suspend the adoption of the proposed
rule.
    3. If the agency elects to temporarily suspend the rule or suspend the adoption of the proposed rule, it shall give notice of
the suspension in the Florida Administrative Weekly. The rule or the rule adoption process shall be suspended upon
publication of the notice. An agency shall not base any agency action on a suspended rule or suspended proposed rule, or
portion thereof, prior to expiration of the suspension. A suspended rule or suspended proposed rule, or portion thereof,
continues to be subject to administrative determination and judicial review as provided by law.
    4. Failure of an agency to respond to committee certification within the time prescribed by subparagraph 2. constitutes a
refusal to suspend the rule or to suspend the adoption of the proposed rule.
  (c) The committee shall prepare bills to modify or suspend the adoption of the proposed rule or amend or repeal the rule, or
portion thereof, in accordance with the rules of the Senate and the House of Representatives for prefiling and introduction in
the next regular session of the Legislature. The proposed bill shall be presented to the President of the Senate and the
Speaker of the House of Representatives with the committee recommendation.
  (d) If a bill to suspend the adoption of a proposed rule is enacted into law, the proposed rule is suspended until specific
delegated legislative authority for the proposed rule has been enacted. If a bill to suspend the adoption of a proposed rule
fails to become law, any temporary agency suspension of the rule shall expire. If a bill to modify a proposed rule or amend a
rule is enacted into law, the suspension shall expire upon publication of notice of modification or amendment in the Florida
Administrative Weekly. If a bill to repeal a rule is enacted into law, the suspension shall remain in effect until notification of
repeal of the rule is published in the Florida Administrative Weekly.
  (e) The Department of State shall publish in the next available issue of the Florida Administrative Weekly the final
legislative action taken. If a bill to modify or suspend the adoption of the proposed rule or amend or repeal the rule, or
portion thereof, is enacted into law, the Department of State shall conform the rule or portion of the rule to the provisions of
the law in the Florida Administrative Code and publish a reference to the law as a history note to the rule.
  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.

 120.55 Publication.--
(1) The Department of State shall:



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   (a) 1. Publish in a permanent compilation entitled "Florida Administrative Code" all rules adopted by each agency, citing
the specific rulemaking authority pursuant to which each rule was adopted, all history notes as authorized in s. 120.545(9),
and complete indexes to all rules contained in the code. Supplementation shall be made as often as practicable, but at least
monthly. The department may contract with a publishing firm for the publication, in a timely and useful form, of the Florida
Administrative Code; however, the department shall retain responsibility for the code as provided in this section. This
publication shall be the official compilation of the administrative rules of this state. The Department of State shall retain the
copyright over the Florida Administrative Code.
     2. Rules general in form but applicable to only one school district, community college district, or county, or a part thereof,
or university rules relating to internal personnel or business and finance shall not be published in the Florida Administrative
Code. Exclusion from publication in the Florida Administrative Code shall 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 copies of its rules with the department, the
department shall publish the address 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 from publication in the code, and a statement as to
where those rules may be inspected.
     4. Forms shall not be published in the Florida Administrative Code; but any form which an agency uses in its dealings
with the public, along with any accompanying 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 incorporated by reference into the appropriate
rule. The reference shall specifically 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 obtained.
   (b) Publish a weekly publication entitled the "Florida Administrative Weekly," which shall contain:
     1. Notice of adoption of, and an index to, all rules filed during the preceding week.
     2. All notices required by s. 120.54(3)(a), showing the text of all rules proposed for consideration or a reference to the
location in the Florida Administrative Weekly where the text of the proposed rules is published.
     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 in which a copy of the agenda may be obtained.
     4. A notice of each request for authorization to amend or repeal an existing uniform rule or for the adoption of new
uniform rules.
     5. Notice of petitions for declaratory statements or administrative determinations.
     6. A summary of each objection to any rule filed by the Administrative Procedures Committee during the preceding week.
     7. Any other material required or authorized by law or deemed useful by the department.
The department may contract with a publishing firm for publication of the Florida Administrative Weekly.
   (c) Prescribe by rule the style and form required for rules submitted for filing and establish the form for their certification.
   (d) Correct grammatical, typographical, and like errors not affecting the construction or meaning of the rules, after having
obtained the advice and consent of the appropriate agency, and insert history notes.
   (e) Make copies of the Florida Administrative Weekly available on an annual subscription basis computed to cover a pro
rata share of 50 percent of the costs related to the publication of the Florida Administrative Weekly.
   (f) Charge each agency using the Florida Administrative Weekly a space rate computed to cover a pro rata share of 50
percent of the costs related to the Florida Administrative Weekly.
 (2) Each agency shall print or distribute copies of its rules, citing the specific rulemaking authority pursuant to which each
rule was adopted.
 (3) Any publication of a proposed rule promulgated by an agency, whether published in the Florida Administrative Code or
elsewhere, shall include, along with the rule, the name of the person or persons originating such rule, the name of the
supervisor or person who approved the rule, and the date upon which the rule was approved.
 (4)(a) Each year the Department of State shall furnish the Florida Administrative Weekly, without charge and upon request,
as follows:
     1. One subscription to each federal and state court having jurisdiction over the residents of the state; the Legislative
Library; each state university library; the State Library; each depository library designated pursuant to s. 257.05; and each
standing committee of the Senate and House of Representatives and each state legislator.
     2. Two subscriptions to each state department.
     3. Three subscriptions to the library of the Supreme Court of Florida, the library of each state district court of appeal, the
division, the library of the Attorney General, each law school library in Florida, the Secretary of the Senate, and the Clerk of
the House of Representatives.
     4. Ten subscriptions to the committee.
   (b) The Department of State shall furnish one copy of the Florida Administrative Weekly, at no cost, to each clerk of the
circuit court and each state department, for posting for public inspection.
 (5)(a) There is hereby created in the State Treasury a revolving fund to be known as the "Publication Revolving Trust Fund"
of the Department of State.

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  (b) All fees and moneys collected by the Department of State under this chapter shall be deposited in the revolving trust
fund for the purpose of paying for the publication and distribution of the Florida Administrative Code and the Florida
Administrative Weekly and for associated costs incurred by the department in carrying out this chapter.
  (c) The unencumbered balance in the revolving trust fund at the beginning of each fiscal year shall not exceed $300,000,
and any excess shall be transferred to the General Revenue Fund.
  (d) It is the intent of the Legislature that the Florida Administrative Weekly be supported entirely from funds collected for
subscriptions to and advertisements in the Florida Administrative Weekly. To that end, the Department of State is authorized
to add a surcharge of 10 percent to any charge relating to the Florida Administrative Weekly until such time as the
Publication Revolving Trust Fund has transferred to the General Revenue Fund an amount equal to all funds appropriated to
the trust fund.
 History.--
  s. 1, ch. 74-310; s. 1, ch. 75-107; s. 4, ch. 75-191; s. 5, ch. 76-131; 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; 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; s. 17, ch. 87-
224; s. 1, ch. 87-322; s. 20, ch. 91-45; s. 15, ch. 96-159.

  120.56 Challenges to rules.--
 (1) GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A RULE OR A PROPOSED RULE.--
   (a) Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the
invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.
   (b) The petition seeking an administrative determination must state with particularity the provisions alleged to be invalid
with sufficient explanation of the facts or grounds for the alleged invalidity and facts sufficient to show that the person
challenging a rule is substantially affected by it, or that the person challenging a proposed rule would be substantially
affected by it.
   (c) The petition shall be filed with the division which shall, immediately upon filing, forward copies to the agency whose
rule is challenged, the Department of State, and the committee. Within 10 days after receiving the petition, the division
director shall, if the petition complies with the requirements of paragraph (b), assign an administrative law judge who shall
conduct a hearing within 30 days thereafter, unless the petition is withdrawn or a continuance is granted by agreement of the
parties or for good cause shown. Evidence of good cause includes, but is not limited to, written notice of an agency's
decision to modify or withdraw the proposed rule or a written notice from the chair of the committee stating that the
committee will consider an objection to the rule at its next scheduled meeting. The failure of an agency to follow the
applicable rulemaking procedures or requirements set forth in this chapter shall be presumed to be material; however, the
agency may rebut this presumption by showing that the substantial interests of the petitioner and the fairness of the
proceedings have not been impaired.
   (d) Within 30 days after the hearing, the administrative law judge shall render a decision and state the reasons therefor in
writing. The division shall forthwith transmit copies of the administrative law judge's decision to the agency, the Department
of State, and the committee.
   (e) Hearings held under this section shall be conducted in the same manner as provided by ss. 120.569 and 120.57, except
that the administrative law judge's order shall be final agency action. The petitioner and the agency whose rule is challenged
shall be adverse parties. Other substantially affected persons may join the proceedings as intervenors on appropriate terms
which shall not unduly delay the proceedings. Failure to proceed under this section shall not constitute failure to exhaust
administrative remedies.
 (2) CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.--
   (a) Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule by
filing a petition seeking such a determination with the division within 21 days after the date of publication of the notice
required by s. 120.54(3)(a), within 10 days after the final public hearing is held on the proposed rule as provided by s.
120.54(3)(c), within 20 days after the preparation of a statement of estimated regulatory costs required pursuant to s.
120.541, if applicable, or within 20 days after the date of publication of the notice required by s. 120.54(3)(d). The petition
shall state with particularity the objections to the proposed rule and the reasons that the proposed rule is an invalid exercise
of delegated legislative authority. The agency then has the burden to prove that the proposed rule is not an invalid exercise
of delegated legislative authority as to the objections raised. Any person who is substantially affected by a change in the
proposed rule may seek a determination of the validity of such change. Any person not substantially affected by the
proposed rule as initially noticed, but who is substantially affected by the rule as a result of a change, may challenge any
provision of the rule and is not limited to challenging the change to the proposed rule.
   (b) The administrative law judge may declare the proposed rule wholly or partly invalid. The proposed rule or provision of
a proposed rule declared invalid shall be withdrawn by the adopting agency and shall not be adopted. No rule shall be filed
for adoption until 28 days after the notice required by s. 120.54(3)(a), until 21 days after the notice required by s.
120.54(3)(d), until 14 days after the public hearing, until 21 days after preparation of a statement of estimated regulatory
costs required pursuant to s. 120.541, or until the administrative law judge has rendered a decision, whichever applies.

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However, the agency may proceed with all other steps in the rulemaking process, including the holding of a factfinding
hearing. In the event part of a proposed rule is declared invalid, the adopting agency may, in its sole discretion, withdraw the
proposed rule in its entirety. The agency whose proposed rule has been declared invalid in whole or part shall give notice of
the decision in the first available issue of the Florida Administrative Weekly.
  (c) When any substantially affected person seeks determination of the invalidity of a proposed rule pursuant to this section,
the proposed rule is not presumed to be valid or invalid.
 (3) CHALLENGING EXISTING RULES; SPECIAL PROVISIONS.--
  (a) A substantially affected person may seek an administrative determination of the invalidity of an existing rule at any
time during the existence of the rule.
  (b) The administrative law judge may declare all or part of a rule invalid. The rule or part thereof declared invalid shall
become void when the time for filing an appeal expires. The agency whose rule has been declared invalid in whole or part
shall give notice of the decision in the Florida Administrative Weekly in the first available issue after the rule has become
void.
 (4) CHALLENGING AGENCY STATEMENTS DEFINED AS RULES; SPECIAL PROVISIONS.--
  (a) Any person substantially affected by an agency statement may seek an administrative determination that the statement
violates s. 120.54(1)(a). The petition shall include the text of the statement or a description of the statement and shall state
with particularity facts sufficient to show that the statement constitutes a rule under s. 120.52 and that the agency has not
adopted the statement by the rulemaking procedure provided by s. 120.54.
  (b) The administrative law judge may extend the hearing date beyond 30 days after assignment of the case for good cause.
If a hearing is held and the petitioner proves the allegations of the petition, the agency shall have the burden of proving that
rulemaking is not feasible and practicable under s. 120.54(1)(a).
  (c) The administrative law judge may determine whether all or part of a statement violates s. 120.54(1)(a). The decision of
the administrative law judge shall constitute a final order. The division shall transmit a copy of the final order to the
Department of State and the committee. The Department of State shall publish notice of the final order in the first available
issue of the Florida Administrative Weekly.
  (d) When an administrative law judge enters a final order that all or part of an agency statement violates s. 120.54(1)(a),
the agency shall immediately discontinue all reliance upon the statement or any substantially similar statement as a basis for
agency action.
  (e) Prior to entry of a final order that all or part of an agency statement violates s. 120.54(1)(a), if an agency publishes,
pursuant to s. 120.54(3)(a), proposed rules which address the statement and proceeds expeditiously and in good faith to
adopt rules which address the statement, the agency shall be permitted to rely upon the statement or a substantially similar
statement as a basis for agency action if the statement meets the requirements of s. 120.57(1)(e). If an agency fails to adopt
rules which address the statement within 180 days after publishing proposed rules, for purposes of this subsection, a
presumption is created that the agency is not acting expeditiously and in good faith to adopt rules. If the agency's proposed
rules are challenged pursuant to subsection (2), the 180-day period for adoption of rules is tolled until a final order is entered
in that proceeding.
  (f) All proceedings to determine a violation of s. 120.54(1)(a) shall be brought pursuant to this subsection. A proceeding
pursuant to this subsection may be brought in conjunction with a proceeding under any other section of this chapter or
consolidated with such a proceeding. Nothing in this paragraph shall be construed to prevent a party whose substantial
interests have been determined by an agency action from bringing a proceeding pursuant to s. 120.57(1)(e).
 (5) CHALLENGING EMERGENCY RULES; SPECIAL PROVISIONS.--Challenges to the validity of an emergency rule
shall be subject to the following time schedules in lieu of those established by paragraphs (1)(c) and (d). Within 7 days after
receiving the petition, the division director shall, if the petition complies with paragraph (1)(b), assign an administrative law
judge, who shall conduct a hearing within 14 days, unless the petition is withdrawn. The administrative law judge shall
render a decision within 14 days after the hearing.
  History.--
  s. 1, ch. 74-310; s. 5, ch. 75-191; s. 6, ch. 76-131; s. 1, ch. 77-174; s. 4, ch. 78-425; s. 759, ch. 95-147; s. 16, ch. 96-159.

  120.565 Declaratory statement by agencies.--
 (1) Any substantially affected person may seek a declaratory statement regarding an agency's opinion as to the applicability
of a statutory provision, or of any rule or order of the agency, as it applies to the petitioner's particular set of circumstances.
 (2) The petition seeking a declaratory statement shall state with particularity the petitioner's set of circumstances and shall
specify the statutory provision, rule, or order that the petitioner believes may apply to the set of circumstances.
 (3) The agency shall give notice of the filing of each petition in the next available issue of the Florida Administrative
Weekly and transmit copies of each petition to the committee. The agency shall issue a declaratory statement or deny the
petition within 90 days after the filing of the petition. The declaratory statement or denial of the petition shall be noticed in
the next available issue of the Florida Administrative Weekly. Agency disposition of petitions shall be final agency action.
  History.--

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 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.

  *120.57 Additional procedures for particular cases.--
 (1) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING DISPUTED ISSUES OF MATERIAL
FACT.--
   (a) Except as provided in ss. 120.80 and 120.81, an administrative law judge assigned by the division shall conduct all
hearings under this subsection, except for hearings before agency heads or a member thereof. If the administrative law judge
assigned to a hearing becomes unavailable, the division shall assign another administrative law judge who shall use any
existing record and receive any additional evidence or argument, if any, which the new administrative law judge finds
necessary.
   (b) All parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to conduct
cross-examination and submit rebuttal evidence, to submit proposed findings of facts and orders, to file exceptions to the
presiding officer's recommended order, and to be represented by counsel or other qualified representative. When appropriate,
the general public may be given an opportunity to present oral or written communications. If the agency proposes to consider
such material, then all parties shall be given an opportunity to cross-examine or challenge or rebut the material.
   (c) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be
sufficient in itself to support a finding unless it would be admissible over objection in civil actions.
   (d) Notwithstanding s. 120.569(2)(e), similar fact evidence of other violations, wrongs, or acts is admissible when relevant
to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or
propensity. When the state in an administrative proceeding intends to offer evidence of other acts or offenses under this
paragraph, the state shall furnish to the party whose substantial interests are being determined and whose other acts or
offenses will be the subject of such evidence, no fewer than 10 days before commencement of the proceeding, a written
statement of the acts or offenses it intends to offer, describing them and the evidence the state intends to offer with
particularity. Notice is not required for evidence of acts or offenses which is used for impeachment or on rebuttal.
   (e) 1. Any agency action that determines the substantial interests of a party and that is based on an unadopted rule is subject
to de novo review by an administrative law judge.
    2. The agency action shall not be presumed valid or invalid. The agency must demonstrate that the unadopted rule:
    a. Is within the powers, functions, and duties delegated by the Legislature or, if the agency is operating pursuant to
authority derived from the State Constitution, is within that authority;
    b. Does not enlarge, modify, or contravene the specific provisions of law implemented;
    c. Is not vague, establishes adequate standards for agency decisions, or does not vest unbridled discretion in the agency;
    d. Is not arbitrary or capricious;
    e. Is not being applied to the substantially affected party without due notice;
    f. Is supported by competent and substantial evidence; and
    g. Does not impose excessive regulatory costs on the regulated person, county, or city.
    3. The recommended and final orders in any proceeding shall be governed by the provisions of paragraphs (i) and (j),
except that the administrative law judge's determination regarding the unadopted rule shall not be rejected by the agency
unless the agency first determines from a review of the complete record, and states with particularity in the order, that such
determination is clearly erroneous or does not comply with essential requirements of law. In any proceeding for review
under s. 120.68, if the court finds that the agency's rejection of the determination regarding the unadopted rule does not
comport with the provisions of this subparagraph, the agency action shall be set aside and the court shall award to the
prevailing party the reasonable costs and a reasonable attorney's fee for the initial proceeding and the proceeding for review.
  (f) The record in a case governed by this subsection shall consist only of:
    1. All notices, pleadings, motions, and intermediate rulings.
    2. Evidence admitted.
    3. Those matters officially recognized.
    4. Proffers of proof and objections and rulings thereon.
    5. Proposed findings and exceptions.
    6. Any decision, opinion, order, or report by the presiding officer.
    7. All staff memoranda or data submitted to the presiding officer during the hearing or prior to its disposition, after notice
of the submission to all parties, except communications by advisory staff as permitted under s. 120.66(1), if such
communications are public records.
    8. All matters placed on the record after an ex parte communication.
    9. The official transcript.
  (g) The agency shall accurately and completely preserve all testimony in the proceeding, and, on the request of any party, it
shall make a full or partial transcript available at no more than actual cost.



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  (h) Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary
proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on
matters officially recognized.
  (i) The presiding officer shall complete and submit to the agency and all parties a recommended order consisting of
findings of fact, conclusions of law, and recommended disposition or penalty, if applicable, and any other information
required by law to be contained in the final order. All proceedings conducted pursuant to this subsection shall be de novo.
The agency shall allow each party 15 days in which to submit written exceptions to the recommended order.
  (j) The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject
or modify the conclusions of law and interpretation of administrative rules over which it has substantive jurisdiction.
Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The
agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record,
and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that
the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept
the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record
and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.
  (k) If a recommended order is submitted to an agency, the agency shall provide a copy of its final order to the division
within 15 days after the order is filed with the agency clerk.
  (l) Notwithstanding any law to the contrary, when statutes or rules impose conflicting time requirements for the issuance of
expedited hearings or recommended orders, the director of the division shall have the authority to set the proceedings for the
orderly operation of this chapter.
 (2) ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS NOT INVOLVING DISPUTED ISSUES OF
MATERIAL FACT.--In any case to which subsection (1) does not apply:
  (a) The agency shall:
    1. Give reasonable notice to affected persons of the action of the agency, whether proposed or already taken, or of its
decision to refuse action, together with a summary of the factual, legal, and policy grounds therefor.
    2. Give parties or their counsel an opportunity, at a convenient time and place, to present to the agency or hearing officer
written or oral evidence in opposition to the action of the agency or to its refusal to act, or a written statement challenging the
grounds upon which the agency has chosen to justify its action or inaction.
    3. If the objections of the parties are overruled, provide a written explanation within 7 days.
  (b) The record shall only consist of:
    1. The notice and summary of grounds.
    2. Evidence received.
    3. All written statements submitted.
    4. Any decision overruling objections.
    5. All matters placed on the record after an ex parte communication.
    6. The official transcript.
 (3) ADDITIONAL PROCEDURES APPLICABLE TO PROTESTS TO CONTRACT BIDDING OR AWARD.--An
agency which enters into a contract pursuant to the provisions of ss. 282.303-282.313, chapter 255, chapter 287, or chapters
334-349 shall adopt rules specifying procedures for the resolution of protests arising from the contract bidding process. Such
rules shall at least provide that:
  (a) The agency shall provide notice of its decision or intended decision concerning a bid solicitation or a contract award as
follows:
    1. For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery.
    2. For any decision of the Division of Purchasing of the Department of Management Services concerning a request by an
agency for approval of an exceptional purchase under part I of chapter 287 and the rules of the Division of Purchasing,
notice of a decision or intended decision shall be given by posting such notice in the office of the Division of Purchasing.
    3. For any other agency decision, notice of a decision or intended decision shall be given either by posting the bid
tabulation at the location where the bids were opened or by certified United States mail or other express delivery service,
return receipt requested.
The notice required by this paragraph shall contain the following statement: "Failure to file a protest within the time
prescribed in s. 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."
  (b) Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of
protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or
intended decision and shall file a formal written protest within 10 days after filing the notice of protest. With respect to a
protest of the specifications contained in an invitation to bid or in a request for proposals, the notice of protest shall be filed
in writing within 72 hours after the receipt of notice of the project plans and specifications or intended project plans and
specifications in an invitation to bid or request for proposals, and the formal written protest shall be filed within 10 days after
the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute

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a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon
which the protest is based.
   (c) Upon receipt of the formal written protest which has been timely filed, the agency shall stop the bid solicitation process
or the contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets
forth in writing particular facts and circumstances which require the continuance of the bid solicitation process or the
contract award process without delay in order to avoid an immediate and serious danger to the public health, safety, or
welfare.
   (d) 1. The agency shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7
days, excluding Saturdays, Sundays, and legal holidays, after receipt of a formal written protest.
     2. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal
holidays, after receipt of the formal written protest, and if there is no disputed issue of material fact, an informal proceeding
shall be conducted pursuant to subsection (2) and applicable agency rules before a person whose qualifications have been
prescribed by rules of the agency.
     3. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal
holidays, after receipt of the formal written protest, and if there is a disputed issue of material fact, the agency shall refer the
protest to the division for proceedings under subsection (1).
   (e) Upon receipt of a formal written protest referred pursuant to this subsection, the director of the division shall expedite
the hearing and assign an administrative law judge who shall commence a hearing within 30 days after the receipt of the
formal written protest by the division and enter a recommended order within 30 days after the hearing or within 30 days after
receipt of the hearing transcript by the administrative law judge, whichever is later. Each party shall be allowed 10 days in
which to submit written exceptions to the recommended order. A final order shall be entered by the agency within 30 days
of the entry of a recommended order. The provisions of this paragraph may be waived upon stipulation by all parties.
   (f) In a competitive-procurement protest, no submissions made after the bid or proposal opening amending or
supplementing the bid or proposal shall be considered. Unless otherwise provided by statute, the burden of proof shall rest
with the party protesting the proposed agency action. In a competitive-procurement protest, other than a rejection of all bids,
the administrative law judge shall conduct a de novo proceeding to determine whether the agency's proposed action is
contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications. The standard
of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition,
arbitrary, or capricious. In any bid-protest proceeding contesting an intended agency action to reject all bids, the standard of
review by an administrative law judge shall be whether the agency's intended action is illegal, arbitrary, dishonest, or
fraudulent.
 (4) INFORMAL DISPOSITION.--Unless precluded by law, informal disposition may be made of any proceeding by
stipulation, agreed settlement, or consent order.
 (5) APPLICABILITY.--This section does not apply to agency investigations preliminary to agency action.
  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; 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; 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, ch. 94-218; s. 1420, ch. 95-147; s. 1, ch. 95-328; s. 19, ch. 96-159; s. 1, ch. 96-423.
  * Note.--
   As amended and substantially reworded by s. 19, ch. 96-159. Paragraph (b) of subsection (1), paragraph (b) of subsection
(2), and subsection (6) were amended and a new subsection (7) was added by s. 1, ch. 96-423, all without reference to the
substantial rewording of the section by s. 19, ch. 96-159, and those provisions read:
             120.57 Decisions which affect substantial interests.--The provisions of this section apply in all proceedings in
which the substantial interests of a party are determined by an agency, unless such proceedings are exempt pursuant to
subsection *2 (5). Unless waived by all parties, subsection *2 (1) applies whenever the proceeding involves a disputed issue
of material fact. Unless otherwise agreed, subsection *2 (2) applies in all other cases.
            (1) FORMAL PROCEEDINGS.--
*           *         *        *         *
            (b) In any case to which this subsection is applicable, the following procedures apply:
            1. A request for a hearing shall be granted or denied within 15 days of receipt.
            2. All parties shall be afforded an opportunity for a hearing after reasonable notice of not less than 14 days;
however, the 14-day notice requirement may be waived with the consent of all parties. In a preliminary hearing for the
revocation of parole, no less than 7 days' notice shall be given. In a hearing involving a student disciplinary suspension or
expulsion conducted by an educational unit, the 14-day notice requirement may be waived by the agency head or the hearing
officer without the consent of the parties. The notice shall include:
            a. A statement of the time, place, and nature of the hearing.
            b. A statement of the legal authority and jurisdiction under which the hearing is to be held.

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           c. A reference to the particular sections of the statutes and rules involved.
           d. Except for any hearing before an unemployment compensation appeals referee, a short and plain statement of the
matters asserted by the agency and by all parties of record at the time notice is given. If the agency or any party is unable to
state the matters in sufficient detail at the time initial notice is given, the notice may be limited to a statement of the issues
involved, and thereafter, upon timely written application, a more definite and detailed statement shall be furnished not less
than 3 days prior to the date set for the hearing.
           3. Except for any proceeding conducted as prescribed in *3 s. 120.54(4) or *4 s. 120.56, a petition or request for a
hearing under this section shall be filed with the agency. If the agency elects to request a hearing officer from the division, it
shall so notify the division within 15 days of receipt of the petition or request. When the Florida Land and Water
Adjudicatory Commission receives a notice of appeal pursuant to s. 380.07, the commission shall notify the division within
60 days of receipt of the notice of appeal if the commission elects to request the assignment of a hearing officer. On the
request of any agency, the division shall assign a hearing officer with due regard to the expertise required for the particular
matter. The referring agency shall take no further action with respect to the formal proceeding, except as a party litigant, as
long as the division has jurisdiction over the formal proceeding. Any party may request the disqualification of the hearing
officer by filing an affidavit with the division prior to the taking of evidence at a hearing, stating the grounds with
particularity.
           4. All parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to
conduct cross-examination and submit rebuttal evidence, to submit proposed findings of facts and orders, to file exceptions
to any order or hearing officer's recommended order, and to be represented by counsel. When appropriate, the general public
may be given an opportunity to present oral or written communications. If the agency proposes to consider such material,
then all parties shall be given an opportunity to cross-examine or challenge or rebut it.
           5. All pleadings, motions, or other papers filed in the proceeding must be signed by a party, the party's attorney, or
the party's qualified representative. The signature of a party, a party's attorney, or a party's qualified representative constitutes
a certificate that he or she has read the pleading, motion, or other paper and that, to the best of his or her knowledge,
information, and belief formed after reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to
cause unnecessary delay or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other
paper is signed in violation of these requirements, the hearing officer, upon motion or the officer's own initiative, shall
impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to
pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or
other paper, including a reasonable attorney's fee.
           6. The record in a case governed by this subsection shall consist only of:
           a. All notices, pleadings, motions, and intermediate rulings;
           b. Evidence received or considered;
           c. A statement of matters officially recognized;
           d. Questions and proffers of proof and objections and rulings thereon;
           e. Proposed findings and exceptions;
           f. Any decision, opinion, proposed or recommended order, or report by the officer presiding at the hearing;
           g. All staff memoranda or data submitted to the hearing officer during the hearing or prior to its disposition, after
notice of the submission to all parties, except communications by advisory staff as permitted under s. 120.66(1), if such
communications are public records;
           h. All matters placed on the record after an ex parte communication pursuant to s. 120.66(2); and
           i. The official transcript or original videotape, depending on the method of preservation.
           7. The agency shall accurately and completely preserve all testimony in the proceeding, and, on the request of any
party, it shall make a full or partial transcript or videotape, available at no more than actual cost. In any proceeding before a
hearing officer initiated by a consumptive use permit applicant pursuant to subparagraph 14., the applicant shall bear the cost
of accurately and completely preserving all testimony and providing full or partial transcripts or videotapes to the water
management district. At the request of any other party, full or partial transcripts or videotapes shall be provided at no more
than cost.
           8. Findings of fact shall be based exclusively on the evidence of record and on matters officially recognized.
           9. Except as provided in subparagraph 13., the hearing officer shall complete and submit to the agency and all
parties a recommended order consisting of the officer's findings of fact, conclusions of law, interpretation of administrative
rules, and recommended penalty, if applicable, and any other information required by law or agency rule to be contained in
the final order. The agency shall allow each party at least 10 days in which to submit written exceptions to the recommended
order.
           10. The agency may adopt the recommended order as the final order of the agency. The agency in its final order
may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order. The agency
may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement, unless
the agency first determines from a review of the complete record, and states with particularity in the order, that the findings

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of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not
comply with essential requirements of law. The agency may accept the recommended penalty in a recommended order, but
may not reduce or increase it without a review of the complete record and without stating with particularity its reasons
therefor in the order, by citing to the record in justifying the action. When there is an appeal, the court in its discretion may
award reasonable attorney's fees and costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or
an abuse of the appellate process or that the agency action which precipitated the appeal was a gross abuse of the agency's
discretion.
           11. If the hearing officer assigned to a hearing becomes unavailable, the division shall assign another hearing officer
who shall use any existing record and receive any additional evidence or argument, if any, which the new hearing officer
finds necessary.
           12. A hearing officer who is a member of an agency head may participate in the formulation of the final order of the
agency, provided he or she has completed all duties as hearing officer.
           13. In any application for a license or merger pursuant to title XXXVIII which is referred by the agency to the
division for hearing pursuant to this section, the hearing officer shall complete and submit to the agency and to all parties a
written report consisting of findings of fact and rulings on evidentiary matters. The agency shall allow each party at least 10
days in which to submit written exceptions to the report.
           14. In any application for a consumptive use permit pursuant to part II of chapter 373, the water management
district on its own motion may, or, at the request of the applicant for the permit, shall, refer the matter to the division for the
appointment of a hearing officer to conduct a hearing under this section.
           15. Each agency statement defined as a rule under s. 120.52 and not adopted by the rulemaking procedure provided
by s. 120.54 which is relied upon by an agency to determine the substantial interests of a party shall be subject to de novo
review by a hearing officer. A statement shall not enlarge, modify, or contravene the specific provision of law implemented
or otherwise exceed delegated legislative authority. The statement applied as a result of a proceeding pursuant to this
subsection shall be demonstrated to be within the scope of delegated legislative authority. Recommended and final orders
pursuant to this subsection shall provide an explanation of the statement that includes the evidentiary basis which supports
the statement applied and a general discussion of the justification for the statement applied.
*          *         *        *         *
           (2) INFORMAL PROCEEDINGS.--In any case to which *2 subsection (1) does not apply:
*          *         *        *         *
           (b) The record shall only consist of:
           1. The notice and summary of grounds;
           2. Evidence received or considered;
           3. All written statements submitted by persons and parties;
           4. Any decision overruling objections;
           5. All matters placed on the record after an ex parte communication pursuant to s. 120.66(2); and
           6. The official transcript or original videotape, depending on the method of preservation.
*          *         *        *         *
           (6) In cases where a conceptual review permit has been issued by a water management district, petitions challenging
the issuance of a construction or operating permit implementing the conceptual review permit, upon a motion of a party, shall
be subject to expedited review. Within 15 days of filing a motion for expedited review by the district or the applicant, the
hearing officer shall, by order, establish a schedule for the proceedings, including discovery, which provides for a final
hearing within 60 days of the issuance of the order. Proposed recommended orders must be submitted to the hearing officer,
if at all, within 10 days of the filing of the hearing transcript or hearing videotape. Recommended orders shall be submitted
to the district within 30 days of the last day for the filing of the proposed recommended order. The district shall issue its
final order within 45 days of the receipt of the recommended order. If the district grants the construction or operating permit,
the permittee may proceed unless judicial review of final agency action is sought pursuant to *5 s. 120.68 and a stay is
applied for and issued.
           (7) An agency may preserve all testimony in a proceeding conducted by an administrative law judge assigned by the
division by use of a court reporter or a video camera pursuant to rules adopted by the division. An agency may preserve all
testimony in a proceeding conducted by the agency by use of a court reporter or a video camera. The agency must assure
that the video system will reliably preserve the testimony. If the testimony in a proceeding is to be preserved by use of a
video camera, the agency shall provide reasonable notice of the use of the video camera to any other party to the proceeding.
A party may record the proceeding stenographically at its own expense. A party requesting a copy of the proceeding from an
agency shall receive either a transcript or a videotape, depending on the method of preservation. The Administration
Commission shall adopt model/rules for the use of video cameras to preserve testimony in proceedings not conducted by an
administrative law judge.

 2 Note.--

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  Section 120.57 was substantially reworded by s. 19, ch. 96-159.
 Note.--
  Substantially reworded by s. 10, ch. 96-159.
 4 Note.--
  Substantially reworded by s. 16, ch. 96-159.
 Note.--
  Substantially reworded by s. 35, ch. 96-159.

  120.569 Decisions which affect substantial interests.--
 (1) The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an
agency, unless the parties are proceeding under s. 120.573 or s. 120.574. Unless waived by all parties, s. 120.57(1) applies
whenever the proceeding involves a disputed issue of material fact. Unless otherwise agreed, s. 120.57(2) applies in all other
cases. Parties shall be notified of any order, including a final order. Unless waived, a copy of the order shall be delivered or
mailed to each party or the party's attorney of record at the address of record. Each notice shall inform the recipient of any
administrative hearing or judicial review that is available under this section, s. 120.57, or s. 120.68; shall indicate the
procedure which must be followed to obtain the hearing or judicial review; and shall state the time limits which apply.
 (2)(a) Except for any proceeding conducted as prescribed in s. 120.56, a petition or request for a hearing under this section
shall be filed with the agency. If the agency requests an administrative law judge from the division, it shall so notify the
division within 15 days after receipt of the petition or request. A request for a hearing shall be granted or denied within 15
days after receipt. On the request of any agency, the division shall assign an administrative law judge with due regard to the
expertise required for the particular matter. The referring agency shall take no further action with respect to the formal
proceeding, except as a party litigant, as long as the division has jurisdiction over the formal proceeding. Any party may
request the disqualification of the administrative law judge by filing an affidavit with the division prior to the taking of
evidence at a hearing, stating the grounds with particularity.
   (b) All parties shall be afforded an opportunity for a hearing after reasonable notice of not less than 14 days; however, the
14-day notice requirement may be waived with the consent of all parties. The notice shall include:
     1. A statement of the time, place, and nature of the hearing.
     2. A statement of the legal authority and jurisdiction under which the hearing is to be held.
   (c) All pleadings, motions, or other papers filed in the proceeding must be signed by the party, the party's attorney, or the
party's qualified representative. The signature constitutes a certificate that the person has read the pleading, motion, or other
paper and that, based upon reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause
unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other paper
is signed in violation of these requirements, the presiding officer shall impose upon the person who signed it, the represented
party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable
expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
   (d) The presiding officer has the power to swear witnesses and take their testimony under oath, to issue subpoenas, and to
effect discovery on the written request of any party by any means available to the courts and in the manner provided in the
Florida Rules of Civil Procedure, including the imposition of sanctions, except contempt. However, no presiding officer has
the authority to issue any subpoena or order directing discovery to any member or employee of the Legislature when the
subpoena or order commands the production of documents or materials or compels testimony relating to the legislative duties
of the member or employee. Any subpoena or order directing discovery directed to a member or an employee of the
Legislature shall show on its face that the testimony sought does not relate to legislative duties.
   (e) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly
relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence
would be admissible in a trial in the courts of Florida. Any part of the evidence may be received in written form, and all
testimony of parties and witnesses shall be made under oath.
   (f) Documentary evidence may be received in the form of a copy or excerpt. Upon request, parties shall be given an
opportunity to compare the copy with the original, if available.
   (g) When official recognition is requested, the parties shall be notified and given an opportunity to examine and contest the
material.
   (h) A party shall be permitted to conduct cross-examination when testimony is taken or documents are made a part of the
record.
   (i) 1. Any person subject to a subpoena may, before compliance and on timely petition, request the presiding officer having
jurisdiction of the dispute to invalidate the subpoena on the ground that it was not lawfully issued, is unreasonably broad in
scope, or requires the production of irrelevant material.
     2. A party may seek enforcement of a subpoena, order directing discovery, or order imposing sanctions issued under the
authority of this chapter by filing a petition for enforcement in the circuit court of the judicial circuit in which the person
failing to comply with the subpoena or order resides. A failure to comply with an order of the court shall result in a finding

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of contempt of court. However, no person shall be in contempt while a subpoena is being challenged under subparagraph 1.
The court may award to the prevailing party all or part of the costs and attorney's fees incurred in obtaining the court order
whenever the court determines that such an award should be granted under the Florida Rules of Civil Procedure.
    3. Any public employee subpoenaed to appear at an agency proceeding shall be entitled to per diem and travel expenses at
the same rate as that provided for state employees under s. 112.061 if travel away from such public employee's headquarters
is required. All other witnesses appearing pursuant to a subpoena shall be paid such fees and mileage for their attendance as
is provided in civil actions in circuit courts of this state. In the case of a public employee, such expenses shall be processed
and paid in the manner provided for agency employee travel expense reimbursement, and in the case of a witness who is not
a public employee, payment of such fees and expenses shall accompany the subpoena.
  (j) Unless the time period is waived or extended with the consent of all parties, the final order in a proceeding which affects
substantial interests must be in writing and include findings of fact, if any, and conclusions of law separately stated, and it
must be rendered within 90 days:
    1. After the hearing is concluded, if conducted by the agency;
    2. After a recommended order is submitted to the agency and mailed to all parties, if the hearing is conducted by an
administrative law judge; or
    3. After the agency has received the written and oral material it has authorized to be submitted, if there has been no
hearing.
  (k) Findings of fact, if set forth in a manner which is no more than mere tracking of the statutory language, must be
accompanied by a concise and explicit statement of the underlying facts of record which support the findings.
  (l) If an agency head finds that an immediate danger to the public health, safety, or welfare requires an immediate final
order, it shall recite with particularity the facts underlying such finding in the final order, which shall be appealable or
enjoinable from the date rendered.
  History.--
  s. 18, ch. 96-159.

  120.573 Mediation of disputes.--
Each announcement of an agency action that affects substantial interests shall advise whether mediation of the administrative
dispute for the type of agency action announced is available and that choosing mediation does not affect the right to an
administrative hearing. If the agency and all parties to the administrative action agree to mediation, in writing, within the
time period stated in the announcement for election of an administrative remedy under ss. 120.569 and 120.57, the time
limitations imposed by ss. 120.569 and 120.57 shall be tolled to allow the agency and parties to mediate the administrative
dispute. The mediation shall be concluded within 60 days of such agreement unless otherwise agreed by the parties. The
mediation agreement shall include provisions for mediator selection, the allocation of costs and fees associated with
mediation, and the mediating parties' understanding regarding the confidentiality of discussions and documents introduced
during mediation. If mediation results in settlement of the administrative dispute, the agency shall enter a final order
incorporating the agreement of the parties. If mediation terminates without settlement of the dispute, the agency shall notify
the parties in writing that the administrative hearing processes under ss. 120.569 and 120.57 remain available for disposition
of the dispute and the notice shall state with particularity the deadlines for challenging the agency action and electing
remedies under ss. 120.569 and 120.57.
  History.--
   s. 20, ch. 96-159.

  120.574 Summary hearing.--
 (1)(a) Within 5 business days following the division's receipt of a petition or request for hearing, the division shall issue and
serve on all original parties an initial order that assigns the case to a specific administrative law judge and provides general
information regarding practice and procedure before the division. The initial order shall also contain a statement advising the
addressees that a summary hearing is available upon the agreement of all parties under subsection (2) and briefly describing
the expedited time sequences, limited discovery, and final order provisions of the summary procedure.
   (b) Within 15 days after service of the initial order, any party may file with the division a motion for summary hearing in
accordance with subsection (2). If all original parties agree, in writing, to the summary proceeding, the proceeding shall be
conducted within 30 days of the agreement, in accordance with the provisions of subsection (2).
  (c) Intervenors in the proceeding shall be governed by the decision of the administrative law judge regarding whether the
case will proceed in accordance with the summary hearing process and shall not have standing to challenge that decision.
   (d) If a motion for summary hearing is not filed within 15 days after service of the division's initial order, the matter shall
proceed in accordance with ss. 120.569 and 120.57.
 (2) In any case to which this subsection is applicable, the following procedures apply:
   (a) Motions shall be limited to the following:
    1. A motion in opposition to the petition.

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    2. A motion requesting discovery beyond the informal exchange of documents and witness lists described in paragraph
(b). Upon a showing of necessity, additional discovery may be permitted in the discretion of the administrative law judge,
but only if it can be completed not later than 5 days prior to the final hearing.
    3. A motion for continuance of the final hearing date.
    4. A motion requesting a prehearing conference, or the administrative law judge may require a prehearing conference, for
the purpose of identifying: the legal and factual issues to be considered at the final hearing; the names and addresses of
witnesses who may be called to testify at the final hearing; documentary evidence that will be offered at the final hearing; the
range of penalties that may be imposed upon final hearing; and any other matter that the administrative law judge determines
would expedite resolution of the proceeding. The prehearing conference may be held by telephone conference call.
    5. During or after any preliminary hearing or conference, any party or the administrative law judge may suggest that the
case is no longer appropriate for summary disposition. Following any argument requested by the parties, the administrative
law judge may enter an order referring the case back to the formal adjudicatory process described in s. 120.57(1), in which
event the parties shall proceed accordingly.
  (b) Not later than 5 days prior to the final hearing, the parties shall furnish to each other copies of documentary evidence
and lists of witnesses who may testify at the final hearing.
  (c) All parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to conduct
cross-examination and submit rebuttal evidence, and to be represented by counsel or other qualified representative.
  (d) The record in a case governed by this subsection shall consist only of:
    1. All notices, pleadings, motions, and intermediate rulings.
    2. Evidence received.
    3. A statement of matters officially recognized.
    4. Proffers of proof and objections and rulings thereon.
    5. Matters placed on the record after an ex parte communication.
    6. The written decision of the administrative law judge presiding at the final hearing.
    7. The official transcript of the final hearing.
  (e) The agency shall accurately and completely preserve all testimony in the proceeding and, upon request by any party,
shall make a full or partial transcript available at no more than actual cost.
  (f) The decision of the administrative law judge shall be rendered within 30 days after the conclusion of the final hearing or
the filing of the transcript thereof, whichever is later. The administrative law judge's decision, which shall be final agency
action subject to judicial review under s. 120.68, shall include the following:
    1. Findings of fact based exclusively on the evidence of record and matters officially recognized.
    2. Conclusions of law.
    3. Imposition of a fine or penalty, if applicable.
    4. Any other information required by law or rule to be contained in a final order.
  (g) For a period of 2 years following October 1, 1996, the division shall maintain a register of the total number of formal
proceedings filed with the division under s. 120.57(1).
  History.--
  s. 21, ch. 96-159.

 120.575 Taxpayer contest proceedings.--
[Repealed by s. 22, ch. 96-159.]

 120.58 Agency action; evidence, record and subpoenas.--
[Repealed by s. 23, ch. 96-159.]

 120.59 Orders.--
[Repealed by s. 24, ch. 96-159.]

  120.595 Attorney's fees.--
 (1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION 120.57(1).--
   (a) The provisions of this subsection are supplemental to, and do not abrogate, other provisions allowing the award of fees
or costs in administrative proceedings.
   (b) The final order in a proceeding pursuant to s. 120.57(1) shall award reasonable costs and a reasonable attorney's fee to
the prevailing party only where the nonprevailing adverse party has been determined by the administrative law judge to have
participated in the proceeding for an improper purpose.
  (c) In proceedings pursuant to s. 120.57(1), and upon motion, the administrative law judge shall determine whether any
party participated in the proceeding for an improper purpose as defined by this subsection and s. 120.569(2)(c). In making
such determination, the administrative law judge shall consider whether the nonprevailing adverse party has participated in

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two or more other such proceedings involving the same prevailing party and the same project as an adverse party and in
which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its
position, and shall consider whether the factual or legal position asserted in the instant proceeding would have been
cognizable in the previous proceedings. In such event, it shall be rebuttably presumed that the nonprevailing adverse party
participated in the pending proceeding for an improper purpose.
  (d) In any proceeding in which the administrative law judge determines that a party participated in the proceeding for an
improper purpose, the recommended order shall so designate and shall determine the award of costs and attorney's fees.
  (e) For the purpose of this subsection:
    1. "Improper purpose" means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause
unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an
activity.
    2. "Costs" has the same meaning as the costs allowed in civil actions in this state as provided in chapter 57.
    3. "Nonprevailing adverse party" means a party that has failed to have substantially changed the outcome of the proposed
or final agency action which is the subject of a proceeding. In the event that a proceeding results in any substantial
modification or condition intended to resolve the matters raised in a party's petition, it shall be determined that the party
having raised the issue addressed is not a nonprevailing adverse party. The recommended order shall state whether the
change is substantial for purposes of this subsection. In no event shall the term "nonprevailing party" or "prevailing party" be
deemed to include any party that has intervened in a previously existing proceeding to support the position of an agency.
 (2) CHALLENGES TO PROPOSED AGENCY RULES PURSUANT TO SECTION 120.56(2).--If the court or
administrative law judge declares a proposed rule or portion of a proposed rule invalid pursuant to s. 120.56(2), a judgment
or order shall be rendered against the agency for reasonable costs and reasonable attorney's fees, unless the agency
demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust.
An agency's actions are "substantially justified" if there was a reasonable basis in law and fact at the time the actions were
taken by the agency. If the agency prevails in the proceedings, the court or administrative law judge shall award reasonable
costs and reasonable attorney's fees against a party if the court or administrative law judge determines that a party
participated in the proceedings for an improper purpose as defined by paragraph (1)(e). No award of attorney's fees as
provided by this subsection shall exceed $15,000.
 (3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO SECTION 120.56(3).--If the court or
administrative law judge declares a rule or portion of a rule invalid pursuant to s. 120.56(3), a judgment or order shall be
rendered against the agency for reasonable costs and reasonable attorney's fees, unless the agency demonstrates that its
actions were substantially justified or special circumstances exist which would make the award unjust. An agency's actions
are "substantially justified" if there was a reasonable basis in law and fact at the time the actions were taken by the agency.
If the agency prevails in the proceedings, the court or administrative law judge shall award reasonable costs and reasonable
attorney's fees against a party if the court or administrative law judge determines that a party participated in the proceedings
for an improper purpose as defined by paragraph (1)(e). No award of attorney's fees as provided by this subsection shall
exceed $15,000.
 (4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION 120.56(4).--
  (a) Upon entry of a final order that all or part of an agency statement violates s. 120.54(1)(a), the administrative law judge
shall award reasonable costs and reasonable attorney's fees to the petitioner.
  (b) Notwithstanding the provisions of chapter 284, an award shall be paid from the budget entity of the secretary, executive
director, or equivalent administrative officer of the agency, and the agency shall not be entitled to payment of an award or
reimbursement for payment of an award under any provision of law.
 (5) APPEALS.--When there is an appeal, the court in its discretion may award reasonable attorney's fees and reasonable
costs to the prevailing party if the court finds that the appeal was frivolous, meritless, or an abuse of the appellate process, or
that the agency action which precipitated the appeal was a gross abuse of the agency's discretion. Upon review of agency
action that precipitates an appeal, if the court finds that the agency improperly rejected or modified findings of fact in a
recommended order, the court shall award reasonable attorney's fees and reasonable costs to a prevailing appellant for the
administrative proceeding and the appellate proceeding.
  History.--
  s. 25, ch. 96-159.

  120.60 Licensing.--
 (1) Upon receipt of an application for a license, an agency shall examine the application and, within 30 days after such
receipt, notify the applicant of any apparent errors or omissions and request any additional information the agency is
permitted by law to require. An agency shall not deny a license for failure to correct an error or omission or to supply
additional information unless the agency timely notified the applicant within this 30-day period. An application shall be
considered complete upon receipt of all requested information and correction of any error or omission for which the
applicant was timely notified or when the time for such notification has expired. Every application for a license shall be

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approved or denied within 90 days after receipt of a completed application unless a shorter period of time for agency action
is provided by law. The 90-day time period shall be tolled by the initiation of a proceeding under ss. 120.569 and 120.57.
An application for a license must be approved or denied within the 90-day or shorter time period, within 15 days after the
conclusion of a public hearing held on the application, or within 45 days after a recommended order is submitted to the
agency and the parties, whichever is later. The agency must approve any application for a license or for an examination
required for licensure if the agency has not approved or denied the application within the time periods prescribed by this
subsection.
 (2) If an applicant seeks a license for an activity that is exempt from licensure, the agency shall notify the applicant and
return any tendered application fee within 30 days after receipt of the original application.
 (3) Each applicant shall be given written notice either personally or by mail that the agency intends to grant or deny, or has
granted or denied, the application for license. Unless waived, a copy of the notice shall be delivered or mailed to each party's
attorney of record and to each person who has requested notice of agency action. Each notice shall inform the recipient of the
basis for the agency decision, shall inform the recipient of any administrative hearing pursuant to ss. 120.569 and 120.57 or
judicial review pursuant to s. 120.68 which may be available, shall indicate the procedure which must be followed, and shall
state the applicable time limits. The issuing agency shall certify the date the notice was mailed or delivered, and the notice
and the certification shall be filed with the agency clerk.
 (4) When a licensee has made timely and sufficient application for the renewal of a license which does not automatically
expire by statute, the existing license shall not expire until the application for renewal has been finally acted upon by the
agency or, in case the application is denied or the terms of the license are limited, until the last day for seeking review of the
agency order or a later date fixed by order of the reviewing court.
 (5) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the entry of a final order,
the agency has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to
the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate
opportunity to request a proceeding pursuant to ss. 120.569 and 120.57. When personal service cannot be made and the
certified mail notice is returned undelivered, the agency shall cause a short, plain notice to the licensee to be published once
each week for 4 consecutive weeks in a newspaper published in the county of the licensee's last known address as it appears
on the records of the agency. If no newspaper is published in that county, the notice may be published in a newspaper of
general circulation in that county. If the address is in some state other than this state or in a foreign territory or country, the
notice may be published in Leon County.
 (6) If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension,
restriction, or limitation of a license, it shall show compliance in its order with the requirements imposed by s. 120.54(4) on
agencies making emergency rules. Summary suspension, restriction, or limitation may be ordered, but a suspension or
revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon.
 (7) No agency shall include as a condition of approval of any license any provision that is based upon a statement, policy, or
guideline of another agency unless the statement, policy, or guideline is within the jurisdiction of the other agency. The other
agency shall identify for the licensing agency the specific legal authority for each such statement, policy, or guideline. The
licensing agency must provide the licensee with an opportunity to challenge the condition as invalid. If the licensing agency
bases a condition of approval or denial of the license upon the statement, policy, or guideline of the other agency, any party
to an administrative proceeding that arises from the approval with conditions or denial of the license may require the other
agency to join as a party in determining the validity of the condition.
  History.--
  s. 1, ch. 74-310; s. 10, ch. 76-131; s. 1, ch. 77-174; ss. 6, 9, ch. 77-453; s. 57, ch. 78-95; s. 8, ch. 78-425; s. 1, ch. 79-142;
s. 6, ch. 79-299; s. 2, 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.

 120.61 Official recognition.--
[Repealed by s. 27, ch. 96-159.]

  120.62 Agency investigations.--
 (1) Every person who responds to a request or demand by any agency or representative thereof for written data or an oral
statement shall be entitled to a transcript or recording of his or her oral statement at no more than cost.
 (2) Any person compelled to appear, or who appears voluntarily, before any presiding officer or agency in an investigation
or in any agency proceeding has the right, at his or her own expense, to be accompanied, represented, and advised by counsel
or by other qualified representatives.
  History.--
  s. 1, ch. 74-310; s. 763, ch. 95-147; s. 28, ch. 96-159.

 120.63 Exemption from act.--

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 (1) Upon application of any agency, the Administration Commission may exempt any process or proceeding governed by
this act from one or more requirements of this act:
  (a) When the agency head has certified that the requirement would conflict with any provision of federal law or rules with
which the agency must comply;
  (b) In order to permit persons in the state to receive tax benefits or federal funds under any federal law; or
  (c) When the commission has found that conformity with the requirements of the part or parts of this act for which
exemption is sought would be so inconvenient or impractical as to defeat the purpose of the agency proceeding involved or
the purpose of this act and would not be in the public interest in light of the nature of the intended action and the enabling act
or other laws affecting the agency.
 (2) The commission may not exempt an agency from any requirement of this act pursuant to this section until it establishes
alternative procedures to achieve the agency's purpose which shall be consistent, insofar as possible, with the intent and
purpose of the act.
  (a) Prior to the granting of any exemption authorized by this section, the commission shall hold a public hearing after
notice given as provided in s. 120.525. Upon the conclusion of the hearing, the commission, through the Executive Office of
the Governor, shall issue an order specifically granting or denying the exemption and specifying any processes or
proceedings exempted and the extent of the exemption; transmit to the committee and to the Department of State a copy of
the petition, a certified copy of the order granting or denying the petition, and a copy of any alternative procedures
prescribed; and give notice of the petition and the commission's response in the Florida Administrative Weekly.
  (b) An exemption and any alternative procedure prescribed shall terminate 90 days following adjournment sine die of the
then-current or next regular legislative session after issuance of the exemption order, or upon the effective date of any
subsequent legislation incorporating the exemption or any partial exemption related thereto, whichever is earlier. The
exemption granted by the commission shall be renewable upon the same or similar facts not more than once. Such renewal
shall terminate as would an original exemption.
  History.--
  s. 1, ch. 74-310; s. 11, ch. 76-131; s. 1, ch. 77-53; s. 8, ch. 77-453; 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.

 120.633 Division of Pari-mutuel Wagering; partial exemption from hearing and notice requirements.--
[Repealed by s. 30, ch. 96-159.]

  120.65 Administrative law judges.--
 (1) The Division of Administrative Hearings within the Department of Management Services shall be headed by a director
who shall be appointed by the Administration Commission and confirmed by the Senate. The division shall be a separate
budget entity, and the director shall be its agency head for all purposes. The Department of Management Services shall
provide administrative support and service to the division to the extent requested by the director. The division shall not be
subject to control, supervision, or direction by the Department of Management Services in any manner, including, but not
limited to, personnel, purchasing, transactions involving real or personal property, and budgetary matters.
 (2) The director has the right to appeal actions by the Executive Office of the Governor that affect amendments to the
division's approved operating budget or any personnel actions pursuant to chapter 216 to the Administration Commission,
which shall decide such issue by majority vote. The appropriations committees may advise the Administration Commission
on the issue. If the President of the Senate and the Speaker of the House of Representatives object in writing to the effects of
the appeal, the appeal may be affirmed by the affirmative vote of two-thirds of the commission members present. The failure
of the Executive Office of the Governor to act on a request for action by the director within 21 days after receiving a written
request constitutes approval of the request.
 (3) Each state agency as defined in chapter 216 and each political subdivision shall make its facilities available, at a time
convenient to the provider, for use by the division in conducting proceedings pursuant to this chapter.
 (4) The division shall employ administrative law judges to conduct hearings required by this chapter or other law. Any
person employed by the division as an administrative law judge must have been a member of The Florida Bar in good
standing for the preceding 5 years.
 (5) If the division cannot furnish a division administrative law judge promptly in response to an agency request, the director
shall designate in writing a qualified full-time employee of an agency other than the requesting agency to conduct the
hearing. The director shall have the discretion to designate such a hearing officer who is located in that part of the state
where the parties and witnesses reside.
 (6) By rule, the division may establish:
   (a) Further qualifications for administrative law judges and shall establish procedures by which candidates will be
considered for employment or contract.
   (b) The manner in which public notice will be given of vacancies in the staff of administrative law judges.
   (c) Procedures for the assignment of administrative law judges.

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 (7) The division is authorized to provide administrative law judges on a contract basis to any governmental entity to conduct
any hearing not covered by this section.
 (8) The division shall have the authority to adopt reasonable rules to carry out the provisions of this act.
 (9) Rules promulgated by the division may authorize any reasonable sanctions except contempt for violation of the rules of
the division or failure to comply with a reasonable order issued by an administrative law judge, which is not under judicial
review.
 (10) Not later than February 1 of each year, the division shall issue a written report to the Administrative Procedures
Committee and the Administration Commission, including at least the following information:
  (a) A summary of the extent and effect of agencies' utilization of administrative law judges, court reporters, and other
personnel in proceedings under this chapter.
  (b) Recommendations for change or improvement in the Administrative Procedure Act or any agency's practice or policy
with respect thereto.
  History.--
  s. 1, ch. 74-310; s. 9, ch. 75-191; s. 14, ch. 76-131; s. 9, ch. 78-425; 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. 95-147;
s. 31, ch. 96-159.

  120.655 Withholding funds to pay for administrative law judge services to school boards.--
If a district school board fails to make a timely payment for the services provided by an administrative law judge of the
Division of Administrative Hearings as provided annually in the General Appropriations Act, the Commissioner of
Education shall withhold, from any general revenue funds the district is eligible to receive, an amount sufficient to pay for
the administrative law judge's services. The commissioner shall transfer the amount withheld to the Division of
Administrative Hearings in payment of such services.
  History.--
   s. 1, ch. 92-121; s. 32, ch. 96-159.

  120.66 Ex parte communications.--
 (1) In any proceeding under ss. 120.569 and 120.57, no ex parte communication relative to the merits, threat, or offer of
reward shall be made to the agency head, after the agency head has received a recommended order, or to the presiding officer
by:
   (a) An agency head or member of the agency or any other public employee or official engaged in prosecution or advocacy
in connection with the matter under consideration or a factually related matter.
   (b) A party to the proceeding, the party's authorized representative or counsel, or any person who, directly or indirectly,
would have a substantial interest in the proposed agency action.
Nothing in this subsection shall apply to advisory staff members who do not testify on behalf of the agency in the proceeding
or to any rulemaking proceedings under s. 120.54.
 (2) A presiding officer who is involved in the decisional process and who receives an ex parte communication in violation of
subsection (1) shall place on the record of the pending matter all written communications received, all written responses to
such communications, and a memorandum stating the substance of all oral communications received and all oral responses
made, and shall also advise all parties that such matters have been placed on the record. Any party desiring to rebut the ex
parte communication shall be allowed to do so, if such party requests the opportunity for rebuttal within 10 days after notice
of such communication. The presiding officer may, if necessary to eliminate the effect of an ex parte communication,
withdraw from the proceeding, in which case the division shall assign a successor.
 (3) Any person who makes an ex parte communication prohibited by subsection (1), and any presiding officer who fails to
place in the record any such communication, is in violation of this act and may be assessed a civil penalty not to exceed $500
or be subjected to other disciplinary action.
  History.--
   s. 1, ch. 74-310; s. 10, ch. 75-191; s. 12, ch. 76-131; s. 1, ch. 77-174; s. 10, ch. 78-425; s. 765, ch. 95-147; s. 33, ch. 96-
159.

  120.665 Disqualification of agency personnel.--
 (1) Notwithstanding the provisions of s. 112.3143, any individual serving alone or with others as an agency head may be
disqualified from serving in an agency proceeding for bias, prejudice, or interest when any party to the agency proceeding
shows just cause by a suggestion filed within a reasonable period of time prior to the agency proceeding. If the disqualified
individual was appointed, the appointing power may appoint a substitute to serve in the matter from which the individual is
disqualified. If the individual is an elected official, the Governor may appoint a substitute to serve in the matter from which
the individual is disqualified. However, if a quorum remains after the individual is disqualified, it shall not be necessary to
appoint a substitute.

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 (2) Any agency action taken by a duly appointed substitute for a disqualified individual shall be as conclusive and effective
as if agency action had been taken by the agency as it was constituted prior to any substitution.
  History.--
  s. 1, ch. 74-310; s. 12, ch. 78-425; s. 2, ch. 83-329; s. 767, ch. 95-147; s. 34, ch. 96-159.
  Note.--
  Former s. 120.71.

  120.68 Judicial review.--
 (1) A party who is adversely affected by final agency action is entitled to judicial review. A preliminary, procedural, or
intermediate order of the agency or of an administrative law judge of the Division of Administrative Hearings is immediately
reviewable if review of the final agency decision would not provide an adequate remedy.
 (2)(a) Judicial review shall be sought in the appellate district where the agency maintains its headquarters or where a party
resides or as otherwise provided by law. All proceedings shall be instituted by filing a notice of appeal or petition for review
in accordance with the Florida Rules of Appellate Procedure within 30 days after the rendition of the order being appealed. If
the appeal is of an order rendered in a proceeding initiated under s. 120.56, the agency whose rule is being challenged shall
transmit a copy of the notice of appeal to the committee.
   (b) When proceedings under this chapter are consolidated for final hearing and the parties to the consolidated proceeding
seek review of final or interlocutory orders in more than one district court of appeal, the courts of appeal are authorized to
transfer and consolidate the review proceedings. The court may transfer such appellate proceedings on its own motion, upon
motion of a party to one of the appellate proceedings, or by stipulation of the parties to the appellate proceedings. In
determining whether to transfer a proceeding, the court may consider such factors as the interrelationship of the parties and
the proceedings, the desirability of avoiding inconsistent results in related matters, judicial economy, and the burden on the
parties of reproducing the record for use in multiple appellate courts.
 (3) The filing of a notice or petition does not stay enforcement of the agency decision. The agency may grant a stay upon
appropriate terms, but a petition to the agency for a stay is not a prerequisite to a petition to the court for supersedeas.
Subject to the Florida Rules of Appellate Procedure, no stay or supersedeas shall be in effect until the party seeking relief
files a petition for stay and the agency or court enters an order granting such relief. The order shall specify the conditions, if
any, upon which the stay or supersedeas is granted. Where the agency decision has the effect of suspending or revoking a
license, a stay shall be granted as a matter of right upon such conditions as are reasonable, unless the agency demonstrates
that a stay would constitute a probable danger to the public health, safety, or welfare.
 (4) Judicial review of any agency action shall be confined to the record transmitted and any additions made thereto in
accordance with paragraph (7)(a).
 (5) The record for judicial review shall be compiled in accordance with the Florida Rules of Appellate Procedure.
 (6)(a) The reviewing court's decision may be mandatory, prohibitory, or declaratory in form, and it shall provide whatever
relief is appropriate irrespective of the original form of the petition. The court may:
    1. Order agency action required by law; order agency exercise of discretion when required by law; set aside agency
action; remand the case for further agency proceedings; or decide the rights, privileges, obligations, requirements, or
procedures at issue between the parties; and
    2. Order such ancillary relief as the court finds necessary to redress the effects of official action wrongfully taken or
withheld.
   (b) If the court sets aside agency action or remands the case to the agency for further proceedings, it may make such
interlocutory order as the court finds necessary to preserve the interests of any party and the public pending further
proceedings or agency action.
 (7) The court shall remand a case to the agency for further proceedings consistent with the court's decision or set aside
agency action, as appropriate, when it finds that:
   (a) There has been no hearing prior to agency action and the reviewing court finds that the validity of the action depends
upon disputed facts;
   (b) The agency's action depends on any finding of fact that is not supported by competent, substantial evidence in the
record of a hearing conducted pursuant to ss. 120.569 and 120.57; however, the court shall not substitute its judgment for
that of the agency as to the weight of the evidence on any disputed finding of fact;
   (c) The fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure
or a failure to follow prescribed procedure;
   (d) The agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action; or
   (e) The agency's exercise of discretion was:
    1. Outside the range of discretion delegated to the agency by law;
    2. Inconsistent with agency rule;
    3. Inconsistent with officially stated agency policy or a prior agency practice, if deviation therefrom is not explained by
the agency; or

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    4. Otherwise in violation of a constitutional or statutory provision;
but the court shall not substitute its judgment for that of the agency on an issue of discretion.
 (8) Unless the court finds a ground for setting aside, modifying, remanding, or ordering agency action or ancillary relief
under a specified provision of this section, it shall affirm the agency's action.
 (9) No petition challenging an agency rule as an invalid exercise of delegated legislative authority shall be instituted
pursuant to this section, except to review an order entered pursuant to a proceeding under s. 120.56, unless the sole issue
presented by the petition is the constitutionality of a rule and there are no disputed issues of fact.
 (10) If an administrative law judge's final order depends on any fact found by the administrative law judge, the court shall
not substitute its judgment for that of the administrative law judge as to the weight of the evidence on any disputed finding of
fact. The court shall, however, set aside the final order of the administrative law judge or remand the case to the
administrative law judge, if it finds that the final order depends on any finding of fact that is not supported by competent
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; 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.

  120.69 Enforcement of agency action.--
 (1) Except as otherwise provided by statute:
   (a) Any agency may seek enforcement of an action by filing a petition for enforcement, as provided in this section, in the
circuit court where the subject matter of the enforcement is located.
   (b) A petition for enforcement of any agency action may be filed by any substantially interested person who is a resident of
the state. However, no such action may be commenced:
    1. Prior to 60 days after the petitioner has given notice of the violation of the agency action to the head of the agency
concerned, the Attorney General, and any alleged violator of the agency action.
    2. If an agency has filed, and is diligently prosecuting, a petition for enforcement.
   (c) A petition for enforcement filed by a nongovernmental person shall be in the name of the State of Florida on the
relation of the petitioner, and the doctrines of res judicata and collateral estoppel shall apply.
   (d) In an action brought under paragraph (b), the agency whose action is sought to be enforced, if not a party, may
intervene as a matter of right.
 (2) A petition for enforcement may request declaratory relief; temporary or permanent equitable relief; any fine, forfeiture,
penalty, or other remedy provided by statute; any combination of the foregoing; or, in the absence of any other specific
statutory authority, a fine not to exceed $1,000.
 (3) After the court has rendered judgment on a petition for enforcement, no other petition shall be filed or adjudicated
against the same agency action, on the basis of the same transaction or occurrence, unless expressly authorized on remand.
The doctrines of res judicata and collateral estoppel shall apply, and the court shall make such orders as are necessary to
avoid multiplicity of actions.
 (4) In all enforcement proceedings:
   (a) If enforcement depends on any facts other than those appearing in the record, the court may ascertain such facts under
procedures set forth in s. 120.68(7)(a).
   (b) If one or more petitions for enforcement and a petition for review involving the same agency action are pending at the
same time, the court considering the review petition may order all such actions transferred to and consolidated in one court.
Each party shall be under an affirmative duty to notify the court when it becomes aware of multiple proceedings.
   (c) Should any party willfully fail to comply with an order of the court, the court shall punish that party in accordance with
the law applicable to contempt committed by a person in the trial of any other action.
 (5) In any enforcement proceeding the respondent may assert as a defense the invalidity of any relevant statute, the
inapplicability of the administrative determination to respondent, compliance by the respondent, the inappropriateness of the
remedy sought by the agency, or any combination of the foregoing. In addition, if the petition for enforcement is filed during
the time within which the respondent could petition for judicial review of the agency action, the respondent may assert the
invalidity of the agency action.
 (6) Notwithstanding any other provision of this section, upon receipt of evidence that an alleged violation of an agency's
action presents an imminent and substantial threat to the public health, safety, or welfare, the agency may bring suit for
immediate temporary relief in an appropriate circuit court, and the granting of such temporary relief shall not have res
judicata or collateral estoppel effect as to further relief sought under a petition for enforcement relating to the same violation.
 (7) In any final order on a petition for enforcement the court may award to the prevailing party all or part of the costs of
litigation and reasonable attorney's fees and expert witness fees, whenever the court determines that such an award is
appropriate.
  History.--
   s. 1, ch. 74-310; s. 766, ch. 95-147; s. 36, ch. 96-159.

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 120.695 Notice of noncompliance.--
  (1) It is the policy of the state that the purpose of regulation is to protect the public by attaining compliance with the
policies established by the Legislature. Fines and other penalties may be provided in order to assure compliance; however,
the collection of fines and the imposition of penalties are intended to be secondary to the primary goal of attaining
compliance with an agency's rules. It is the intent of the Legislature that an agency charged with enforcing rules shall issue a
notice of noncompliance as its first response to a minor violation of a rule in any instance in which it is reasonable to assume
that the violator was unaware of the rule or unclear as to how to comply with it.
  (2)(a) Each agency shall issue a notice of noncompliance as a first response to a minor violation of a rule. A "notice of
noncompliance" is a notification by the agency charged with enforcing the rule issued to the person or business subject to the
rule. A notice of noncompliance may not be accompanied with a fine or other disciplinary penalty. It must identify the
specific rule that is being violated, provide information on how to comply with the rule, and specify a reasonable time for the
violator to comply with the rule. A rule is agency action that regulates a business, occupation, or profession, or regulates a
person operating a business, occupation, or profession, and that, if not complied with, may result in a disciplinary penalty.
  (b) Each agency shall review all of its rules and designate those for which a violation would be a minor violation and for
which a notice of noncompliance must be the first enforcement action taken against a person or business subject to
regulation. A violation of a rule is a minor violation if it does not result in economic or physical harm to a person or
adversely affect the public health, safety, or welfare or create a significant threat of such harm. If an agency under the
direction of a cabinet officer mails to each licensee a notice of the designated rules at the time of licensure and at least
annually thereafter, the provisions of paragraph (a) may be exercised at the discretion of the agency. Such notice shall
include a subject-matter index of the rules and information on how the rules may be obtained.
  (c) The agency's review and designation must be completed by December 1, 1995; each agency under the direction of the
Governor shall make a report to the Governor, and each agency under the joint direction of the Governor and Cabinet shall
report to the Governor and Cabinet by January 1, 1996, on which of its rules have been designated as rules the violation of
which would be a minor violation.
  (d) The Governor or the Governor and Cabinet, as appropriate pursuant to paragraph (c), may evaluate the review and
designation effects of each agency and may apply a different designation than that applied by the agency.
  (e) This section does not apply to the regulation of law enforcement personnel or teachers.
  (f) Designation pursuant to this section is not subject to challenge under this chapter.
 History.--
  s. 1, ch. 95-402.

 120.70 Annual report.--
[Repealed by s. 37, ch. 96-159.]

 120.71 Disqualification of agency personnel.--
[Amended and transferred to s. 120.665 by s. 34, ch. 96-159.]

 120.72 Legislative intent; references to chapter 120 or portions thereof.--
Unless expressly provided otherwise, a reference in any section of the Florida Statutes to chapter 120 or to any section or
sections or portion of a section of chapter 120 includes, and shall be understood as including, all subsequent amendments to
chapter 120 or to the referenced section or sections or portions of a section.
 History.--
  s. 3, ch. 74-310; s. 1, ch. 76-207; s. 1, ch. 77-174; s. 57, ch. 78-95; s. 13, ch. 78-425; s. 38, ch. 96-159.

 120.721 Effect of ch. 75-22 on rules.--
[Repealed by s. 39, ch. 96-159.]

 120.722 Legislative intent of ch. 78-95.--
[Repealed by s. 40, ch. 96-159.]

 120.73 Circuit court proceedings; declaratory judgments.--
   Nothing in this chapter shall be construed to repeal any provision of the Florida Statutes which grants the right to a
proceeding in the circuit court in lieu of an administrative hearing or to divest the circuit courts of jurisdiction to render
declaratory judgments under the provisions of chapter 86.
 History.--
  s. 11, ch. 75-191; s. 14, ch. 78-425.


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  120.74 Agency review, revision, and report.--
 (1) Each agency shall review and revise its rules as often as necessary to ensure that its rules are correct and comply with
statutory requirements. Additionally, each agency shall perform a formal review of its rules every 2 years. In the annual
review, each agency must:
   (a) Identify and correct deficiencies in its rules;
   (b) Clarify and simplify its rules;
   (c) Delete obsolete or unnecessary rules;
   (d) Delete rules that are redundant of statutes;
   (e) Seek to improve efficiency, reduce paperwork, or decrease costs to government and the private sector; and
   (f) Contact agencies that have concurrent or overlapping jurisdiction to determine whether their rules can be coordinated to
promote efficiency, reduce paperwork, or decrease costs to government and the private sector.
 (2) Beginning October 1, 1997, and by October 1 of every other year thereafter, the head of each agency shall file a report
with the President of the Senate and the Speaker of the House of Representatives, with a copy to each appropriate standing
committee of the Legislature, which certifies that the agency has complied with the requirements of this subsection. The
report must specify any changes made to its rules as a result of the review and, when appropriate, recommend statutory
changes that will promote efficiency, reduce paperwork, or decrease costs to government and the private sector.
  History.--
   s. 46, ch. 96-399.

  120.80 Exceptions and special requirements; agencies.--
 (1) DIVISION OF ADMINISTRATIVE HEARINGS.--Notwithstanding s. 120.57(1)(a), a hearing in which the division is a
party shall not be conducted by an administrative law judge assigned by the division. An attorney assigned by the
Administration Commission shall be the hearing officer.
 (2) DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES.--
   (a) Agricultural marketing orders under chapter 573 or chapter 601 are not rules.
   (b) Notwithstanding s. 120.57(1)(a), hearings held by the Department of Agriculture and Consumer Services pursuant to
chapter 601 need not be conducted by an administrative law judge assigned by the division.
 (3) DEPARTMENT OF BANKING AND FINANCE.--
   (a) Notwithstanding s. 120.60(1), in proceedings for the issuance, denial, renewal, or amendment of a license or approval
of a merger pursuant to title XXXVIII:
    1. a. The Department of Banking and Finance shall have published in the Florida Administrative Weekly notice of the
application within 21 days after receipt.
    b. Within 21 days after publication of notice, any person may request a hearing. Failure to request a hearing within 21
days after notice constitutes a waiver of any right to a hearing. The Department of Banking and Finance or an applicant may
request a hearing at any time prior to the issuance of a final order. Hearings shall be conducted pursuant to ss. 120.569 and
120.57, except that the Department of Banking and Finance shall by rule provide for participation by the general public.
    2. Should a hearing be requested as provided by sub-subparagraph 1.b., the applicant or licensee shall publish at its own
cost a notice of the hearing in a newspaper of general circulation in the area affected by the application. The Department of
Banking and Finance may by rule specify the format and size of the notice.
    3. Notwithstanding s. 120.60(1), and except as provided in subparagraph 4., every application for license for a new bank,
new trust company, new credit union, or new savings and loan association shall be approved or denied within 180 days after
receipt of the original application or receipt of the timely requested additional information or correction of errors or
omissions. Any application for such a license or for acquisition of such control which is not approved or denied within the
180-day period or within 30 days after conclusion of a public hearing on the application, whichever is later, shall be deemed
approved subject to the satisfactory completion of conditions required by statute as a prerequisite to license and approval of
insurance of accounts for a new bank, a new savings and loan association, or a new credit union by the appropriate insurer.
    4. In the case of every application for license to establish a new bank, trust company, or capital stock savings association
in which a foreign national proposes to own or control 10 percent or more of any class of voting securities, and in the case of
every application by a foreign national for approval to acquire control of a bank, trust company, or capital stock savings
association, the Department of Banking and Finance shall request that a public hearing be conducted pursuant to ss. 120.569
and 120.57. Notice of such hearing shall be published by the applicant as provided in subparagraph 2. The failure of any
such foreign national to appear personally at the hearing shall be grounds for denial of the application. Notwithstanding the
provisions of s. 120.60(1) and subparagraph 3., every application involving a foreign national shall be approved or denied
within 1 year after receipt of the original application or any timely requested additional information or the correction of any
errors or omissions, or within 30 days after the conclusion of the public hearing on the application, whichever is later.
   (b) In any application for a license or merger pursuant to title XXXVIII which is referred by the agency to the division for
hearing, the administrative law judge shall complete and submit to the agency and to all parties a written report consisting of



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findings of fact and rulings on evidentiary matters. The agency shall allow each party at least 10 days in which to submit
written exceptions to the report.
 (4) DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION.--
  (a) Business regulation.--The Division of Pari-mutuel Wagering is exempt from the hearing and notice requirements of ss.
120.569 and 120.57(1)(a), but only for stewards, judges, and boards of judges when the hearing is to be held for the purpose
of the imposition of fines or suspensions as provided by rules of the Division of Pari-mutuel Wagering, but not for
revocations, and only upon violations of subparagraphs 1. through 6. The Division of Pari-mutuel Wagering shall adopt rules
establishing alternative procedures, including a hearing upon reasonable notice, for the following violations:
    1. Horse riding, harness riding, greyhound interference, and jai alai game actions in violation of chapter 550.
    2. Application and usage of drugs and medication to horses, greyhounds, and jai alai players in violation of chapter 550.
    3. Maintaining or possessing any device which could be used for the injection or other infusion of a prohibited drug to
horses, greyhounds, and jai alai players in violation of chapter 550.
    4. Suspensions under reciprocity agreements between the Division of Pari-mutuel Wagering and regulatory agencies of
other states.
    5. Assault or other crimes of violence on premises licensed for pari-mutuel wagering.
    6. Prearranging the outcome of any race or game.
  (b) Professional regulation.--Notwithstanding s. 120.57(1)(a), formal hearings may not be conducted by the Secretary of
Business and Professional Regulation, the director of the Agency for Health Care Administration, or a board or member of a
board within the Department of Business and Professional Regulation or the Agency for Health Care Administration for
matters relating to the regulation of professions, as defined by chapter 455.
 (5) FLORIDA LAND AND WATER ADJUDICATORY COMMISSION.--Notwithstanding the provisions of s.
120.57(1)(a), when the Florida Land and Water Adjudicatory Commission receives a notice of appeal pursuant to s. 380.07,
the commission shall notify the division within 60 days after receipt of the notice of appeal if the commission elects to
request the assignment of an administrative law judge.
 (6) DEPARTMENT OF LAW ENFORCEMENT.--Law enforcement policies and procedures of the Department of Law
Enforcement which relate to the following are not rules as defined by this chapter:
  (a) The collection, management, and dissemination of active criminal intelligence information and active criminal
investigative information; management of criminal investigations; and management of undercover investigations and the
selection, assignment, and fictitious identity of undercover personnel.
  (b) The recruitment, management, identity, and remuneration of confidential informants or sources.
  (c) Surveillance techniques, the selection of surveillance personnel, and electronic surveillance, including court-ordered
and consensual interceptions of communication conducted pursuant to chapter 934.
  (d) The safety and release of hostages.
  (e) The provision of security and protection to public figures.
  (f) The protection of witnesses.
 (7) *1 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES.--Notwithstanding s. 120.57(1)(a), hearings
conducted within the *1 Department of Health and Rehabilitative Services in the execution of those social and economic
programs administered by the former Division of Family Services of that *1 department prior to the reorganization effected
by chapter 75-48, Laws of Florida, need not be conducted by an administrative law judge assigned by the division.
 (8) DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES.--
  (a) Drivers' licenses.--
    1. Notwithstanding s. 120.57(1)(a), hearings regarding drivers' licensing pursuant to chapter 322 need not be conducted
by an administrative law judge assigned by the division.
    2. Notwithstanding s. 120.60(5), cancellation, suspension, or revocation of a driver's license shall be by personal delivery
to the licensee or by first-class mail as provided in s. 322.251.
  (b) Wrecker operators.--Notwithstanding s. 120.57(1)(a), hearings held by the Division of the Florida Highway Patrol of
the Department of Highway Safety and Motor Vehicles to deny, suspend, or remove a wrecker operator from participating in
the wrecker rotation system established by s. 321.051 need not be conducted by an administrative law judge assigned by the
division. These hearings shall be held by a hearing officer appointed by the director of the Division of the Florida Highway
Patrol.
 (9) DEPARTMENT OF INSURANCE.--Notwithstanding s. 120.60(1), every application for a certificate of authority as
required by s. 624.401 shall be approved or denied within 180 days after receipt of the original application. Any application
for a certificate of authority which is not approved or denied within the 180-day period, or within 30 days after conclusion of
a public hearing held on the application, shall be deemed approved, subject to the satisfactory completion of conditions
required by statute as a prerequisite to licensure.
 (10) DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY.--
  (a) Unemployment compensation.--



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     1. Notwithstanding s. 120.54, the rulemaking provisions of this chapter do not apply to unemployment compensation
appeals referees.
     2. Notwithstanding s. 120.57(1)(a), hearings may be conducted by the Unemployment Appeals Commission in
unemployment compensation appeals, unemployment compensation appeals referees, and special deputies pursuant to s.
443.141.
   (b) Workers' compensation.--Notwithstanding s. 120.52(1), a judge of compensation claims, in the adjudication of matters
pursuant to chapter 440, shall not be considered an agency or part of an agency for the purposes of this chapter.
 (11) NATIONAL GUARD.--Notwithstanding s. 120.52(15), the enlistment, organization, administration, equipment,
maintenance, training, and discipline of the militia, National Guard, organized militia, and unorganized militia, as provided
by s. 2, Art. X of the State Constitution, are not rules as defined by this chapter.
 (12) PUBLIC EMPLOYEES RELATIONS COMMISSION.--
   (a) Notwithstanding s. 120.57(1)(a), hearings within the jurisdiction of the Public Employees Relations Commission need
not be conducted by an administrative law judge assigned by the division.
   (b) Section 120.60 does not apply to certification of employee organizations pursuant to s. 447.307.
 (13) FLORIDA PUBLIC SERVICE COMMISSION.--
   (a) Agency statements that relate to cost-recovery clauses, factors, or mechanisms implemented pursuant to chapter 366,
relating to public utilities, are exempt from the provisions of s. 120.54(1)(a).
   (b) Notwithstanding ss. 120.569 and 120.57, a hearing on an objection to proposed action of the Florida Public Service
Commission may only address the issues in dispute. Issues in the proposed action which are not in dispute are deemed
stipulated.
   (c) The Florida Public Service Commission is exempt from the time limitations in s. 120.60(1) when issuing a license.
   (d) Notwithstanding the provisions of this chapter, in implementing the Telecommunications Act of 1996, Pub. L. No. 104-
104, the Public Service Commission is authorized to employ procedures consistent with that act.
   (e) Notwithstanding the provisions of this chapter, s. 350.128, or s. 364.381, appellate jurisdiction for Public Service
Commission decisions that implement the Telecommunications Act of 1996, Pub. L. No. 104-104, shall be consistent with
the provisions of that act.
   (f) Notwithstanding any provision of this chapter, all public utilities and companies regulated by the Public Service
Commission shall be entitled to proceed under the interim rate provisions of chapter 364 or the procedures for interim rates
contained in chapter 74-195, Laws of Florida, or as otherwise provided by law.
 (14) DEPARTMENT OF REVENUE.--
   (a) Assessments.--An assessment of tax, penalty, or interest by the Department of Revenue is not a final order as defined
by this chapter. Assessments by the Department of Revenue shall be deemed final as provided in the statutes and rules
governing the assessment and collection of taxes.
   (b) Taxpayer contest proceedings.--
     1. In any administrative proceeding brought pursuant to this chapter as authorized by s. 72.011(1), the taxpayer shall be
designated the "petitioner" and the Department of Revenue shall be designated the "respondent," except that for actions
contesting an assessment or denial of refund under chapter 207, the Department of Highway Safety and Motor Vehicles shall
be designated the "respondent," and for actions contesting an assessment or denial of refund under chapters 210, 550, 561,
562, 563, 564, and 565, the Department of Business and Professional Regulation shall be designated the "respondent."
     2. In any such administrative proceeding, the applicable department's burden of proof, except as otherwise specifically
provided by general law, shall be limited to a showing that an assessment has been made against the taxpayer and the factual
and legal grounds upon which the applicable department made the assessment.
     3. a. Prior to filing a petition under this chapter, the taxpayer shall pay to the applicable department the amount of taxes,
penalties, and accrued interest assessed by that department which are not being contested by the taxpayer. Failure to pay the
uncontested amount shall result in the dismissal of the action and imposition of an additional penalty of 25 percent of the
amount taxed.
     b. The requirements of s. 72.011(2) and (3)(a) are jurisdictional for any action under this chapter to contest an assessment
or denial of refund by the Department of Revenue, the Department of Highway Safety and Motor Vehicles, or the
Department of Business and Professional Regulation.
     4. Except as provided in s. 220.719, further collection and enforcement of the contested amount of an assessment for
nonpayment or underpayment of any tax, interest, or penalty shall be stayed beginning on the date a petition is filed. Upon
entry of a final order, an agency may resume collection and enforcement action.
     5. The prevailing party, in a proceeding under ss. 120.569 and 120.57 authorized by s. 72.011(1), may recover all legal
costs incurred in such proceeding, including reasonable attorney's fees, if the losing party fails to raise a justiciable issue of
law or fact in its petition or response.
  History.--
   s. 41, ch. 96-159.
  * Note.--

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 The Department of Health and Rehabilitative Services was redesignated as the Department of Children and Family
Services by s. 5, ch. 96-403, and the Department of Health was created by s. 8, ch. 96-403.

  120.81 Exceptions and special requirements; general areas.--
 (1) EDUCATIONAL UNITS.--
   (a) The preparation or modification of curricula by an educational unit is not a rule as defined by this chapter.
   (b) Notwithstanding s. 120.52(15), any tests, test scoring criteria, or testing procedures relating to student assessment
which are developed or administered by the Department of Education pursuant to s. 229.57, s. 232.245, s. 232.246, or s.
232.247, or any other statewide educational tests required by law, are not rules.
   (c) Notwithstanding s. 120.54(3)(a), notice of intent by an educational unit to adopt, amend, or repeal a rule or notice by an
educational unit of a petition for a declaratory statement need not be published in the Florida Administrative Weekly or
transmitted to the committee; however, the notice, for other than an emergency rule, shall be made at least 21 days prior to
the intended action:
     1. By publication in a newspaper of general circulation in the affected area;
     2. By mail to all persons who have made requests of the educational unit for advance notice of its proceedings and to
organizations representing persons affected by the proposed rule; and
     3. By posting in appropriate places so that those particular classes of persons to whom the intended action is directed may
be duly notified.
   (d) Notwithstanding s. 120.54(3)(a)4., educational units, other than units of the State University System and the Florida
School for the Deaf and the Blind, shall not be required to make filings with the committee of the documents required to be
filed by that subparagraph.
   (e) Notwithstanding s. 120.57(1)(a), hearings which involve student disciplinary suspensions or expulsions may be
conducted by educational units.
   (f) Sections 120.569 and 120.57 do not apply to any proceeding in which the substantial interests of a student are
determined by the State University System. The Board of Regents shall establish a committee, at least half of whom shall be
appointed by the Council of Student Body Presidents, which shall establish rules and guidelines ensuring fairness and due
process in judicial proceedings involving students in the State University System.
   (g) Notwithstanding ss. 120.569 and 120.57, in a hearing involving a student disciplinary suspension or expulsion
conducted by an educational unit, the 14-day notice of hearing requirement may be waived by the agency head or the hearing
officer without the consent of parties.
   (h) For purposes of s. 120.68, a district school board whose decision is reviewed under the provisions of s. 231.36 and
whose final action is modified by a superior administrative decision shall be a party entitled to judicial review of the final
action.
   (i) Notwithstanding s. 120.525(2), the agenda for a special meeting of a district school board under authority of s. 230.16
shall be prepared upon the calling of the meeting, but not less than 48 hours prior to the meeting.
 (2) LOCAL UNITS OF GOVERNMENT.--
   (a) Notwithstanding s. 120.54(3)(a)4., local units of government with jurisdiction in only one county or part thereof shall
not be required to make filings with the committee of the documents required to be filed by that subparagraph.
   (b) Notwithstanding s. 120.54(3)(a), notice of intent by a unit of government with jurisdiction in only one county to adopt,
amend, or repeal a rule need not be published in the Florida Administrative Weekly or transmitted to the committee.
 (3) PRISONERS AND PAROLEES.--
   (a) Notwithstanding s. 120.52(12), prisoners, as defined by s. 944.02(5), shall not be considered parties in any proceedings
other than those under s. 120.54(3)(c) or (7), and may not seek judicial review under s. 120.68 of any other agency action.
Prisoners are not eligible to seek an administrative determination of an agency statement under s. 120.56(4). Parolees shall
not be considered parties for purposes of agency action or judicial review when the proceedings relate to the rescission or
revocation of parole.
   (b) Notwithstanding s. 120.54(3)(c), prisoners, as defined by s. 944.02(5), may be limited by the Department of
Corrections to an opportunity to present evidence and argument on issues under consideration by submission of written
statements concerning intended action on any department rule.
   (c) Notwithstanding ss. 120.569 and 120.57, in a preliminary hearing for revocation of parole, no less than 7 days' notice of
hearing shall be given.
 (4) REGULATION OF PROFESSIONS.--Notwithstanding s. 120.569(2)(e), in a proceeding against a licensed professional
or in a proceeding for licensure of an applicant for professional licensure which involves allegations of sexual misconduct:
   (a) The testimony of the victim of the sexual misconduct need not be corroborated.
   (b) Specific instances of prior consensual sexual activity between the victim of the sexual misconduct and any person other
than the offender is inadmissible, unless:
     1. It is first established to the administrative law judge in a proceeding in camera that the victim of the sexual misconduct
is mistaken as to the identity of the perpetrator of the sexual misconduct; or

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    2. If consent by the victim of the sexual misconduct is at issue and it is first established to the administrative law judge in
a proceeding in camera that such evidence tends to establish a pattern of conduct or behavior on the part of such victim
which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent.
  (c) Reputation evidence relating to the prior sexual conduct of a victim of sexual misconduct is inadmissible.
 (5) HUNTING AND FISHING REGULATION.--Agency action which has the effect of altering established hunting or
fishing seasons, or altering established annual harvest limits for saltwater fishing if the procedure for altering such harvest
limits is set out by rule of the Marine Fisheries Commission, is not a rule as defined by this chapter, provided such action is
adequately noticed in the area affected through publishing in a newspaper of general circulation or through notice by
broadcasting by electronic media.
 (6) RISK IMPACT STATEMENT.--The Department of Environmental Protection shall prepare a risk impact statement for
any rule that is proposed for approval by the Environmental Regulation Commission and that establishes or changes
standards or criteria based on impacts to or effects upon human health. The Department of Agriculture and Consumer
Services shall prepare a risk impact statement for any rule that is proposed for adoption that establishes standards or criteria
based on impacts to or effects upon human health.
  (a) This subsection does not apply to rules adopted pursuant to federally delegated or mandated programs where such rules
are identical or substantially identical to the federal regulations or laws being adopted or implemented by the Department of
Environmental Protection or Department of Agriculture and Consumer Services, as applicable. However, the Department of
Environmental Protection and the Department of Agriculture and Consumer Services shall identify any risk analysis
information available to them from the Federal Government that has formed the basis of such a rule.
  (b) This subsection does not apply to emergency rules adopted pursuant to this chapter.
  (c) The Department of Environmental Protection and the Department of Agriculture and Consumer Services shall prepare
and publish notice of the availability of a clear and concise risk impact statement for all applicable rules. The risk impact
statement must explain the risk to the public health addressed by the rule and shall identify and summarize the source of the
scientific information used in evaluating that risk.
  (d) Nothing in this subsection shall be construed to create a new cause of action or basis for challenging a rule nor diminish
any existing cause of action or basis for challenging a rule.
  History.--
  s. 42, ch. 96-159.




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                (This page is blank.)




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                     CHAPTER 1S-1
                     RULEMAKING

1S-1.001        Numbering System.
1S-1.0015       Definitions.
1S-1.002        Style and Form for Filing Rules; Certification Accompanying Materials.
1S-1.003        Florida Administrative Weekly (FAW).
1S-1.004        History Notes and Legal Citations.
1S-1.005        Publication by Reference.
1S-1.006        Agency Rule Reprints. (Repealed)
1S-1.007        Uniform Indexing Procedures.
1S-1.008        Noncompliance.

1S-1.001 Numbering System.
         (1) A decimal numbering system similar to that used in the Florida Statutes shall be used to designate all
rules filed with the Department of State.
         (2) Each rule number shall be preceded by the title number assigned to each state agency or closely
related group of state agencies by the Department of State. (Example: The title number assigned to the
Department of State is 1).
         (3) If more than one major activity exists within an agency an uppercase letter shall be added to the title
number to distinguish the different activities. Individual agencies within a group of closely related agencies
sharing a title number shall also be designated by an uppercase letter following the title number. Letters added to
title numbers are considered a part of the title number. (Example: Department of State adding to title number 1 the
letters A, B, etc., so that they read 1A, 1B, etc.).
         (4) If a unit of government which has independent rulemaking authority performs a function within a
major activity of an agency or is a part of an individual agency which is one of a closely related group of agencies
sharing a common title number, the title number and letter shall be followed by an Arabic numeral which shall be
part of the title number.
         (5) If more than one function exists within a major activity of an agency or within an agency included in a
group of closely related agencies sharing a title number, a separate chapter number shall be used to designate rules
applicable to each function. (Example: 1A-1 and 1A-2).
         (6) A decimal point shall follow each chapter number and the digits following the decimal point shall
indicate the individual rule sections within the chapter. Each rule section shall be numbered with a minimum of
three digits after the decimal point. (Example: 1S-1.001).
         (7) Units and sub units of sections are numbered as follows:
         (a) Subsections by an Arabic numeral in parentheses.
         (b) Paragraphs within a subsection by a lowercase letter in parentheses.
         (c) Subparagraphs within a paragraph by an Arabic numeral followed by a decimal point.
         (d) Sub-subparagraphs within a paragraph by a lowercase letter followed by a decimal point.
         (8) Notwithstanding subsection (1), the number for emergency rules shall be indicated by the letters "ER"
and the last two digits of the calendar year in which the rule is filed. Such indicators shall follow the agency
control number and division letter if applicable. Emergency rules shall be numbered consecutively each year
beginning on January 1, and such numbers shall be used in lieu of the chapter number and section number
required for rules normally promulgated.
         (9) All rules submitted for filing shall be numbered by the adopting agency in accordance with the
provisions of this rule; however, the Department of State may, upon proper notification, change the number of
any rule or any part of a rule when the change is needed to preserve the overall integrity of the numbering system
used in the Florida Administrative Code.
         (a) A rule section in its entirety may be transferred, with no changes in the text, to a new location in the
Code and shall be renumbered accordingly by the agency by writing a letter to the Bureau of Administrative Code
requesting such transfer of a rule section. However, no change in text may be made when transferring an existing
rule section in this manner. Transferring a rule section in this manner does not require notification in the Florida
Administrative Weekly.

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       (b) An agency shall not reassign numbers of repealed or transferred sections to sections subsequently
promulgated.
       (10) The following basic title numbers are assigned to the corresponding agencies:
       1 - Department of State
       2 - Department of Legal Affairs
       3 - Department of Banking and Finance
       4 - Department of Insurance
       5 - Department of Agriculture and Consumer Services
       6 - Department of Education
       7 - Department of Business Regulation
       8 - Department of Commerce
       9 - Department of Community Affairs
       10 - Department of Health and Rehabilitative Services
       11 - Department of Law Enforcement
       12 - Department of Revenue
       13 - Department of General Services
       14 - Department of Transportation
       15 - Department of Highway Safety and Motor Vehicles
       16 - Department of Natural Resources
       17 - Department of Environmental Regulation
       18 - Board of Trustees of the Internal Improvement Trust Fund
       19 - State Board of Administration
       20 - Department of Citrus
       21 - Department of Professional Regulation
       22 - Department of Administration
       23 - Parole Commission
       24 - Pardon Board
       25 - Public Service Commission
       26 - Assessment Administration Review Commission
       27 - Executive Office of the Governor
       28 - Administration Commission
       29 - Regional Planning Councils
       30 - Regional Transportation Authorities
       31 - Loxahatchee River Environmental Control District
       32 - State Fair Authority
       33 - Department of Corrections
       34 - Commission on Ethics
       35 - Metropolitan Planning Organizations
       36 - Englewood Water District
       37 - Advisory Council on Inter-Governmental Relations
       38 - Department of Labor and Employment Security
       39 - Game and Fresh Water Fish Commission
       40 - Water Management Districts
       41 - Commission for the Transportation Disadvantaged
       42 - Florida Land and Water Adjudicatory Commission
       43 - Fiscal Accounting Information Board
       44 - Information Resource Commission
       45 - Expressway Authorities
       46 - Marine Fisheries Commission
       47 - High Speed Rail Transportation Commission
       48 - Florida Keys Aqueduct Authority
       49 - Regional Utility Authority Walton/Okaloosa/Santa Rosa
       50 - Alligator Point Resource Board


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        51 - Hillsborough County Consolidated Taxicab Commission
        52 - Port of Palm Beach District
        53 - Department of the Lottery
        54 - Interlocal Agencies
        55 - Department of Veterans' Affairs
        56 - Clean Florida Commission
        57 - Spaceport Florida Authority
        58 - Department of Elder Affairs
        59 - Agency for Health Care Administration
        60 - Department of Management Services
        61 - Department of Business and Professional Regulation
        62 - Department of Environmental Protection
        63 - Department of Juvenile Justice

        Specific Authority 120.55(1)(c) FS.
        Law Implemented 120.55(1)(c) FS.
        History--New 5-29-80, Formerly 1-1.01, Amended 10-1-84, 11-14-85, 4-10-90, 6-17-92, 4-1-96.

1S-1.0015 Definitions. Definitions as used in Rule Chapter 1S-1.
         (1) "Amended Rule" means a rule which has been altered by adding, deleting or rephrasing language.
         (2) "Change" "Change Notice" or "Modification" refers to changes or modifications made to proposed or
amended rules. These changes are technical corrections to typographical errors or substantive changes related to
specific recommendations made in a public hearing, written comments timely received or recommendations by
the Legislative Joint Administrative Procedures Committee.
         (3) "Coded Copy" is the specifically produced text of a proposed rule amendment in which new language
is underlined and deleted language is stricken through.
         (4) "Deliver for Publication" means providing material to the Bureau of Administrative Code for
publication in the Florida Administrative Weekly. Such material must be submitted on or before the deadline and
must be in the format specified in rule 1S-1.003.
         (5) "File" or "File for Adoption" means delivery of a certified proposed or amended rule and incorporated
documents to and acceptance by an official in the Bureau of Administrative Code who is authorized to accept
official documents.
         (6) "Law Implemented" is the law which an agency is interpreting or administering by the adoption of
rules.
         (7) "New Rule" is a rule which has been recently adopted.
         (8) "Repealed Rule" is a rule which has been revoked or rescinded.
         (9) "Rule Chapter" means a major grouping of similar rules relating to a particular subject. For example,
"1S-1" is a rule chapter which contains several individual rules of the Department of State.
         (10) "Specific Authority" is the explicit law that authorizes an agency to promulgate rules to carry out its
duties and responsibilities.
         (11) "Strike Through" means a method of designating existing language of a rule which will be deleted by
showing such language as dashed through.
         (12) "Transferred Rule" is a rule which has been renumbered and relocated from one rule chapter to
another with no changes in the text of the rule. The current rule will contain the former rule number in the history
note.
         (13) "Underline" means a method of designating new language of a rule by placing a solid continuous line
under new language.

        Specific Authority 120.53 FS.
        Law Implemented 120.55(1)(c) FS.
        History--New 9-2-93, Amended 4-1-96.

1S-1.002 Style and Form for Filing Rules; Certification Accompanying Materials.


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         (1) An agency adopting a new rule which is to be published in the Florida Administrative Code pursuant
to paragraph 120.54(3)(e), Florida Statutes, shall submit an original and two copies of the new rule it plans to
adopt to the Department. The original shall be typed on white, letter-size (8 1/2" x 11") paper, double spaced.
Margins of at least one inch shall be left at the top and bottom and on each side of the page. Each rule page shall
be numbered.
         (2) An agency adopting an amendment to an existing rule shall submit an original and two copies,
underlining added material and striking through material deleted. The added material shall appear before the
material deleted. Each rule page shall be numbered. The text of a rule amendment shall set forth in full the
amended rule and should include such subsections, paragraphs, subparagraphs or sub-subparagraphs of the
amended rule where necessary to make the publication of the amended rule complete and meaningful in itself.
The original shall be prepared in the same manner as described in subsection (1) of this rule.
         (3) If an amendment to a rule substantially rewords the rule, it shall be preceded by the following
directory line: (Substantial rewording of Rule ________. See Florida Administrative Code for present text.)
         (4) An original and two copies shall be submitted for emergency rules and rules which repeal existing
rules. The original shall be typed on letter-size (8 1/2" x 11") paper. Rules which repeal existing rules shall
contain the words, "The following rules are hereby repealed:" followed by the number of the rule or rules being
repealed and the complete text of each repealed rule with a diagonal line drawn through the text. The text of
repealed rules may be provided by making a copy of the rule as it appears in the Florida Administrative Code.
         (5) The adopting agency shall submit a catchline for each rule section to follow the section number. The
catchline is not part of the substantive language of the section and may be altered by the Department of State if it
does not sufficiently indicate the content of the section to make it useful for indexing purposes. Section numbers
with catchlines will be listed at the beginning of each rule chapter.
         (6) If the effective date of the rule is other than 20 days after being filed, the effective date shall be stated
immediately following the final rule section unit or sub unit as set forth in subsection 1S-1.001(7). The effective
date shall be preceded by "PROPOSED EFFECTIVE DATE:". The effective date shall also be stated on the
certification page. The effective date of the rule will not be published in the Florida Administrative Code, but will
appear in the history note. If the effective date of an emergency rule is other than immediately on filing, the
effective date of the emergency rule shall be stated immediately following the final rule section unit or sub unit of
the rule. The effective date shall be preceded by "PROPOSED EFFECTIVE DATE:". The effective date shall also
be stated on the certification page.
         (7) An agency adopting a rule shall submit an original and two copies of the certification with the rule.
Separate certificates shall be filed for each rule chapter affected. Each new, amended or repealed rule section, or
individual rule within a rule chapter shall be listed on the certificate.
         (a) Each certification used in filing new, amended or repealed rules, except emergency rules, shall be in
the following form:
CERTIFICATION OF (NAME OF AGENCY)
ADMINISTRATIVE RULES FILED WITH
THE DEPARTMENT OF STATE
I do hereby certify:
         [ ] (1) That all statutory rulemaking requirements of Chapter 120, F.S., have been complied with; and
         [ ] (2) There is no administrative determination under subsection 120.56(2), F.S., pending on any rule
covered by this certification; and
         [ ] (3) All rules covered by this certification are filed within the prescribed time limitations of paragraph
120.54(3)(e), F.S. They are filed not less than 28 days after the notice required by paragraph 120.54(3)(a), F.S.;
and
         [ ] (a) Are filed not more than 90 days after the notice; or
         [ ] (b) Are filed not more than 90 days after the notice not including days an administrative determination
was pending; or
         [ ] (c) Are filed more than 90 days after the notice, but not less than 21 days from the date of publication
of the notice of change; or
         [ ] (d) Are filed more than 90 days after the notice, but within 21 days after the adjournment of the final
public hearing on the rule; or



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         [ ] (e) Are filed more than 90 days after the notice, but within 21 days after the date of receipt of all
material authorized to be submitted at the hearing; or
         [ ] (f) Are filed more than 90 days after the notice, but within 21 days after the date the transcript was
received by this agency.
         [ ] (g) Are filed not more than 90 days after the notice, not including days the adoption of the rule was
postponed following notification from the Joint Administrative Procedures Committee that an objection to the
rule was being considered.
         Attached are the original and two copies of each rule covered by this certification. The rules are hereby
adopted by the undersigned agency by and upon their filing with the Department of State.
Rule No(s)
(List in Columns)
Under the provision of subparagraph 120.54(3)(e)6., F.S., the rules take effect 20 days from the date filed with the
Department of State or a later date as set out below:
         Effective: ________ (month) ________ (day) ________ (year)
________
Signature, Person Authorized to Certify Rules
________
Title
________
Number of Pages Certified
         (b) Each certification used in filing an emergency rule shall be in the following form:
CERTIFICATION OF (NAME OF AGENCY)
EMERGENCY RULES FILED WITH
THE DEPARTMENT OF STATE
I hereby certify that an immediate danger to the public health, safety or welfare requires emergency action and
that the attached rule is necessitated by the immediate danger. I further certify that the procedures used in the
promulgation of this emergency rule were fair under the circumstances and that the rule otherwise complies with
subsection 120.54(4), Florida Statutes. The adoption of this rule was authorized by the head of the agency and this
rule is hereby adopted upon its filing with the Department of State.
Rule No(s)
(List in Columns)
Under the provision of paragraph 120.54(4)(d), this rule takes effect upon filing unless a later time and date less
than 20 days from filing, is set out below:
         Effective: ________ (month) ________ (day) ________ (year)
________
Signature, Person Authorized to Certify Rules
________
Title
________
Number of Pages Certified
         (8) In addition to the certification forms, certain materials are required by Section 120.54, Florida
Statutes, to be filed with each rule.
         (a) For non-emergency new rules a complete rule packet for filing with the Bureau of Administrative
Code shall consist of the original and two copies of the following:
         1. A summary of the rule;
         2. A summary of any hearings held on the rule;
         3. A detailed written statement of the facts and circumstances justifying the rule;
         4. The history notes required by Rule number 1S-1.004;
         5. Text of rule or rules.
         (b) For non-emergency amended rules a complete rule packet for filing with the Bureau of Administrative
Code shall consist of the original and two copies of the following:
         1. A summary of the rule;
         2. A summary of any hearings held on the rule;


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         3. A detailed written statement of the facts and circumstances justifying the rule;
         4. The history notes required by Rule number 1S-1.004;
         5. Text of rule or rules (original and two copies, underlining added material and striking through material
deleted).
         (c) For non-emergency repealed rules a complete rule packet for filing with the Bureau of Administrative
Code shall consist of the original and two copies of the following:
         1. A summary of the rule to be repealed;
         2. A summary of any hearings held on the rule;
         3. A detailed written statement of the facts and circumstances justifying the repeal of the rule;
         4. The history notes required by Rule number 1S-1.004;
         5. Each rule being repealed with a diagonal line drawn through the text.
         (d) For emergency rules a complete rule packet for filing with the Bureau of Administrative Code shall
consist of the original and two copies of the following:
         1. A statement of the specific facts and reasons for finding an immediate danger to the public health,
safety and welfare;
         2. A statement of the agency's reasons for concluding that the procedure used is fair under the
circumstances; and
         3. Text of rule or rules.
         (9) Technical changes, such as non-substantive changes, punctuation, misspellings, corrections of tense,
change of address or telephone number, or similar changes which do not affect the construction or meaning of the
rules, may be accomplished by writing a letter to the Bureau of Administrative Code. Such changes do not require
notification in the Florida Administrative Weekly.

        Specific Authority 120.55(1)(c) FS.
        Law Implemented 120.54(3)(e), (4), 120.55(1)(c), (d) FS.
        History--New 5-29-80, Formerly 1-1.02, Amended 12-30-81, 2-9-84, 10-1-84, 11-14-85, 10-19-86, 4-10-
90, 6-17-92, 10-1-96.

1S-1.003 Florida Administrative Weekly (FAW).
         (1)(a) The Florida Administrative Weekly (FAW) is published each Friday of the year except those
Fridays which are observed as official state holidays designated by Section 110.117, F.S. When Friday is
observed as a holiday, publication shall be on the last working day of the week in which the Friday holiday is
observed.
         (b) All materials to be published in the Florida Administrative Weekly must be received by the
Department of State before 12:00 Noon Wednesday, the week prior to publication. When Wednesday, Thursday,
or Friday is observed as a holiday, the deadline for receiving material shall be 12:00 Noon on Monday the week
prior to publication.
         (2)(a) All proposed rules and other documents to be published in the FAW shall be submitted on 5.25" or
3.5" disk, together with one hard copy of each notice, and shall comply with the following specifications:
         1. 5.25" or 3.5" diskette, 720 K or 1.44 M recording Density, IBM PC compatible formatting; and
         2. All diskettes shall be accompanied by an affixed external label that:
         a. Identifies the submitting agency by the agency's title number;
         b. Lists the file(s) contained on the disk; and
         c. Lists the type of software used.
         3. Acceptable software:
         a. WordPerfect for MS-DOS Version 5 and above; or
         b. WordPerfect for Windows Version 5 and above; or
         c. Microsoft Word for MS-DOS Versions 3.0, 4.0, 5.0, 5.5 and 6.0; or
         d. Microsoft Word for Windows Versions 3.0, 4.0, 5.0, 5.5 and 6.0; or
         e. Microsoft Write for Windows; or
         f. Ami Professional; or
         g. DisplayWrite 2, 3, 4, and 5; or
         h. Rich Text Format.


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         4. No other software will be accepted unless specifically authorized in writing by the Bureau of
Administrative Code.
         5. All documents submitted shall use "underscore" and "overstrike" character attributes to denote inserted
and deleted text, respectively. Documents shall not contain "redlining" or other revision markers.
         6. The hard copy required for each notice shall be printed on white letter size (8 1/2" x 11") paper, and
shall be double spaced.
         (b) All proposed new rules, amendments, substantial rewording of existing rules, repeals and emergency
rules shall be preceded by a Notice of Proposed Rulemaking as set out in subsections (5) and (8) of this rule; and
         1. All proposed new rules shall be coded by underlining the rule number, title, text, specific authority, law
implemented and history note.
         2. All proposed rule amendments shall be coded by underlining new material and striking through
material to be deleted. When amending a portion of a rule chapter, only the amended sections of the chapter shall
be included on the notice of proposed non-emergency rules.
         3. All proposed rules which substantially reword existing rules shall be coded by underlining the new
material. The rule number, title, specific authority, law implemented and history note lines need not be
underlined. The text of the substantial rewording of existing rules shall be preceded by the following directory
line: (Substantial rewording of Rule        . See Florida Administrative Code for present text.)
         4. All proposed rule repeals shall be coded by underlining the word "Repealed" in the history note. The
full text of said rule is not required to be published in the FAW. Only a reference to the rule number, rule title and
the Specific Authority, Law Implemented and history note will be set out, provided that the rule summary portion
of the notice fully describes the subject matter of the repealed rule text. Partial rule repeals will be treated in the
same manner as an amendment.
         5. Emergency rules shall be coded as specified in subparagraphs 1. and 2.
         (c) The department reserves the right to reject any notice that does not comply with the requirements
specified in this rule.
         (3) Agencies shall submit a cover letter for each notice to be published in the FAW, specifying the
person's name and address to which the invoice will be sent, so that the proper agency will be billed for the costs
of publication. In addition, the cover letter shall contain the agency's title number, type of notice(s) and file
name(s) contained on the disk, and shall specify the publication date. A sample cover letter may be obtained by
contacting the Bureau of Administrative Code.
         (4) The following format shall be used for notices of proposed rule development.
NAME OF AGENCY
Division or Board
RULE TITLE: RULE NO.:
PURPOSE AND EFFECT:
SUBJECT AREA TO BE ADDRESSED:
SPECIFIC AUTHORITY:
LAW IMPLEMENTED:
IF REQUESTED AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE
DEVELOPMENT WORKSHOP WILL BE HELD AT THE TIME, DATE AND PLACE SHOWN BELOW:
TIME AND DATE:
PLACE:
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT IS:
THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS (IF AVAILABLE):
         (5) The following format shall be used for notices of proposed non-emergency rulemaking. This format
may be modified to delete the words "If requested within 21 days of the date of this notice" if the agency intends
to conduct a hearing whether or not requested, or to delete the reference to a hearing if no hearing is required on
the rule.
NAME OF AGENCY
Division or Board
RULE TITLE: RULE NO.:
PURPOSE AND EFFECT:
SUMMARY:


                                                         B-7
July 15, 1997                                                                                         CFOP 30-1

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COST: (If one has been prepared)
Any person who wishes to provide information regarding the statement of estimated regulatory costs, or to
provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY:
LAW IMPLEMENTED:
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT
THE TIME, DATE AND PLACE SHOWN BELOW:
TIME AND DATE:
PLACE:
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS:
THE FULL TEXT OF THE PROPOSED RULE IS:
        (TEXT OF RULE)
NAME OF PERSON ORIGINATING PROPOSED RULE:
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE:
DATE PROPOSED RULE APPROVED:
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW:
        (6) The following format shall be used for notices of change to proposed rules:
NAME OF AGENCY
Division or Board
RULE NO.:       RULE TITLE:
NOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in accordance with
subparagraph 120.54(3)(d)1., F.S., published in Volume --, No. --, (date), issue of the Florida Administrative
Weekly:
(Text of proposed rule changes)
        (7) The following format shall be used for notices of withdrawal of proposed rules:
NAME OF AGENCY
Division or Board
RULE NO.:       RULE TITLE:
NOTICE OF WITHDRAWAL
Notice is hereby given that the above rule, as noticed in Volume --, No. --, (date), Florida Administrative Weekly
has been withdrawn.
        (8) The following format shall be used for notices of proposed emergency rules:
NAME OF AGENCY
Division or Board
RULE TITLE: RULE NO.:
SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC, HEALTH, SAFETY OR
WELFARE:
REASONS FOR CONCLUDING THAT THE PROCEDURE USED IS FAIR UNDER THE
CIRCUMSTANCES:
SUMMARY OF THE RULE:
THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS:
THE FULL TEXT OF THE EMERGENCY RULE IS:
        (TEXT OF RULE)
THIS RULE TAKES EFFECT UPON BEING FILED WITH THE DEPARTMENT OF STATE UNLESS A
LATER TIME AND DATE IS SPECIFIED IN THE RULE.
        (9) The following format shall be used for preparing notices of public meetings, hearings, or workshops:
The (name of agency) announces a (public meeting, hearing or workshop) to which all persons are invited:
DATE AND TIME:
PLACE:
GENERAL SUBJECT MATTER TO BE CONSIDERED:
A copy of the agenda may be obtained by contacting:
(10) The following format shall be used to give notices of petitions for Declaratory Statements:


                                                       B-8
July 15, 1997                                                                                               CFOP 30-1

NOTICE IS HEREBY GIVEN THAT (name of agency) ________, has received a petition for a Declaratory
Statement from (name of petitioner). The petition seeks the agency's opinion as to the applicability of (statute, rule
or order number) as it applies to the petitioner.
(11) The following format shall be used to give notice of the disposition of Declaratory Statements:
NOTICE IS HEREBY GIVEN that (name of agency) has issued an order disposing of the petition for Declaratory
Statement filed by (petitioner's name) on the (date of petition). The following is a summary of the agency's
disposition of the petition: (insert a statement that the petition was denied and the reasons for the denial or that the
petition was granted and set out a summary of the substance of the response)
(12)(a) The following format shall be used to give notice of the invalidation of a proposed or effective rule:
(name of agency) HEREBY GIVES NOTICE that a hearing officer has determined that (rule no.) is invalid. The
time for filing an appeal of this decision expired (date). (If desired insert optional summary of the hearing officer's
determination.)
         (b) If the rule declared invalid is a proposed rule, the rule number inserted in the notice shall be prefixed
by the word "proposed."

        Specific Authority 120.55(1)(c) FS.
        Law Implemented 120.54(2), 120.55(1), (3) FS.
        History--New 5-29-80, Formerly 1-1.021, Amended 7-12-81, 12-30-81, 7-8-82, 2-9-84, 10-1-84, 11-14-
85, 10-19-86, 4-10-90, 6-17-92, 9-2-93, 4-1-96, 10-1-96.

1S-1.004 History Notes and Legal Citations.
        (1) Each proposed rule shall be followed by a statement of the rulemaking authority authorizing the rule
and a statement of the law being implemented, stated separately.
        (2) History notes following all rules published in the Florida Administrative Code shall consist of:
        (a) The effective date of each new, amended or repealed rule.
        (b) The effective date of each repromulgated rule.
        (c) When applicable, a statement that the Joint Administrative Procedures Committee has objected to the
rule and the date of the issue of the Florida Administrative Weekly in which notice of the committee's objection
appears.
        (d) A reference to any previous rule number the rule may have had.
        (3) History notes shall be corrected or modified by writing a letter to the Bureau of Administrative Code
specifying the changes. This does not require notification in the Florida Administrative Weekly.

        Specific Authority 120.55(1)(d) FS.
        Law Implemented 120.54(7), 120.55(1)(e) FS.
        History--New 5-29-80, Formerly 1-1.03, Amended 10-1-84, 11-14-85.

1S-1.005 Publication by Reference.
         (1) Any ordinance, standard, specification or similar material may be published by reference in a rule
subject to the following conditions:
         (a) The material shall be generally available to affected persons.
         (b) The material shall be published by a governmental agency or a generally recognized professional
organization.
         (2) The agency publishing material by reference shall file with the Department of State a correct and
complete copy of the referenced material with an attached certification page which shall state a description of the
referenced material and specify the rule to which the referenced material relates.
         (3) Any amendments to material published by reference must be promulgated under the rulemaking
provisions of Section 120.54, Florida Statutes, in order for the amended portions to be validly incorporated.

        Specific Authority 120.54, 120.55(1)(d) FS.
        Law Implemented 120.55(1)(d) FS.
        History--New 5-29-80, Formerly 1-1.04.



                                                          B-9
July 15, 1997                                                                                             CFOP 30-1

1S-1.006 Agency Rule Reprints.
       Specific Authority 120.53(1)(b) FS.
       Law Implemented 120.55 FS.
       History--New 5-29-80, Formerly 1-1.05, Amended 12-30-81, Repealed 10-1-84.

1S-1.007 Uniform Indexing Procedures. Each agency must establish and maintain a two-part index of its
rules which will be similar to the indexes of the Florida Statutes.
        (1) Part I will consist of an alphabetical subject-matter index of all chapter titles, headings and numbers
thereunder. The chapter title and chapter heading must appear in bold letters at the left margin. The index should
conform to the following example:
HEALTH AND REHABILITATIVE SERVICES
ADMINISTRATIVE SERVICES, Chapter 10A
        Drug Abuse Programs, 10A-2; 10A-3; 10A-4; 10A-5; 10A-6 and 10A-9
        Grants, 10A-7
        Practice and Procedure, 10A-1
        Voluntary Treatment, 10A-8
        (2) Part II will consist of a numerical listing of all chapter numbers in bold letters in the left margin with
an alphabetical listing of either the section title or an appropriate key word of the section contained in the chapter
followed by the appropriate citation. The index should conform to the following example:
Chapter 10A-1, PRACTICE AND PROCEDURE
        Administrative determination of the validity of proposed rules, 10A-1.029
        Agenda of meetings and workshops, 10A-1.001
        Contents of notice, 10A-1.024
        Emergency meetings and workshops, 10A-1.012
        Emergency rule hearings, 10A-1.028
        Generally, 10A-1.020
        Meetings and workshops, agenda of, 10A-1.001
        Notice, contents of, 10A-1.024
        Notice of meetings, 10A-1.010

        Specific Authority 120.53 FS.
        Law Implemented 120.53(2), (4), 120.55(1)(a), (b) FS.
        History--New 5-29-80, Formerly 1-1.06, Amended 2-9-84, 10-1-84, 11-14-85, 1-1-92.

1S-1.008 Noncompliance. In the event an agency fails to comply with the requirements of this chapter, the
Department of State will not accept the proposed rules for filing.

        Specific Authority 120.55(1)(d) FS.
        Law Implemented 120.54(3)(e), 120.55(1)(d) FS.
        History--New 5-29-80, Formerly 1-1.07.




                                                        B-10
July 15, 1997                                                                                      CFOP 30-1


                     CAPITALIZATION GUIDELINES FOR RULES

Acts & Bills:    The Older Americans Act; but the act.
                 Senate Bill 217; but the bill.

Boards:          Leon County Board of County Commissioners; but the board of county commissioners.

Cabinet:         The Florida Cabinet; the Cabinet; Cabinet member.

Councils:        Adoption Advisory Council; but the council.

Courts:          Except for the Supreme Court, capitalize only the full formal title of the court: District
                 Court of Appeal, First District; but the district court of appeal. The Florida Supreme
                 Court; the Supreme Court.

Department:      Capitalize only in formal names: Department of Children and Families, Department of
                 State; but the department, department policy.

District:        Capitalize only when used as part of a formal name: District 5; but the district.

Federal:         Capitalize in formal names only: Federal Bureau of Investigation, Federal Register; but
                 federal government, federal regulations, federal court.

Legislature:     Capitalize with or without a state name when referring to our state Legislature: the
                 Florida Legislature, our Legislature has adjourned. The Florida Senate; the Senate: The
                 Florida House of Representatives; the House.

Organizations:   Capitalize the full name of organizations: The Florida Medical Association; but the
                 association.

State:           Capitalize in formal names only: Florida State University; but state of Florida, the state.

Titles:          Official titles: President of the Senate; Speaker of the House; Governor; Lt. Governor;
                 and Cabinet officers’ titles (Attorney General, Treasurer, Comptroller) are customarily
                 capitalized in rules and statutes. Other titles are not; secretary, deputy secretary,
                 assistant secretary.

Publications:    Florida Statutes; Laws of Florida: but the statutes; the laws. Florida Constitution; but the
                 state constitution. Federal Constitution; the Constitution.

Statutes:        Florida Statutes; FS.; statutes. Section 20.57 FS. but s.120.57 FS.




                                                                                    Appendix C to CFOP 30-1
July 15, 1997                                                                    CFOP 30-1



                                     MEMORANDUM

       TO:        Liz Cloud, Chief, Bureau of Administrative Code

       DATE:

       SUBJECT:   Notice to be Published in FAW Agency's Title No.:         65

       PLEASE PUBLISH THE ATTACHED NOTICE IN THE _________________ ISSUE
       OF THE FLORIDA ADMINISTRATIVE WEEKLY.

       ___Rule Development                      ___Meeting/Workshop/Hearing
       ___Proposed Rule                         ___Declaratory Statement
       ___Notice of Change/Withdrawal           ___Bid/Request for Proposal
       ___Emergency Rule                        ___Miscellaneous

       LIST OF FILES ON THE ATTACHED DISK: __________       __________

         __________   _________   __________   __________   __________


       **Name and phone number of person to be contacted regarding the
       attached notice: ______________________________________________

       ***************************************************************
       BILLING INFORMATION
       The invoice for the cost of publication should be sent to:
       Department of Children and Families
       Program Office: _________________________________________
       Contact Person: _________________________________________
       Complete Address: _______________________________________________
       Suncom Phone No.: ________________      Purchase Order No.:     _______
       *****************************************************************
       THIS SECTION TO BE COMPLETED BY THE BUREAU OF ADMINISTRATIVE CODE

       FAW file name__________________         Lines per notice_____________

       *****************************************************************




                                                                   Appendix D to CFOP 30-1
July 15, 1997                                                           CFOP 30-1




                           NOTICE OF RULE DEVELOPMENT


       DEPARTMENT OF CHILDREN AND FAMILIES

       RULE TITLE:                           RULE NUMBER:

       PURPOSE AND EFFECT:

       SUBJECT AREA TO BE ADDRESSED:

       SPECIFIC AUTHORITY:

       RULE IMPLEMENTED:

       IF REQUESTED AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD,
       A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE TIME, DATE,
       AND PLACE SHOWN BELOW:

       TIME AND DATE:

       PLACE:

       THE PERSON TO BE CONTACTED WITH REGARD TO THE PROPOSED RULE
       DEVELOPMENT IS:

       THE PRELIMINARY TEXT OF THE OF THE PROPOSED RULE DEVELOPMENT
       IS(IF AVAILABLE):




                                                            Appendix E to CFOP 30-1
July 15, 1997                           CFOP 30-1




                (This page is blank.)




                         E-2
July 15, 1997                                                                   CFOP 30-1


                       Sample Notice of Proposed Rulemaking

       DEPARTMENT OF CHILDREN AND FAMILIES

       Family Safety and Preservation Program

       RULE TITLE:                                            RULE NO.:

       Medical Treatment                                      65E-41.008

       Ongoing Health Care                                    65E-41.009

       PURPOSE AND EFFECT:     To conform specific rule sections to
       recommendations of the Joint Administrative Procedures Committee
       (JAPC).
       SUMMARY:     The proposed amendment to 65E-41.008(1)(a)1. clarifies
       procedures for obtaining informed consent by telephone; the
       amendment to 65E-41.009(2) clarifies the criteria for a health
       care provider.

       SPECIFIC RULEMAKING AUTHORITY:        39.012, 409.026(8), F.S.

       LAW IMPLEMENTED:     s.39.407, F.S.

       SUMMARY OF THE STATEMENT OF ESTIMATED REGULATORY COST:           (Summary
       set out here if prepared followed by: Any person who wishes to
       provide information regarding the statement of estimated
       regulatory costs, or to provide a proposal for a lower cost
       regulatory alternative must do so in writing within 21 days of
       this notice) or:     An estimate of the regulatory cost was not
       prepared for this rule.)

       IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING
       WILL BE HELD AT THE TIME, DATE, AND PLACE SHOWN BELOW:

       TIME AND DATE:     9 a.m. November 19, 1996

       PLACE:     2729 Fort Knox Blvd.   Tallahassee, FL    32308



       THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULES IS:           John
       Perry, Administrator, Policy Development, Children and Families
       Program Office, 2729 Fort Knox Blvd., Tallahassee, FL         32308




                                                                    Appendix F to CFOP 30-1
July 15, 1997                                                                CFOP 30-1


       THE FULL TEXT OF THE PROPOSED RULES IS:

       65E-41.008      Medical Treatment

                (1)(a)1.   The child protective investigator or service
       counselor may shall take the informed consent form to the parent
       or child for signature.        Also, the A health care provider
       obtaining informed consent by telephone shall require may obtain
       informed consent over the telephone with two witnesses on the
       receiving end; if so and also require the person giving consent
       must to positively identify who they are and what relation they
       are to the minor.      Getting the signature of the parent or child
       is by far the preferred method.
                Specific Authority:    39.012, F.S.

                Law Implemented:   39.407, F.S.

                History--New 5-26-92; Amended--____________________________

       65E-41.009      Ongoing Health Care

                (2)   Based on the health needs of the child and with
       guidance of the child protective investigator or service
       counselor, the shelter parent or provider may shall select any
       appropriate a health care provider who accepts Medicaid
       reimbursement and is an enrolled Medicaid provider as the child’s
       medical home for the provision of on-going health care as long as
       the health care provider accepts Medicaid reimbursement and is an
       enrolled Medicaid provider .        A shelter parent or provider
       selecting the county public health unit will be assigned to the
       nearest child health clinic.
                Specific Authority:    39.012, F.S.
                Law Implemented:   39.407, F.S.
                History--New 5-26-92; Amended--_____________________________

       NAME OF PERSON ORIGINATING PROPOSED RULE:        John Perry

       NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE:
       Linda Radigan

       DATE PROPOSED RULE APPROVED:        October 21, 1997

       DATE NOTICE OF PROPOSED RULE DEVELOPMENT WAS PUBLISHED IN THE
       FLORIDA ADMINISTRATIVE WEEKLY _________________________________



                                             F-2
July 15, 1997                               CFOP 30-1



       Purchase Order No.:   1R1485




                                      F-3
July 15, 1997                                                                CFOP 30-1




                                      RULES OF THE
                          DEPARTMENT OF CHILDREN AND FAMILIES
                        FAMILY SAFETY AND PRESERVATION PROGRAM
                     CHAPTER 10M-41, FLORIDA ADMINISTRATIVE CODE
                  AMENDING SECTIONS 10M-41.008(1)(a)1., and .009(2)


       10M-41.008      Medical Treatment

                (1)(a)1.   The child protective investigator or service

       counselor may shall take the informed consent form to the parent

       or child for signature.      Also, the A health care provider

       obtaining informed consent by telephone shall require may obtain

       informed consent over the telephone with two witnesses on the

       receiving end; if so and also require the person giving consent

       must to positively identify who they are and what relation they

       are to the minor.      Getting the signature of the parent or child

       is by far the preferred method.

                Specific Authority: 39-012, F.S.

                Law Implemented:   39.407, F.S.

                History--New 5-26-92; Amended--___________________


       10M-41.009      Ongoing Health Care

                (2)   Based on the health care needs of the child and with

       guidance of the child protective investigator or service

       counselor, the shelter parent or provider may shall select any

       appropriate a health care provider who accepts Medicaid

       reimbursement and is an enrolled Medicaid provider as the child’s

       medical home for the provision of on-going health care as long as

       the health care provider accepts Medicaid reimbursement and is an

       enrolled Medicaid provider .        A shelter parent or provider




                                             F-4
July 15, 1997                                                            CFOP 30-1


       selecting the county public health unit will be assigned to the

       nearest child health clinic.

                Specific Authority:   39.012, F.S.

                Law Implemented:   39.407, F.S.

                History--New 5-26-92; Amended-- ____________________________




                                           F-5
July 15, 1997                                                               CFOP 30-1




                       DEPARTMENT OF CHILDREN AND FAMILIES
                      FAMILY SAFETY AND PRESERVATION PROGRAM
                   CHAPTER 65E-41, FLORIDA ADMINISTRATIVE CODE
                              EMERGENCY SHELTER CARE



       STATEMENT OF FACTS AND CIRCUMSTANCES


                The amendments to 65E-41.008(1)(a)1 and .009(2) Florida
       Administrative Code, are proposed to comply with recommended
       changes from the Joint Administrative Procedures Committee
       (JAPC).


       SUMMARY OF RULE


                The proposed amendment to 65E-41.008(1)(a)1. clarifies
       procedures for obtaining informed consent by telephone; the
       amendment to 65E-41.009(2) clarifies the criteria for a
       health care provider.


       FEDERAL COMPARISON STATEMENT


                A federal rule on the same subject does not exist.
       OR:      A federal on the same subject is (more or less)
       restrictive than this rule.




                                                               Appendix G to CFOP 30-1
July 15, 1997                                                             CFOP 30-1


                               SAMPLE FINAL RULE TEXT


                                    RULES OF THE
                        DEPARTMENT OF CHILDREN AND FAMILIES
                      FAMILY SAFETY AND PRESERVATION PROGRAM
                   CHAPTER 10M-41, FLORIDA ADMINISTRATIVE CODE
                AMENDING SECTIONS 10M-41.008(1)(a)1., and .009(2)


       10M-41.008      Medical Treatment

                (1)(a)1.   The child protective investigator or service

       counselor may shall take the informed consent form to the

       parent or child for signature.        Also, the A health care

       provider obtaining informed consent by telephone shall

       require may obtain informed consent over the telephone with

       two witnesses on the receiving end; if so and also require

       the person giving consent must to positively identify who

       they are and what relation they are to the minor.        Getting

       the signature of the parent or child is by far the preferred

       method.

                Specific Authority: 39-012, F.S.

                Law Implemented:   39.407, F.S.

                History--New 5-26-92; Amended--___________________


       10M-41.009      Ongoing Health Care

                (2)   Based on the health care needs of the child and

       with guidance of the child protective investigator or

       service counselor, the shelter parent or provider may shall

       select any appropriate a health care provider who accepts

       Medicaid reimbursement and is an enrolled Medicaid provider



                                                              Appendix H to CFOP 30-1
July 15, 1997                                                           CFOP 30-1


       as the child’s medical home for the provision of on-going

       health care as long as the health care provider accepts

       Medicaid reimbursement and is an enrolled Medicaid provider

       .    A shelter parent or provider selecting the county public

       health unit will be assigned to the nearest child health

       clinic.

                Specific Authority:   39.012, F.S.

                Law Implemented:   39.407, F.S.

                History--New 5-26-92; Amended--______________________




                                        H-2
July 15, 1997                                                                                               CFOP 30-1

                    CHAPTER 28-101                              about variances from or waivers of agency rules, and
                                                                indicate how to file a petition for variance or waiver.
                    ORGANIZATION                                         (3) The agency head shall provide a copy of its
                                                                Statement of Agency Organization and Operation to any
28-101.001 Statement of Agency Organization and                 person upon request.
Operation                                                       Specific Authority 120.54(5) FS. Law Implemented
          (1) The agency head shall maintain a current          120.54(5)(b)5. FS. History-New__________.
Statement of Agency Organization and Operation. The
statement shall describe the organization of the agency         PROPOSED EFFECTIVE DATE: April 1, 1997
and outline the general course of the agency's operations.
The purpose of the statement is:
          (a) To inform the public, in a complete and
concise manner, of the nature of the agency's business,
operations, delegation of authority, internal organization
and other related matters;
          (b) To provide assistance to the public when
dealing with the agency; and
          (c) To expedite the processing of agency matters
on behalf of the public.
          (2) The Statement of Agency Organization and
Operation shall:
          (a) Describe the agency head and his or her
duties, as well as state the method of selection or
appointment of the agency head, and the length of his or
her term.
          (b) Describe the organizational units and sub-
units within the agency, including their assigned
functions, duties, responsibilities, statutory authority, and
statutes and rules they are charged with implementing.
The designation of units and sub-units shall be consistent
with Section 20.04, F.S., or as otherwise provided by law.
          (c) Describe the manner by which publications,
documents, forms, applications for licenses, permits and
other similar certifications or rights granted by the
agency, or other information, may be obtained.
          (d) Identify the agency clerk by name, position,
address, and telephone number; and set out his or her
duties and responsibilities.
          (e) State whether documents can be filed by
electronic transmission, including applicable telephone
numbers, and set forth the acceptable nature and scope of
such filings, including the following:
          1. That a party who files a document by
electronic transmission represents that the original
physically signed document will be retained by that party
for the duration of the proceeding and of any subsequent
appeal or subsequent proceeding in that cause, and that
the party shall produce it upon the request of other
parties.
          2. That a party who elects to file a document by
electronic transmission shall be responsible for any delay,
disruption, or interruption of the electronic signals and
accepts the full risk that the document may not be
properly filed with the clerk as a result.
          3. That the filing date for an electronically
transmitted document shall be the date the agency clerk
receives the complete document.
          (f) Identify the name and address of the
appropriate contact person for obtaining information

                                                                                             Appendix I to CFOP 30-1
July 15, 1997                                                                                                      CFOP 30-1

                                                                     NAME OF AGENCY
            CHAPTER 28-102                                           TIME, DATE & PLACE OF MEETING
  AGENDA AND SCHEDULING OF MEETINGS                                  THIS MEETING IS OPEN TO THE PUBLIC
           AND WORKSHOPS                                                      1. Call to Order.
                                                                              2. Review of Minutes.
28-102.001 Notice of Public Meeting, Hearing, or                              3. Old Business: Specific listing of all matters
Workshop.                                                            involving agency discretion or policy-making with brief
28-102.002  Agenda of Meetings, Hearings, and                        summary of each.
Workshops.                                                                    4. New Business: Specific listing of all matters
28-102.003 Emergency Meetings.                                       involving agency discretion or policy-making with brief
                                                                     summary of each.
28-102.001 Notice of Public Meeting, Hearing, or                              5. Other Business: Specific listing of all
Workshop                                                             matters involving agency discretion or policy-making
          (1) Except where otherwise provided, the                   with brief summary of each.
agency shall give at least seven days notice of any public                    (2) The person designated to preside may
meeting, hearing, or workshop by publication in the                  make specific changes in the agenda after it has been
Florida Administrative Weekly. Provisions regarding                  made available for distribution, only for “good cause”
notices of rulemaking hearings are found in Rule 28-                 shown.
103.001. Provisions regarding notices of hearings in                 Specific Authority 120.54(5) FS. Law Implemented
proceedings for determining substantial interests are                120.525 FS. History-New____________.
found in Rules 28-106.208 and 28-106.302.                            PROPOSED EFFECTIVE DATE: April 1, 1997
          (2) The agency shall utilize the following form
in providing notice of the public meeting, hearing, or               28-102.003 Emergency Meetings
workshop.                                                                     (1) The agency may hold an emergency
NOTICE OF PUBLIC MEETING, HEARING, OR                                meeting notwithstanding the provisions of Rules 28-
WORKSHOP                                                             102.001 and 28-102.002 for the purpose of acting upon
          The (name of the agency) announces a public                emergency matters affecting the public health, safety or
meeting, hearing, or workshop to which all persons are               welfare.
invited.                                                                      (2)   Whenever an emergency meeting is
DATE AND TIME: ----                                                  scheduled to be held, the agency shall give notice of the
PLACE: ----                                                          meeting by any procedure that is fair under the
PURPOSE: ----                                                        circumstances, such as notifying at least one major
          A copy of the agenda may be obtained by                    newspaper of general circulation in the area where the
writing to (name of the agency) at (headquarters address)            meeting will take place, and the agency may also notify
or by calling (name) at (phone #).                                   all major wire services of the time, date, place, and
          Pursuant to the provisions of the Americans with           purpose of the meeting.
Disabilities Act, any person requiring special                                (3) Following an emergency meeting, the
accommodations          to      participate      in     this         agency shall publish in the appropriate publication
workshop/hearing/meeting is asked to advise the agency               prescribed by Section 120.54(3), F.S., notice of the
at least 48 hours before the workshop/hearing/meeting by             time, date and place of the meeting, a statement setting
contacting (name) at (telephone number). If you are                  forth the reasons why an emergency meeting was
hearing or speech impaired, please contact the agency by             necessary and a statement setting forth the action taken
calling (telephone number of TDD).                                   at the meeting. This notice is in addition to the notice
Specific Authority 120.54(5) FS. Law Implemented                     requirements of Section 120.525(3)(c), F.S.
120.525 FS. History-New____________.                                 Specific Authority 120.54(5), FS. Law Implemented
PROPOSED EFFECTIVE DATE: April 1, 1997                               120.525(3), 120.54(5)(b)1., FS. History-New _________.
28-102.002       Agenda of Meetings, Hearings, and
Workshops                                                            PROPOSED EFFECTIVE DATE: April 1, 1997
          (1)(a) The agenda shall state with specificity
the items which will be considered at a meeting,
hearing, or workshop. All matters involving the
exercise of agency discretion and policy-making shall
be listed and summarized on the agenda. Matters which
are solely ministerial, or internal administrative matters
which do not affect the interests of the public generally,
may be included on the agenda.
          (b) The agency shall utilize the following
form, or substantially similar form in preparing its
agenda:

                                                               I-2
July 15, 1997                                                                                                    CFOP 30-1

                                                                   rule. The agency should consider the following factors in
                   CHAPTER 28-103                                  determining whether to use negotiated rulemaking:
                    RULEMAKING                                               (a) Whether there is a need for a rule;
                                                                             (b) Whether there are identifiable multiple
28-103.001       Notice of Agency Rulemaking                       interests that will be affected by the rule;
Proceedings.                                                                 (c) Whether a balanced committee of interested
28-103.002 Rule Development Workshops.                             persons who are willing to negotiate in good faith and
28-103.003 Negotiated Rulemaking.                                  who can represent identified interests can be assembled;
28-103.004 Public Hearing.                                                   (d) Whether there is a reasonable likelihood that
28-103.005       Evidentiary Proceeding During                     a committee can reach a consensus within a fixed period
Rulemaking.                                                        of time;
28-103.006 Petitions to Initiate Rulemaking.                                 (e) Whether negotiated rulemaking processes
                                                                   will unreasonably delay implementing legislation;
28-103.001 Advance Notice of Agency Rulemaking                               (f) Whether the agency has resources, including
Proceedings                                                        technical assistance, to commit to support negotiated
          Any person may file a written request with the           rulemaking;
agency to be given advance notice of agency proceedings                      (g) Whether the agency will use the consensus
to adopt, amend, or repeal a rule, as provided in Section          of the committee as the basis for proposing a rule,
120.54(3)(a)3., F.S. The written request may specify that          consistent with its statutory responsibilities.
advance notice is requested of all agency rulemaking                         (2) When the agency chooses to use negotiated
proceedings, or of only those agency rulemaking                    rulemaking, it shall publish a notice in the Florida
proceedings involving specific subjects.                           Administrative Weekly. The notice shall include:
Specific Authority 120.54(5) F.S. Law Implemented                            (a) An announcement that the agency intends to
120.54(2)(a), (3)(a) F.S., History-New_______.                     convene a negotiated rulemaking proceeding;
PROPOSED EFFECTIVE DATE: April 1, 1997                                       (b) A description of the subject and scope of the
28-103.002 Rule Development Workshops                              rule to be developed;
          (1) Whenever requested in writing by any                           (c) In addition to the requirements of Section
affected person, the agency must either conduct a rule             120.54(2)(d)2., F.S., a list of the rulemaking committee
development workshop prior to proposing rules for                  members, including their addresses and business
adoption or the agency head must explain in writing why            telephone numbers;
a workshop is unnecessary. When rule development                             (d) A schedule for completing the work of the
workshops are conducted in various regions of the state,           committee;
they may be conducted either in person or through                            (e) A statement of how persons who believe that
communications media technology as set out in Chapter              their interests are not adequately represented may apply to
28-109, F.A.C.                                                     participate on the committee.
          (2) The agency should consider conducting a                        (3) The agency shall respond in writing to
rule development workshop whenever a workshop would                requests for membership setting forth reasons for granting
help the agency understand and address concerns of                 or denying the requests.
affected persons. The agency should consider the                             (4) The negotiating committee shall be chaired
following factors in determining whether to conduct a              by a neutral facilitator or mediator.                  The
rule development workshop:                                         facilitator/mediator shall serve subject to the approval of
          (a) The complexity or controversial nature of            the committee.
issues being addressed.                                                      (5) The negotiating committee shall report the
          (b) Whether rules being considered for adoption          results of its deliberations to the agency within the time
have an impact on regulated interests.                             frame specified in the notice of negotiated rulemaking.
          (c) Whether rules being considered for adoption          Specific Authority 120.54(5) FS. Law Implemented
involve people with competing interests.                           120.54(2)(d) FS. History-New__________.
          (d) Whether rules being considered for adoption          PROPOSED EFFECTIVE DATE: April 1, 1997
relate to emerging policies for which investigation of the         28-103.004 Public Hearing
factual basis for regulatory alternatives is required.                       (1) The notice of intent to adopt, amend, or
Specific Authority 120.54(5), FS. Law Implemented                  repeal a rule may provide that a public hearing will be
120.54(2)(c), (5), FS. History-New_______.                         held.
PROPOSED EFFECTIVE DATE: April 1, 1997                                       (2) A request for a public hearing, pursuant to
28-103.003 Negotiated Rulemaking                                   Section 120.54(3)(c)1., F.S., shall be in writing and shall
          (1) The agency may develop rules through                 specify how the person requesting the public hearing
negotiated rulemaking. Negotiated rulemaking is a                  would be affected by the proposed rule. The request shall
process that uses a committee of designated                        be submitted to the agency within 21 days after notice of
representatives to draft a mutually acceptable proposed            intent to adopt, amend, or repeal the rule is published as
                                                                   required by law, in accordance with the procedure for

                                                             I-3
July 15, 1997                                                                                                       CFOP 30-1

submitting requests for public hearing stated in the notice         required for the publication of a notice of rulemaking that
of intent to adopt, amend, or repeal the rule.                      a request for evidentiary proceeding has been submitted.
          (3) The agency may conduct a public hearing.              The notice shall contain sufficient information to advise
The agency must conduct a public hearing if the proposed            substantially affected persons of the proceeding.
rule does not relate exclusively to practice or procedure,                    (5)    The agency may determine that the
and if an affected person timely submits a written request.         rulemaking proceeding be conducted under the provisions
          (4) If the notice of intent to adopt, amend, or           of Sections 120.569 and 120.57, F.S., even in the absence
repeal a rule did not notice a public hearing and the               of a specific request.
agency determines to hold a public hearing, the agency                        (6) The agency head or a member thereof may
shall publish notice of a public hearing in the same                conduct the proceeding or it may request that the Division
manner as is required for publication of a notice of                of Administrative Hearings assign an administrative law
rulemaking at least 7 days before the scheduled public              judge to conduct the proceeding. If the agency requests
hearing. The notice shall specify the date, time, and               that the Division of Administrative Hearings assign an
location of the public hearing, and the name, address, and          administrative law judge to conduct the proceeding, the
telephone number of the agency contact person who can               request shall be made within 15 days of the decision to
provide information about the public hearing.                       proceed under Sections 120.569 and 120.57, F.S.
          (5) The purpose of a public hearing is to provide         Specific Authority 120.54(5) FS. Law Implemented
affected persons and other members of the public a                  120.54(3)(c)2. FS. History-New____________.
reasonable opportunity for presentation of evidence,                PROPOSED EFFECTIVE DATE: April 1, 1997
argument and oral statements, within reasonable                     28-103.006 Petitions to Initiate Rulemaking
conditions and limitations imposed by the agency to avoid                     (1) Petitions to initiate rulemaking pursuant to
duplication, irrelevant comments, unnecessary delay, or             Section 120.54(7), F.S., include all petitions to adopt,
disruption of the proceeding.                                       amend, or repeal a rule. All petitions to initiate
          (6) The agency head, any member thereof, or               rulemaking must contain the name, address, and
any person designated by the agency head may preside at             telephone number of the petitioner, the specific rule or
the public hearing. The agency must ensure that the                 action requested, the reasons for the rule or action
persons responsible for preparing the proposed rule are             requested, and the facts showing that the petitioner is
available to explain the agency's proposal and to respond           regulated by the agency or has a substantial interest in the
to questions or comments regarding the proposed rule.               rule or action requested.
          (7) Written statements may be submitted by any                      (2) Petitions to initiate rulemaking shall be filed
person within a specified period of time prior to or                with the agency clerk.
following the public hearing. All timely submitted                  Specific Authority 120.54(5) FS. Law Implemented
written statements shall be considered by the agency and            120.54(7) FS. History-New_____________.
made a part of the rulemaking record.                               PROPOSED EFFECTIVE DATE: April 1, 1997
Specific Authority 120.54(5) FS. Law Implemented
120.525, 120.54(3)(c) FS. History New________.
PROPOSED EFFECTIVE DATE: April 1, 1997
28-103.005 Evidentiary Proceeding During Rulemaking
          (1) At any time before the conclusion of a
public hearing conducted under the provisions of Section
120.54(3), F.S., any person who asserts that his or her
substantial interests will be affected in the proceedings,
and who demonstrates that the rulemaking proceedings do
not provide an adequate opportunity to protect his or her
substantial interests, may request that the rulemaking
proceedings be conducted under the provisions of
Sections 120.569 and 120.57, F.S., to the extent necessary
to provide an adequate opportunity to protect his or her
substantial interests.
          (2) The agency shall determine the merits of the
request and grant or deny it.
          (3) If the agency grants the request, the
rulemaking proceeding shall be suspended until the
evidentiary proceeding has been concluded. The agency
shall not file the proposed rule for adoption until the
request has been denied, or until the issues raised in the
request have been resolved by the agency.
          (4) Unless the agency rejects the request, the
agency shall publish notice in the same manner as is

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July 15, 1997                                                                                                        CFOP 30-1

                                                                               (4) Upon receipt of a petition for variance or
                                                                      waiver, the agency shall furnish a copy of the petition to
                   CHAPTER 28-104                                     any other agency responsible for implementing the rule.
                VARIANCE OR WAIVER                                    Specific Authority 120.54(5)(b)6., 120.542(3) FS. Law
                                                                      Implemented 120.542(5) FS. History-New____________.
28-104.001   Purpose; Construction.                                   PROPOSED EFFECTIVE DATE: April 1, 1997
28-104.002   Petition for Variance or Waiver.
28-104.003   Comments on Petition.                                    28-104.003 Comments on Petition
28-104.004     Petition for Emergency Variance or                               (1) Any interested person or other agency may
Waiver.                                                               submit written comments on the petition for a variance or
28-104.005     Time for Consideration of Emergency                    waiver within 14 days after the notice required by Section
Petition.                                                             120.542(6), F.S. The agency shall state in any order
28-104.006   Request for Information.                                 whether comments were received by the agency.
                                                                                (2) The agency shall maintain the comments as
28-104.001 Purpose; Construction                                      part of the record.
         (1) The purpose of this chapter is to implement                        (3) The right to comment pursuant to this
the provisions of Section 120.542, F.S., by setting forth             section does not alone confer party status in any
the uniform procedures for granting or denying petitions              proceeding arising from a petition for variance or waiver.
for variances from and waivers of agency rules.                       Specific Authority 120.54(5)(b)6., 120.542(3) FS. Law
         (2) This chapter should be read in conjunction               Implemented 120.542(6), 120.542(8) FS. History-
with the provisions of Sections 120.52(18), 120.52(19),               New_____________.
and 120.542, F.S.                                                     PROPOSED EFFECTIVE DATE: April 1, 1997
Specific Authority 120.54(5)(b)6., 120.542(3) FS. Law
Implemented 120.542(3) FS. History-New_________.                      28-104.004 Petition for Emergency Variance or
PROPOSED EFFECTIVE DATE: April 1, 1997                                Waiver
                                                                                (1) A person requesting an emergency variance
28-104.002 Petition for Variance or Waiver                            from or waiver of an agency rule shall so state in the
          (1) A petition for a variance from or waiver of             caption to the petition.
an agency rule shall be filed with the clerk of the agency                      (2) In addition to the other requirements of
that adopted the rule.                                                Section 120.542(5), F.S., and this chapter, the petition
          (2) The petition must include the following                 shall specify:
information:                                                                    (a) The specific facts that make the situation an
          (a) The caption shall read:                                 emergency; and
Petition for (Variance from) or (Waiver                                         (b) The specific facts to show that the petitioner
of) Rule (Citation)                                                   will suffer an immediate adverse effect unless the
          (b) The name, address, telephone number, and                variance or waiver is issued more expeditiously than the
any facsimile number of the petitioner;                               time frames provided in Section 120.542, F.S.
          (c) The name, address, telephone number, and                Specific Authority 120.54(5)(b)6., 120.542(3) FS. Law
any facsimile number of the attorney or qualified                     Implemented          120.542(3),(5).      FS.       History-
representative of the petitioner (if any);                            New__________.
          (d) The applicable rule or portion of the rule;             PROPOSED EFFECTIVE DATE: April 1, 1997
          (e) The citation to the statute the rule is                 28-104.005 Time for Consideration of Emergency
implementing;                                                         Petition
          (f) The type of action requested;                                     (1) The agency shall grant or deny a petition for
          (g) The specific facts that demonstrate a                   emergency variance or waiver within 30 days of its
substantial hardship or a violation of principles of fairness         receipt by the agency. If such petition is not granted or
that would justify a waiver or variance for the petitioner;           denied within this time limit, the petition shall be deemed
          (h) The reason why the variance or the waiver               approved unless the time limit is waived by the petitioner.
requested would serve the purposes of the underlying                            (2) The agency shall issue a written order
statute; and                                                          granting or denying the petition. The order shall state the
          (i) A statement whether the variance or waiver              facts and reasons supporting the agency's action. The
is permanent or temporary. If the variance or waiver is               agency may deny a petition based on its decision that the
temporary, the petition shall include the dates indicating            situation is not an emergency. The petition shall then be
the duration of the requested variance or waiver.                     reviewed by the agency on a non-emergency basis as set
          (3) The petition for a variance or waiver may be            forth in Section 120.542(7), F.S.
withdrawn by the applicant at any time before final                             (3) The duration of an emergency variance or
agency action.                                                        waiver shall be determined by the agency. The agency
                                                                      may also consider a petition requesting the same or
                                                                      similar variance or waiver on a non-emergency basis.

                                                                I-5
July 15, 1997                                                       CFOP 30-1

Specific Authority 120.54(5)(b)6., 120.542(3) FS. Law
Implemented 120.542(3) FS. History-New_________.
PROPOSED EFFECTIVE DATE: April 1, 1997

28-104.006 Request for Information
         (1) When a person inquires of the agency about
the possibility of relief from any rule requirements or the
remedies available pursuant to Section 120.542, F.S., the
agency shall provide the information required by Section
120.542(4), F.S., within 15 days of the inquiry.
         (2) In its response to a request for information,
the agency shall indicate the name and address of the
appropriate contact person for additional information and
shall indicate how a petition for variance or waiver is
filed with the agency.
Specific Authority 120.54(5)(b)6., 120.542(3) FS. Law
Implemented 120.542(4) FS. History

New_________.

PROPOSED EFFECTIVE DATE: April 1, 1997




                                                              I-6
July 15, 1997                                                                                                      CFOP 30-1

                                                                     accordance with Sections 120.569 and 120.57(2), F.S.
               CHAPTER 28-105                                        The agency may rely on the statements of fact set out in
          DECLARATORY STATEMENTS                                     the petition without taking any position with regard to the
                                                                     validity of the facts. Within 90 days of the filing of the
28-105.001    Purpose and Use             of   Declaratory           petition, the agency shall render a final order denying the
Statement.                                                           petition or issuing a declaratory statement.
28-105.002 The Petition.                                             Specific Authority 120.54(5) FS. Law Implemented
28-105.003 Agency Disposition.                                       120.565 FS. History-New__________.

28-105.001 Purpose and Use of Declaratory Statement                  PROPOSED EFFECTIVE DATE: April 1, 1997
         A declaratory statement is a means for resolving
a controversy or answering questions or doubts                                     CHAPTER 28-106
concerning the applicability of statutory provisions, rules,            DECISIONS DETERMINING SUBSTANTIAL
or orders over which the agency has authority. A petition                            INTERESTS
for declaratory statement may be used only to resolve
questions or doubts as to how the statutes, rules, or orders                   PART I GENERAL PROVISIONS
may apply to the petitioner’s particular circumstances. A
declaratory statement is not the appropriate means for               28-106.101 Scope of this Chapter.
determining the conduct of another person or for                     28-106.102 Presiding Officer.
obtaining a policy statement of general applicability from           28-106.103 Computation of Time.
an agency. A petition for declaratory statement must                 28-106.104 Filing.
describe the potential impact of statutes, rules, or orders          28-106.105 Appearances.
upon the petitioner’s interests.                                     28-106.106 Who May Appear; Criteria for Other
Specific Authority 120.54(5) FS. Law Implemented                     Qualified Representatives.
120.565 FS. History-New____________.                                 28-106.107 Standards of Conduct for Qualified
PROPOSED EFFECTIVE DATE: April 1, 1997                               Representatives.
                                                                     28-106.108 Consolidation.
28-105.002 The Petition                                              28-106.109 Notice to Interested Parties.
          A petition seeking a declaratory statement shall           28-106.110 Service of Papers.
be filed with the agency that has the authority to interpret         28-106.111 Point of Entry into Proceedings and
the statute, rule, or order at issue and shall provide the           Mediation.
following information:                                               PART II HEARINGS INVOLVING DISPUTED
          (1) The caption shall read:                                                 ISSUES OF MATERIAL FACT
Petition for Declaratory Statement                                   28-106.201 Initiation of Proceedings.
Before (Name of Agency)                                              28-106.202 Amendment of Petitions.
          (2) The name, address, telephone number, and               28-106.203 Answer.
any facsimile number of the petitioner.                              28-106.204 Motions.
          (3) The name, address, telephone number, and               28-106.205 Intervention.
any facsimile number of the attorney or qualified                    28-106.206 Discovery.
representative (if any) of the petitioner.                           28-106.207 Venue.
          (4) The statutory provision(s), agency rule(s), or         28-106.208 Notice of Hearing.
agency order(s) on which the declaratory statement is                28-106.209 Prehearing Conferences.
sought.                                                              28-106.210 Continuances.
          (5) A description of how the statutes, rules, or           28-106.211 Conduct of Proceedings.
orders may substantially affect the petitioner in the                28-106.212 Subpoenas.
petitioner's particular set of circumstances.                        28-106.213 Evidence.
          (6) The signature of the petitioner or of                  28-106.214 Recordation.
petitioner's attorney or qualified representative.                   28-106.215 Post-hearing Submittals.
          (7) The date.                                              28-106.216 Entry of Recommended Order.
Specific Authority 120.54(54(5) FS. Law Implemented                  28-106.217 Exceptions and Responses.
120.565 FS. History-New___________.                                  PART III PROCEEDINGS AND HEARINGS NOT
PROPOSED EFFECTIVE DATE: April 1, 1997                               INVOLVING DISPUTED ISSUES OF MATERIAL
                                                                     FACT
28-105.003 Agency Disposition                                        28-106.301 Initiation of Proceedings.
          The agency may hold a hearing to consider a                28-106.302 Notice of Proceeding.
petition for declaratory statement. If the agency is headed          28-106.303 Motions.
by a collegial body, it shall take action on a petition for          28-106.304 Continuances
declaratory statement only at a duly noticed public                  28-106.305 Conduct of Proceedings.
meeting. If a hearing is held, it shall be conducted in              28-106.306 Recordation.

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July 15, 1997                                                                                                      CFOP 30-1

28-106.307 Post-Hearing Submittals.                                 service is made by hand, facsimile telephone
PART IV MEDIATION                                                   transmission, or other electronic transmission or when the
28-106.401 Scope.                                                   period of time begins pursuant to a type of notice
28-106.402 Contents of Request for Mediation.                       described in Rule 28-106.111.
28-106.403 Allocation of Costs and Fees.                            Specific Authority 120.54(5) FS. Law Implemented
28-106.404 Contents of Agreement to Mediate.                        120.569, 120.57 FS. History-New__________.
28-106.405 Standards of Conduct for Mediators.                      PROPOSED EFFECTIVE DATE: April 1, 1997

         PART I GENERAL PROVISIONS                                  28-106.104 Filing
                                                                              (1) In construing these rules or any order of a
28-106.101 Scope of this Chapter                                    presiding officer, filing shall mean received by the office
         This chapter shall apply in all proceedings in             of the agency clerk during normal business hours or by
which the substantial interests of a party are determined           the presiding officer during the course of a hearing.
by the agency and shall be construed to secure the just,                      (2) All pleadings filed with the agency shall
speedy, and inexpensive determination of every                      contain the following:
proceeding. This chapter applies to all proceedings under                     (a) The style of the proceeding involved;
Chapter 120 except as follows:                                                (b) The docket, case or file number, if any;
         (1)     Where the agency has adopted rules                           (c) The name of the party on whose behalf the
covering the subject matter pursuant to Section                     pleading is filed;
120.54(5)(a)2., F.S.;                                                         (d) The name, address, and telephone number of
         (2) Agency investigations or determinations of             the person filing the pleading;
probable cause preliminary to agency action; and                              (e) The signature of the person filing the
         (3) Mediation conducted pursuant to Section                pleading; and
120.573. The notice provisions in Rule 28-106.111 and                         (f) A certificate of service that copies have been
Part IV of this Subchapter apply to such mediation.                 furnished to all other parties as required by subsection (4)
Specific Authority 120.54(5) FS. Law Implemented                    of this rule.
120.569, 120.57 FS. History-New__________.                                    (3) Any document received by the office of the
PROPOSED EFFECTIVE DATE: April 1, 1997                              agency clerk after 5:00 p.m. shall be filed as of 8:00 a.m.
                                                                    on the next regular business day.
28-106.102 Presiding Officer                                                  (4) Whenever a party files a pleading or other
         "Presiding officer" means an agency head, or               document with the agency, that party shall serve copies of
member thereof, who conducts a hearing or proceeding                the pleading or other document upon all other parties to
on behalf of the agency, an administrative law judge                the proceeding. A certificate of service shall accompany
assigned by the Division of Administrative Hearings, or             each pleading or other document filed with the agency.
any other person authorized by law to conduct                                 (5) All papers filed shall be styled to indicate
administrative hearings or proceedings who is qualified to          clearly the subject matter of the paper and the party
resolve the legal issues and procedural questions which             requesting relief.
may arise.                                                                    (6) All original pleadings shall be on white
Specific Authority 120.54(5) FS. Law Implemented                    paper measuring 8½ by 11 inches, with margins of no less
120.569, 120.57 FS. History-New____________.                        than one inch. Originals shall be printed or typewritten.
PROPOSED EFFECTIVE DATE: April 1, 1997                                        (7) A party who files a document by electronic
                                                                    transmission represents that the original physically signed
28-106.103 Computation of Time                                      document will be retained by that party for the duration of
         In computing any period of time allowed by this            that proceeding and of any subsequent appeal or
chapter, by order of a presiding officer, or by any                 subsequent proceeding in that cause. The party shall
applicable statute, the day of the act from which the               produce it upon the request of any other party or the
period of time begins to run shall not be included. The             agency clerk.
last day of the period shall be included unless it is a                       (8) Any party who elects to file any document
Saturday, Sunday, or legal holiday, in which event the              by electronic transmission shall be responsible for any
period shall run until the end of the next day which is not         delay, disruption, or interruption of the electronic signals
a Saturday, Sunday, or legal holiday. When the period of            and accepts the full risk that the document may not be
time allowed is less than 7 days, intermediate Saturdays,           properly filed with the clerk as a result.
Sundays, and legal holidays shall be excluded in the                          (9)    The filing date for an electronically
computation. As used in these rules, legal holiday means            transmitted document shall be the date the agency clerk
those days designated in Section 110.117, F.S. Except as            receives the complete document.
provided in Rule 28-106.217, five days shall be added to            Specific Authority 120.54(5) FS. Law Implemented
the time limits when service has been made by U.S. mail.            120.569, 120.57 FS. History-New__________.
One business day shall be added when service is made by             PROPOSED EFFECTIVE DATE: April 1, 1997
overnight courier. No additional time shall be added if

                                                              I-8
July 15, 1997                                                                                                          CFOP 30-1

28-106.105 Appearances                                                           (a)      The representative's knowledge of
          (1) Counsel or qualified representatives who file            jurisdiction;
a request for a hearing involving disputed issues of                             (b) The representative's knowledge of the
material fact with the agency have entered an appearance               Florida Rules of Civil Procedure relating to discovery in
in the proceeding and shall be deemed counsel or                       an administrative proceeding;
qualified representative of record. All others who seek to                       (c) The representative's knowledge regarding
appear shall file a notice of appearance as soon as                    the rules of evidence, including the concept of hearsay in
possible.                                                              an administrative proceeding;
          (2) Service on counsel of record or on a                               (d) The representative's knowledge regarding
qualified representative shall be the equivalent of service            the factual and legal issues involved in the proceedings;
on the party represented.                                              and
          (3) On written motion served on the party                              (e) The representative's knowledge of and
represented and all other parties of record, the presiding             compliance with the Standards of Conduct for Qualified
officer shall grant counsel of record and qualified                    Representatives, Rule 28-106.107.
representatives leave to withdraw for good cause shown.                          (5)    If the presiding officer determines a
          (4) A qualified representative who has filed an              representative is not qualified, the reasons for the decision
initial pleading or notice of appearance for a party shall             shall be in writing and included in the record.
be deemed the qualified representative of record until the             Specific Authority 120.54(5) FS. Law Implemented
presiding officer makes the determination required by                  120.569, 120.57 FS. History-New__________.
Rule 28-106.106.                                                       PROPOSED EFFECTIVE DATE: April 1, 1997
Specific Authority 120.54(5) FS. Law Implemented
120.569, 120.57 FS. History-New__________.                             28-106.107      Standards of Conduct for Qualified
PROPOSED EFFECTIVE DATE: April 1, 1997                                 Representatives
                                                                                The following standards of conduct are
28-106.106 Who May Appear; Criteria for Qualified                      mandatory for all qualified representatives.
Representatives                                                                 (1) A representative shall exercise due diligence
          (1) Any party who appears in any agency                      to insure that any motion or pleading is filed and argued
proceeding has the right, at his or her own expense, to be             in good faith.
represented by counsel or by a qualified representative.                        (2) A representative shall advise the client to
Counsel means a member of The Florida Bar or a law                     obey the law.
student certified pursuant to Chapter 11 of the Rules                           (3) A representative shall not:
Regulating the Florida Bar.                                                     (a) Engage in conduct involving dishonesty,
          (2)(a) A party seeking representation by a                   fraud, deceit, or misrepresentation;
qualified representative shall file a written request with                      (b) Engage in conduct that is prejudicial to the
the presiding officer as soon as practicable. The request              administration of justice;
shall identify the name, address and telephone number of                        (c) Handle a matter which the representative
the representative and shall state that the party is aware of          knows or should know that he or she is not competent to
the services which the representative can provide, and is              handle;
aware that the party can be represented by an attorney at                       (d) Handle a legal or factual matter without
the party's own expense and has chosen otherwise.                      adequate preparation;
          (b) The presiding officer shall assure that the                       (e)      Communicate, or cause another to
representative is qualified to appear in the administrative            communicate, as to the merits of the proceeding with the
proceeding and capable of representing the rights and                  presiding officer except on the record or in writing with a
interests of the party. The presiding officer may consider             copy promptly delivered to the opposing party; or
a representative's sworn affidavit setting forth the                            (f)     Communicate with an adverse party
representative's qualifications.                                       regarding matters at issue in the administrative
          (c) The presiding officer shall determine the                proceeding where the representative knows that the
qualifications of the representative within a reasonable               adverse party is represented by an attorney or other
time after the request required by paragraph (a) is filed.             qualified representative.
          (3) The presiding officer shall authorize the                         (4) Failure to comply with these provisions shall
representative to appear if the presiding officer is satisfied         authorize the presiding officer to disqualify the
that the representative has the necessary qualifications to            representative appearing in the administrative proceeding.
responsibly represent the party's interests in a manner                Specific Authority 120.54(5) FS. Law Implemented
which will not impair the fairness of the proceeding or the            120.569, 120.57 FS. History-New____________.
correctness of the action to be taken.                                 PROPOSED EFFECTIVE DATE: April 1, 1997
          (4)    The presiding officer shall make a
determination of the qualifications of the representative in           28-106.108 Consolidation
light of the nature of the proceedings and the applicable                       If there are separate matters which involve
law. The presiding officer shall consider:                             similar issues of law or fact, or identical parties, the

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matters may be consolidated if it appears that                                    (5) The agency may publish, and any person
consolidation would promote the just, speedy, and                       who has timely requested mediation may, at the person’s
inexpensive resolution of the proceedings, and would not                own expense, cause the agency to publish, a notice of the
unduly prejudice the rights of a party.                                 existence of the mediation proceeding in the Florida
Specific Authority 120.54(5) FS. Law Implemented                        Administrative Weekly or in a newspaper of general
120.569, 120.57 FS. History-New__________.                              circulation in the affected area. The mediation notice can
PROPOSED EFFECTIVE DATE: April 1, 1997                                  be included in the notice of intended agency action.
                                                                                  (a) The notice of the mediation proceeding shall
28-106.109 Notice to Interested Parties                                 include:
          If it appears that the determination of the rights                      1. A statement that the mediation could result in
of parties in a proceeding will necessarily involve a                   a settlement adopted by final agency action;
determination of the substantial interests of persons who                         2. A statement that the final action arising from
are not parties, the presiding officer may enter an order               mediation may be different from the intended action set
requiring that the absent person be notified of the                     forth in the notice which resulted in a timely request for
proceeding and be given an opportunity to be joined as a                mediation;
party of record.                                                                  3. A statement that any person whose substantial
Specific Authority 120.54(5) FS. Law Implemented                        interests may be affected by the outcome of the mediation
120.569, 120.57 FS. History-New___________.                             shall within 21 days of the notice of mediation proceeding
PROPOSED EFFECTIVE DATE: April 1, 1997                                  file a request with the agency to participate in the
                                                                        mediation; and
28-106.110 Service of Papers                                                      4. An explanation of the procedures for filing
          Unless the presiding officer otherwise orders,                such a request.
every pleading and every other paper filed in a                                   (b) The notice shall also advise that in the
proceeding, except applications for witness subpoenas,                  absence of a timely request to participate in the
shall be served on each party or the party's representative             mediation, any person whose substantial interests are or
at the last address of record.                                          may be affected by the result of the mediation waives any
Specific Authority 120.54(5) FS. Law Implemented                        right to participate in the mediation, and that waiver of
120.569, 120.57 FS. History-New____________.                            participation in the mediation is also a waiver of that
PROPOSED EFFECTIVE DATE: April 1, 1997                                  person's ability to challenge the mediated final agency
                                                                        action pursuant to Chapter 120, F.S.
28-106.111 Point of Entry into Proceedings and                                    (6) If mediation does not result in the settlement
Mediation                                                               of the administrative dispute, the agency shall, within 7
          (1) The notice of agency decision shall contain               days of the conclusion of the mediation, advise all
the information required by Section 120.569(1), F.S. The                participants in writing of the right to request, within 14
notice shall also advise whether mediation under Section                days, an administrative hearing pursuant to Sections
120.573, F.S., is available as an alternative remedy, and if            120.569 and 120.57, F.S.
available, that pursuit of mediation will not adversely                 Specific Authority 120.54(5) FS. Law Implemented
affect the right to administrative proceedings in the event             120.569, 120.57, 120.573 FS. History-New_______.
mediation does not result in a settlement.                              PROPOSED EFFECTIVE DATE: April 1, 1997
          (2) Unless otherwise provided by law, persons
seeking a hearing on an agency decision which does or
may determine their substantial interests shall file a                    PART II     HEARINGS INVOLVING DISPUTED
petition for hearing or for mediation with the agency                               ISSUES OF MATERIAL FACT
within 21 days of receipt of written notice of the decision.
          (3) An agency may, for good cause shown,                      28-106.201 Initiation of Proceedings
grant a request for an extension of time for filing an initial                    (1)    Unless otherwise provided by statute,
pleading. Requests for extension of time must be filed                  initiation of proceedings shall be made by written petition
with the agency prior to the applicable deadline. Such                  to the agency responsible for rendering final agency
requests for extensions of time shall contain a certificate             action. The term "petition" includes any document that
that the moving party has consulted with all other parties,             requests an evidentiary proceeding and asserts the
if any, concerning the extension and that the agency and                existence of a disputed issue of material fact. Each
any other parties agree to said extension. A timely                     petition shall be legible and on 8 ½ by 11 inch white
request for extension of time shall toll the running of the             paper. Unless printed, the impression shall be on one side
time period for filing a petition until the request is acted            of the paper only and lines shall be double-spaced.
upon.                                                                             (2) All petitions filed under these rules shall
          (4) Any person who receives written notice of                 contain:
an agency decision and who fails to file a written request                        (a) The name and address of each agency
for a hearing or mediation within 21 days waives the right              affected and each agency's file or identification number, if
to request a hearing or mediation on such matters.                      known;

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July 15, 1997                                                                                                          CFOP 30-1

          (b) The name, address, and telephone number of               during a hearing, and shall fully state the action requested
the petitioner; the name, address, and telephone number                and the grounds relied upon. The original written motion
of the petitioner's representative, if any, which shall be             shall be filed with the presiding officer. When time
the address for service purposes during the course of the              allows, the other parties may, within 7 days of service of
proceeding; and an explanation of how the petitioner's                 a written motion, file a response in opposition. Written
substantial interests will be affected by the agency                   motions will normally be disposed of after the response
determination;                                                         period has expired, based on the motion, together with
          (c) A statement of when and how the petitioner               any supporting or opposing memoranda. The presiding
received notice of the agency decision;                                officer shall conduct such proceedings and enter such
          (d) A statement of all disputed issues of material           orders as are deemed necessary to dispose of issues raised
fact. If there are none, the petition must so indicate;                by the motion.
          (e) A concise statement of the ultimate facts                          (2) Unless otherwise provided by law, motions
alleged, as well as the rules and statutes which entitle the           to dismiss the petition shall be filed no later than 20 days
petitioner to relief; and                                              after service of the petition on the party.
          (f) A demand for relief.                                               (3) Motions, other than a motion to dismiss,
          (3) Upon receipt of a petition involving disputed            shall include a statement that the movant has conferred
issues of material fact, the agency shall grant or deny the            with all other parties of record and shall state as to each
petition, and if granted shall, unless otherwise provided              party whether the party has any objection to the motion.
by law, refer the matter to the Division of Administrative                       (4) Any party may move for summary final
Hearings with a request that an administrative law judge               order whenever there is no genuine issue as to any
be assigned to conduct the hearing. The request shall be               material fact. The motion may be accompanied by
accompanied by a copy of the petition and a copy of the                supporting affidavits. All other parties may, within seven
notice of agency action.                                               days of service, file a response in opposition, with or
          (4) A petition may be dismissed if it is not in              without supporting affidavits. A party moving for
substantial compliance with subsection (2) of this rule or             summary final order later than twelve days before the
it has been untimely filed. Dismissal of a petition shall, at          final hearing waives any objection to the continuance of
least once, be without prejudice to petitioner's filing a              the final hearing.
timely amended petition curing the defect, unless it                             (5) Motions for extension of time shall be filed
conclusively appears from the face of the petition that the            prior to the expiration of the deadline sought to be
defect cannot be cured.                                                extended and shall state good cause for the request.
          (5) The agency shall promptly give written                   Specific Authority 120.54(5) FS. Law Implemented
notice to all parties of the action taken on the petition,             120.569, 120.57 FS. History-New___________.
shall state with particularity its reasons if the petition is          PROPOSED EFFECTIVE DATE: April 1, 1997
not granted, and shall state the deadline for filing an
amended petition if applicable.                                        28-106.205 Intervention
Specific Authority 120.54(5) FS. Law Implemented                                 Persons other than the original parties to a
120.569, 120.57 FS. History-New__________.                             pending proceeding whose substantial interest may be
PROPOSED EFFECTIVE DATE: April 1, 1997                                 determined in the proceeding and who desire to become
                                                                       parties may petition the presiding officer for leave to
28-106.202 Amendment of Petitions                                      intervene. Except for good cause shown, petitions for
         The petitioner may amend the petition prior to                leave to intervene must be filed at least 20 days before the
the designation of the presiding officer by filing and                 final hearing. The petition shall conform to Rule
serving an amended petition in the manner prescribed for               28-106.201(2), and shall include allegations sufficient to
filing and serving an original petition. The petitioner may            demonstrate that the intervenor is entitled to participate in
amend the petition after the designation of the presiding              the proceeding as a matter of constitutional or statutory
officer only upon order of the presiding officer.                      right or pursuant to agency rule, or that the substantial
Specific Authority 120.54(5) FS. Law Implemented                       interests of the intervenor are subject to determination or
120.569, 120.57 FS. History-New__________.                             will be affected through the proceeding. The presiding
PROPOSED EFFECTIVE DATE: April 1, 1997                                 officer may impose terms and conditions on the
                                                                       intervenor to limit prejudice to other parties.
28-106.203 Answer                                                      Specific Authority 120.54(5) FS. Law Implemented
        A respondent may file an answer to the petition.               120.569, 120.57 FS. History-New_____________.
Specific Authority 120.54(5) FS. Law Imlemented                        PROPOSED EFFECTIVE DATE: April 1, 1997
120.569, 120.57 FS. History-New__________.
PROPOSED EFFECTIVE DATE: April 1, 1997                                 28-106.206 Discovery
                                                                                After commencement of a proceeding, parties
28-106.204 Motions                                                     may obtain discovery through the means and in the
        (1) All requests for relief shall be by motion.                manner provided in Rules 1.280 through 1.400, Florida
All motions shall be in writing unless made on the record              Rules of Civil Procedure. The presiding officer may issue

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July 15, 1997                                                                                                         CFOP 30-1

appropriate orders to effectuate the purposes of discovery            discovery, to prevent delay, and to promote the just,
and to prevent delay, including the imposition of                     speedy, and inexpensive determination of all aspects of
sanctions in accordance with the Florida Rules of Civil               the case, including bifurcating the proceeding.
Procedure, except contempt.                                           Specific Authority 120.54(5) FS. Law Implemented
Specific Authority 120.54(5) FS. Law Implemented                      120.569, 120.57 FS, History-New__________.
120.569, 120.57 FS. History-New__________.                            PROPOSED EFFECTIVE DATE: April 1, 1997
PROPOSED EFFECTIVE DATE: April 1, 1997
                                                                      28-106.212 Subpoenas
28-106.207 Venue                                                                (1) Upon the request of any party, a presiding
          (1) Whenever practicable and permitted by                   officer shall issue subpoenas for the attendance of
statute or rule, hearings shall be held in the area of                witnesses for deposition or at the hearing. The requesting
residence of the non-governmental parties affected by                 party shall specify whether the witness is also requested
agency action, or at the place most convenient to all                 to bring documents.
parties as determined by the presiding officer.                                 (2) A subpoena may be served by any person
          (2) Failure to respond timely to any order                  specified by law to serve process or by any person who is
requiring or allowing the parties to suggest an appropriate           not a party and who is 18 years of age or older. Service
locality for final hearing may constitute a waiver of                 shall be made by delivering a copy to the person named in
venue.                                                                the subpoena. Proof of service shall be made by affidavit
Specific Authority 120.54(5) FS. Law Implemented                      of the person making service if not served by a person
120.569, 120.57 FS. History-New____________.                          specified by law to serve process.
PROPOSED EFFECTIVE DATE: April 1, 1997                                          (3) Any motion to quash or limit the subpoena
                                                                      shall be filed with the presiding officer and shall state the
28-106.208 Notice of Hearing                                          grounds relied upon.
         The presiding officer shall set the time and place           Specific Authority 120.54(5) FS. Law Implemented
for all hearings and shall serve written notice on all                120.569, 120.57 FS, History-New__________.
parties at their address of record. No less than 14 days              PROPOSED EFFECTIVE DATE: April 1, 1997
notice shall be given for the hearing on the merits of the
petition unless otherwise agreed by the parties or unless             28-106.213 Evidence
otherwise provided by law.                                                      (1) Oral evidence shall be taken only on oath or
Specific Authority 120.54(5) FS. Law Implemented                      affirmation.
120.569, 120.57 FS, History-New__________.                                      (2) Each party shall have the right to impeach
PROPOSED EFFECTIVE DATE: April 1, 1997                                any witness regardless of which party called the witness
                                                                      to testify.
28-106.209 Prehearing Conferences                                               (3) Hearsay evidence, whether received in
          At any time after a matter has been filed with the          evidence over objection or not, may be used to
agency, the presiding officer may direct the parties to               supplement or explain other evidence, but shall not be
confer for the purpose of clarifying and simplifying                  sufficient in itself to support a finding unless the evidence
issues, discussing the possibilities of settlement,                   falls within an exception to the hearsay rule as found in
examining documents and other exhibits, exchanging                    Chapter 90, F.S.
names and addresses of witnesses, resolving other                               (4) The rules of privilege apply to the same
procedural matters, and entering into a prehearing                    extent as in civil actions under Florida law.
stipulation.                                                                    (5) If requested and if the necessary equipment
Specific Authority 120.54(5) FS. Law Implemented                      is reasonably available, testimony may be taken by means
120.569, 120.57 FS, History-New__________.                            of video teleconference or by telephone.
PROPOSED EFFECTIVE DATE: April 1, 1997                                          (a) If a party cross-examining the witness
                                                                      desires to have the witness review documents or other
                                                                      items not reasonably available for the witness to review at
28-106.210 Continuances                                               that time, then the party shall be given a reasonable
          The presiding officer may grant a continuance of            opportunity to complete the cross-examination at a later
a hearing for good cause shown. Except in cases of                    time or date for the purpose of making those documents
emergency, requests for continuance must be made at                   or other items available to the witness.
least five days prior to the date noticed for the hearing.                      (b) For any testimony taken by means of video
Specific Authority 120.54(5) FS. Law Implemented                      teleconference or telephone, a notary public must be
120.569, 120.57 FS, History-New__________.                            physically present with the witness to administer the oath.
PROPOSED EFFECTIVE DATE: April 1, 1997                                The notary public shall provide a written certification to
                                                                      be filed with the presiding officer confirming the identity
28-106.211 Conduct of Proceedings                                     of the witness, and confirming the affirmation or oath by
        The presiding officer before whom a case is                   the witness. It shall be the responsibility of the party
pending may issue any orders necessary to effectuate

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July 15, 1997                                                                                                         CFOP 30-1

calling the witness to secure the services of a notary                          All parties may submit proposed findings of fact,
public.                                                                conclusions of law, orders, and memoranda on the issues
Specific Authority 120.54(5) FS. Law Implemented                       within a time designated by the presiding officer. Unless
120.569, 120.57 FS, History-New__________.                             authorized by the presiding officer, proposed orders shall
PROPOSED EFFECTIVE DATE: April 1, 1997                                 be limited to 40 pages.
                                                                       Specific Authority 120.54(5) FS. Law Implemented
28-106.214 Recordation                                                 120.569, 120.57 FS, History-New__________.
          (1) Responsibility for preserving the testimony              PROPOSED EFFECTIVE DATE: April 1, 1997
at final hearings shall be that of the agency transmitting
the petition to the Division of Administrative Hearings                28-106.216 Entry of Recommended Order
pursuant to Sections 120.569 and 120.57, F.S., the agency                       (1) If a hearing is conducted by other than the
whose rule is being challenged, or the agency whose                    agency head, or member thereof, the presiding officer
action initiated the proceeding. Proceedings shall be                  shall, within 30 days after the hearing or receipt of the
recorded by a certified court reporter or by recording                 hearing transcript, whichever is later, file a recommended
instruments.                                                           order which shall include a caption, time and place of
          (2) No later than 10 days prior to the final                 hearing, appearances entered at the hearing, statement of
hearing, the agency shall notify the parties of the method             the issues, findings of fact and conclusions of law,
by which the agency will record the testimony at the final             separately stated, and recommendation for final agency
hearing. Any party to a hearing may, at its own expense,               action.
provide a certified court reporter if the agency does not.                      (2) By agreeing to a deadline for filing post-
The presiding officer may provide a certified court                    hearing submissions that is more than 10 days after the
reporter. At hearings reported by a court reporter, any                conclusion of the hearing or the filing of the hearing
party who wishes a transcript of the testimony shall order             transcript, whichever is later, a party waives the
the same at its own expense. If a court reporter records               provisions of subsection (1) above.
the proceedings, the recordation shall become the official             Specific Authority 120.54(5) FS. Law Implemented
transcript.                                                            120.569, 120.57 FS, History-New__________.
          (3) If the agency elects to record the proceeding            PROPOSED EFFECTIVE DATE: April 1, 1997
by videotape, the agency shall:
          (a) Notify the parties as to the impact the                  28-106.217 Exceptions and Responses
agency's election may have on the party's ability to                            (1) Parties may file exceptions to findings of
preserve a record for appellate or other subsequent                    fact and conclusions of law contained in recommended
proceedings;                                                           orders with the agency responsible for rendering final
          (b) Use a competent video camera operator who                agency action within 15 days of entry of the
has been trained in the techniques of using video camera               recommended order except in proceedings conducted
equipment so as not to disrupt the proceeding and who                  pursuant to Section 120.57(3), F.S.
will not participate in the proceeding as an agency                             (2) Any party may file responses to another
representative or as a witness;                                        party’s exceptions within 10 days from the date the
          (c) Maintain in the record of the proceeding the             exceptions were served.
original videotape and an affidavit of accuracy and                             (3)    Notwithstanding Rule 28-106.103, no
completeness signed by the person recording the                        additional time shall be added to the time limits for filing
proceeding; and                                                        exceptions or responses to exceptions when service has
          (d) Provide a copy of the videotape to the                   been made by mail.
presiding officer and, upon request, to all parties, together          Specific Authority 120.54(5) FS. Law Implemented
with an index specifying the location of the direct and                120.569, 120.57 FS, History-New__________.
cross-examination of every witness. Any party requesting               PROPOSED EFFECTIVE DATE: April 1, 1997
a copy of the videotape and index shall order the same at
its own expense.                                                       PART III PROCEEDINGS AND HEARINGS NOT
          (4) If the agency elects to videotape the                    INVOLVING DISPUTED ISSUES OF MATERIAL
proceeding and a non-agency party elects to provide a                                  FACT
certified court reporter, the non-agency party shall notify
all other parties no later than 3 business days prior to the           28-106.301 Initiation of Proceedings
hearing. In such event the transcript provided by the                            (1) Initiation of a proceeding shall be made by
certified court reporter shall be the official transcript.             written petition to the agency responsible for rendering
Specific Authority 120.54(5) FS. Law Implemented                       final agency action. The term "petition" includes any
120.569, 120.57 FS, History-New__________.                             document which requests a proceeding. Each petition
PROPOSED EFFECTIVE DATE: April 1, 1997                                 shall be legible and on 8 ½ by 11 inch white paper or on a
                                                                       form provided by the agency. Unless printed, the
28-106.215 Post-hearing Submittals                                     impression shall be on one side of the paper only and
                                                                       lines shall be double-spaced.

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July 15, 1997                                                                                                         CFOP 30-1

           (2) All petitions filed under these rules shall             PROPOSED EFFECTIVE DATE: April 1, 1997
contain:
          (a) The name and address of each agency                      28-106.303 Motions
affected and each agency's file or identification number, if                     (1) All requests for relief shall be by motion.
known;                                                                 All motions shall be in writing unless made on the record
          (b) The name, address, and telephone number of               during a hearing and shall fully state the action requested
the petitioner; the name, address, and telephone number                and the grounds relied upon. The original motion shall be
of the petitioner's representative, if any, which shall be             filed with the presiding officer. When time allows, the
the address for service purposes during the course of the              other parties may, within seven days of service of a
proceeding; and an explanation of how the petitioner's                 written motion, file a response in opposition. Written
substantial interests will be affected by the agency                   motions will normally be disposed of after the response
determination;                                                         period has expired, based on the motion, together with
          (c) A statement of when and how the petitioner               any supporting or opposing memoranda. The presiding
received notice of the agency decision;                                officer shall conduct proceedings and enter such orders as
          (d) A concise statement of the ultimate facts                are deemed necessary to dispose of issues raised by the
alleged, as well as the rules and statutes which entitle the           motion.
petitioner to relief; and                                                        (2) Motions, other than a motion to dismiss,
          (e) A demand for relief.                                     shall include a statement that the movant has conferred
          (3) If the petition does not set forth disputed              with all other parties of record and shall state whether any
issues of material fact, the agency shall refer the matter to          party has an objection to the motion.
the presiding officer designated by the agency with a                            (3) Motions for extension of time shall be filed
request that the matter be scheduled for a proceeding not              prior to the expiration of the deadline sought to be
involving disputed issues of material fact. The request                extended and shall state good cause for the request.
shall be accompanied by a copy of the petition and a copy              Specific Authority 120.54(5) FS. Law Implemented
of the notice of agency action.                                        120.569, 120.57 FS, History-New__________.
          (4) A petition may be dismissed if it is not in              PROPOSED EFFECTIVE DATE: April 1, 1997
substantial compliance with subsection (2) of this Rule or
it has been untimely filed. Dismissal of a petition shall, at          28-106.304 Continuances
least once, be without prejudice to petitioner's filing a                        The presiding officer may grant a continuance of
timely amended petition curing the defect, unless it                   a hearing for good cause shown. Except in cases of
conclusively appears from the face of the petition that the            emergency, requests for continuance must be made at
defect cannot be cured.                                                least five days prior to the date noticed for the hearing.
          (5) The agency shall promptly give written                   Specific Authority 120.54(5) FS. Law Implemented
notice to all parties of the action taken on the petition,             120.569, 120.57 FS, History-New__________.
shall state with particularity its reasons if the petition is          PROPOSED EFFECTIVE DATE: April 1, 1997
not granted, and shall state the deadline for filing an
amended petition if applicable.                                        28-106.305 Conduct of Proceedings
Specific Authority 120.54(5) FS. Law Implemented                                 (1) The presiding officer before whom a case is
120.569, 120.57 FS, History-New__________.                             pending may issue any orders necessary to effectuate
PROPOSED EFFECTIVE DATE: April 1, 1997                                 discovery, to prevent delay, and to promote the just,
                                                                       speedy, and inexpensive determination of all aspects of
28-106.302 Notice of Proceeding                                        the case, including bifurcating the proceeding.
          (1) The agency shall serve written notice on all                       (2) If during the course of the proceeding a
parties at their address of record, allowing at least 14 days          disputed issue of material fact arises, then, unless waived
from the date of the notice for the parties to provide any             by all parties, the proceeding under this Part shall be
documents, memorandum of law, or other written                         terminated and a proceeding under Part II shall be
material in support of or opposition to the agency action              conducted.
or refusal to act or in aggravation or mitigation of any               Specific Authority 120.54(5) FS. Law Implemented
penalty which may be imposed. If only written evidence                 120.569, 120.57 FS, History-New__________.
is permitted by the agency, the notice shall provide that              PROPOSED EFFECTIVE DATE: April 1, 1997
all other parties shall have 14 days to respond in writing
to that written evidence.                                              28-106.306 Recordation
          (2) The agency may schedule a hearing on the                          (1) Responsibility for preserving the testimony
matter for the purpose of taking oral evidence or                      at final hearings shall be that of the agency responsible
argument. If it does so, the agency shall serve written                for taking final agency action. Proceedings shall be
notice at least 14 days prior to the hearing, setting forth            recorded by a certified court reporter or by recording
the place, date, and time of the hearing.                              instruments.
Specific Authority 120.54(5) FS. Law Implemented                                (2) Any party to a hearing may, at its own
120.569, 120.57 FS, History-New__________.                             expense, provide a certified court reporter if the agency

                                                                I-14
July 15, 1997                                                                                                       CFOP 30-1

does not. The presiding officer may provide a certified                        (2) Participation in the mediation does not
court reporter. At hearings reported by a court reporter,              confer or limit standing in any subsequent judicial or
any party who wishes a transcript of the testimony shall               administrative proceeding. However, non-participation
order the same at its own expense. If a court reporter                 may limit standing as provided in Rule 28-106.111.
records the proceedings, the recordation shall become the              Specific Authority 120.54(5) FS. Law Implemented
official transcript.                                                   120.573 FS. History-New_____________.
           (3) If the agency elects to record the proceeding           PROPOSED EFFECTIVE DATE: April 1, 1997
by videotape, the agency shall:
           (a) Notify the parties that it will use a video             28-106.402 Contents of Request for Mediation
camera rather than a court reporter to record the                               The request for mediation shall contain:
proceeding;                                                                     (1) The name, address, and telephone number of
           (b) Notify the parties as to the impact the                 the person requesting mediation and that person's
agency's election may have on the party's ability to                   representative, if any;
preserve a record for appellate or other subsequent                             (2) A statement of the preliminary agency
proceedings;                                                           action;
           (c) Use a competent video camera operator who                        (3)     An explanation of how the person's
has been trained in the techniques of using video camera               substantial interests will be affected by the agency
equipment so as not to disrupt the proceeding and who                  determination; and
will not participate in the proceeding as an agency                             (4) A statement of the relief sought.
representative or as a witness;                                        Specific Authority 120.54(5) FS. Law Implemented
           (d) Maintain in the record of the proceeding the            120.573 FS. History-New_____________.
original videotape and an affidavit of accuracy and                    PROPOSED EFFECTIVE DATE: April 1, 1997
completeness signed by the person recording the
proceeding; and                                                        28-106.403 Allocation of Costs and Fees
           (e) Provide a copy of the videotape to the                           The costs of mediation, including the mediator's
presiding officer and, upon request, to all parties, together          fees and other shared costs, shall be split equally or as
with an index specifying the location of the direct and                otherwise agreed by the parties. The cost allocation shall
cross-examination of every witness. Any party requesting               be specified in the agreement to mediate. Mediators shall
a copy of the videotape and index shall order the same at              be compensated at a rate agreed upon by the parties and
its own expense.                                                       the mediator.
           (4) If the agency elects to videotape the                   Specific Authority 120.54(5) FS. Law Implemented
proceeding and a non-agency party elects to provide a                  120.573 FS. History-New_____________.
certified court reporter, the non-agency party shall notify            PROPOSED EFFECTIVE DATE: April 1, 1997
all other parties no later than three business days prior to
the hearing. In such event the transcript provided by the              28-106.404 Contents of Agreement to Mediate
certified court reporter shall be the official transcript.                      The agreement to mediate shall set forth:
Specific Authority 120.54(5) FS. Law Implemented                                (1)    The names, addresses, and telephone
120.569, 120.57 FS, History-New__________.                             numbers of any persons who may attend the mediation;
PROPOSED EFFECTIVE DATE: April 1, 1997                                          (2) The name, address, and telephone number of
                                                                       the mediator agreed to by the parties;
                                                                                (3) How the costs and fees associated with
28-106.307 Post-Hearing Submittals                                     mediation will be allocated;
         The presiding officer may permit all parties to                        (4) The agreement of the parties regarding the
submit proposed findings of fact, conclusions of law,                  confidentiality of discussions and documents introduced
orders, and memoranda on the issues within a time                      during mediation to the extent authorized by law;
designated by the presiding officer. Unless authorized by                       (5) The date, time, and place of the first
the presiding officer, proposed orders shall be limited to             mediation session;
40 pages.                                                                       (6) The name of the party's representative who
Specific Authority 120.54(5) FS. Law Implemented                       shall have authority to settle or recommend settlement;
120.569, 120.57 FS, History-New__________.                             and
PROPOSED EFFECTIVE DATE: April 1, 1997                                          (7) The signatures of the parties.
                                                                       Specific Authority 120.54(5) FS. Law Implemented
                PART IV MEDIATION                                      120.573 FS. History-New_____________.
                                                                       PROPOSED EFFECTIVE DATE: April 1, 1997
28-106.401 Scope
        This rule applies to all mediation proceedings                 28-106.405 Standards of Conduct for Mediators
conducted pursuant to Section 120.573, F.S.                                     (1) Mediators shall adhere to the highest
        (1) Any time frames may be extended by written                 standards of integrity, impartiality, and professional
agreement of the parties.                                              competence.

                                                                I-15
July 15, 1997                                                          CFOP 30-1

          (2) On commencement of the mediation session,
a mediator shall inform all parties that the process is
consensual in nature, that the mediator is an impartial
facilitator, and that the mediator may not impose or force
any settlement on the parties.
          (3) A mediator shall:
          (a) Perform the mediation services in a timely
and expeditious fashion, avoiding delays wherever
possible;
          (b) Be impartial and advise all parties of any
circumstances bearing on possible bias, prejudice, or
impartiality; and
          (c) Withdraw from mediation if the mediator
believes the mediator can no longer be impartial.
          (4) A mediator shall not:
          (a) Coerce or unfairly influence a party into a
settlement agreement and shall not make substantive
decisions for any party to a mediation process;
          (b) Intentionally or knowingly misrepresent
material facts or circumstances in the course of
conducting a mediation; or
          (c) Give or accept a gift, request, favor, loan, or
any other item of value to or from a party, attorney, or
any other person involved in, or associated with any
person involved in, the mediation process.
Specific Authority 120.54(5) FS. Law Implemented
120.573 FS. History-New_____________.

PROPOSED EFFECTIVE DATE: April 1, 1997




                                                                I-16
July 15, 1997                                                                                                         CFOP 30-1

                 CHAPTER 28-107                                                  (b) The facts or conduct relied on to establish
                    LICENSING                                          the violation, and
28-107.001 General.                                                              (c) A statement that the licensee has the right to
28-107.002 Application for License.                                    request a hearing to be conducted in accordance with
28-107.003 Denial of License.                                          Sections 120.569 and 120.57, F.S., to be represented by
28-107.004 Suspension, Revocation, Annulment, or                       counsel or other qualified representative, to present
Withdrawal.                                                            evidence and argument, to call and cross-examine
28-107.005 Emergency Action.                                           witnesses, and to have subpoena and subpoena duces
                                                                       tecum issued on his or her behalf if a hearing is requested.
28-107.001 General                                                               (3) Requests for hearing filed in accordance
        All agency action regarding licensure shall be                 with this rule shall include:
governed by Sections 120.569, 120.57, and 120.60, F.S.                           (a) The name and address of the party making
Specific Authority 120.54(5) FS. Law Implemented                       the request, for purposes of service;
120.569, 120.57, 120.60 FS. History-New________.                                 (b) A statement that the party is requesting a
PROPOSED EFFECTIVE DATE: April 1, 1997                                 hearing involving disputed issues of material fact, or a
                                                                       hearing not involving disputed issues of material fact; and
28-107.002 Application for License                                               (c) A reference to the notice, order to show
          (1) Unless otherwise provided by law, the                    cause, administrative complaint, or other communication
agency shall initiate action on an application for license in          that the party has received from the agency.
accordance with the provisions of Section 120.60(1), F.S.                        (4) The agency complaint shall be considered to
          (2) The agency shall inform the applicant in                 be the petition, and the agency shall have the burden of
writing if it determines the application is incomplete, and            proving that grounds exist which warrant the action
shall specify why the application is incomplete. Upon the              proposed to be taken against the licensee.
return of a completed application, a supplemental                                (5) Following receipt of a recommended order,
application, or the requested information, the agency shall            the agency attorney or qualified representative who acts
reinitiate action under the provisions of Section                      on behalf of the agency in the conduct of the hearing will
120.60(1), F.S.                                                        not serve as legal advisor to the agency head during
Specific Authority 120.54(5) FS. Law Implemented                       subsequent proceedings which result in the issuance of
120.569, 120.57, 120.60 FS. History-New________.                       the final order.
PROPOSED EFFECTIVE DATE: April 1, 1997                                 Specific Authority 120.54(5) FS. Law Implemented
                                                                       120.569, 120.57, 120.60 FS. History-New________.
28-107.003 Denial of License                                           PROPOSED EFFECTIVE DATE: April 1, 1997
         (1) Unless the agency has already held a hearing
on the application for a license, the agency shall inform              28-107.005 Emergency Action
the person submitting an application of the right to a                           (1) If the agency finds that immediate serious
hearing on the denial of the application.                              danger to the public health, safety, or welfare requires
         (2) The agency shall set forth in writing the                 emergency action, the agency shall summarily suspend,
grounds or basis for denial of a license.                              limit, or restrict a license.
         (3) Any hearing on the denial of a license shall                        (2) The 14-day notice requirement of Section
be conducted in accordance with Sections 120.569,                      120.569(2)(b), F.S., does not apply and shall not be
120.57, or 120.574, F.S., and, unless otherwise provided               construed to prevent a hearing at the earliest time
by law, the applicant shall have the burden of establishing            practicable upon request of an aggrieved party.
entitlement to the license.                                                      (3) Unless otherwise provided by law, within 20
Specific Authority 120.54(5) FS. Law Implemented                       days after emergency action taken pursuant to paragraph
120.569, 120.57, 120.574, 120.60 FS.               History-            (1) of this rule, the agency shall initiate a formal
New________.                                                           suspension or revocation proceeding in compliance with
PROPOSED EFFECTIVE DATE: April 1, 1997                                 Sections 120.569, 120.57, and 120.60, F.S.
                                                                       Specific Authority 120.54(5) FS. Law Implemented
28-107.004 Suspension, Revocation, Annulment, or                       120.569, 120.57, 120.60(6) FS. History-New________.
Withdrawal                                                             PROPOSED EFFECTIVE DATE: April 1, 1997
          (1) Prior to the entry of a final order to suspend,
revoke, annul, or withdraw a license, the agency shall
serve upon the licensee an administrative complaint in the
manner set out in Section 120.60(5), F.S.
          (2) The agency shall issue an administrative
complaint which shall contain:
          (a) The statutory provision(s) or section(s) of
the Florida Administrative Code alleged to have been
violated,

                                                                I-17
July 15, 1997                                                         CFOP 30-1


                  CHAPTER 28-108
      EXCEPTION TO UNIFORM RULES OF
                   PROCEDURE
28-108.001 Petition for Exception to Uniform Rules of
Procedure.
28-108.002    Final Disposition on Petition for
Exception.

28-108.001 Petition for Exception to Uniform Rules of
Procedure
          The agency head shall file a petition with the
Administration Commission for an exception to the
Uniform Rules of Procedure. The petition shall include
reasons for the exception as outlined in Section
120.54(5)(a), F.S. The agency shall publish notice of the
petition in the next available edition of the Florida
Administrative Weekly, after consultation with the agency
clerk of the Administration Commission. The notice shall
include the name of the agency seeking an exception, the
uniform rule of procedure from which the exception is
sought, a summary of the stated grounds for the
exception, and the date the matter is expected to be heard
by the Administration Commission. The Administration
Commission shall provide interested persons with the
opportunity to file written statements or make oral
presentations in support of or in opposition to the
exception.
Specific Authority 120.54(5) FS. Law Implemented
120.54 FS. History-New________.
PROPOSED EFFECTIVE DATE: April 1, 1997

28-108.002 Final Disposition on Petition for Exception
          The Administration Commission shall publish, at
the agency’s expense, notice in the next available edition
of the Florida Administrative Weekly of the disposition of
the petition, and shall transmit a copy of the notice to the
Joint Administrative Procedures Committee, the
Department of State, and any person who requests a copy.
Specific Authority 120.54(5) FS. Law Implemented
120.54 FS. History-New________.

PROPOSED EFFECTIVE DATE: April 1, 1997




                                                               I-18
July 15, 1997                                                                                                      CFOP 30-1

                                                                    provision for the attendance of any member of the public
           CHAPTER 28-109                                           who desires to attend.
     CONDUCTING PROCEEDINGS BY                                                (2) No proceeding otherwise subject to Section
  COMMUNICATIONS MEDIA TECHNOLOGY                                   286.011, F.S., shall be conducted exclusively by means of
                                                                    CMT if the available technology is insufficient to permit
28-109.001   General.                                               all interested persons to attend. If during the course of a
28-109.002   Definitions as Used in this Rule Chapter.              CMT proceeding technical problems develop with the
28-109.003   Application and Construction.                          communications network that prevent interested persons
28-109.004   Government in the Sunshine.                            from attending, the agency may terminate the proceeding
28-109.005   Notice.                                                until the problems have been corrected.
28-109.006   Evidence, Testimony and Argument.                      Specific Authority 120.54(5) FS. Law Implemented
                                                                    120.54(5)(b)2. FS. History-New__________.
28-109.001 General                                                  PROPOSED EFFECTIVE DATE: April 1, 1997
         This chapter implements the provisions of
Section 120.54(5)(b)2., F.S., by providing general                  28-109.005 Notice
procedures to be followed when the agency desires to                         When the agency chooses to conduct a CMT
conduct a proceeding by means of communications media               proceeding, it shall provide notice in the same manner as
technology or to provide public access to a proceeding by           required for a regular proceeding, except in the case of an
the use of communications media technology.                         emergency meeting which shall be noticed as provided in
Specific Authority 120.54(5) FS. Law Implemented                    Rule 28-102.003, and shall plainly state that such
120.54(5)(b)2. FS. History-New__________.                           proceeding is to be conducted utilizing CMT and identify
PROPOSED EFFECTIVE DATE: April 1, 1997                              the specific type of CMT to be used. The notice shall
                                                                    describe how interested persons may attend and shall
28-109.002 Definitions as Used in this Rule Chapter                 include the address or addresses of all access points,
         (1) "Access point" means a designated place                specifically designating those which are in locations
where a person interested in attending a communications             normally open to the public. If, for example, a CMT
media technology proceeding may go for the purpose of               proceeding is to be conducted by utilizing a telephone
attending the proceeding.                                           conference hookup, the notice shall so state and shall
         (2) "Attend" means having access to the                    provide the address of each access point where an
communications media technology network being used to               interested person may go for the purpose of attending the
conduct a proceeding, or being used to take evidence,               proceeding. The notice shall also contain an address and
testimony, or argument relative to issues being considered          telephone number where an interested person may write
at a proceeding.                                                    or call for additional information and shall provide an
         (3)     "Communications media technology"                  address and designated person to whom a person may
(CMT) means the electronic transmission of printed                  submit written or other physical evidence which he or she
matter, audio, full-motion video, freeze frame video,               intends to offer into evidence.
compressed video, and digital video by any method                   Specific Authority 120.54(10) FS. Law Implemented
available.                                                          120.53(6). FS. History-New__________.
Specific Authority 120.54(5) FS. Law Implemented                    PROPOSED EFFECTIVE DATE: April 1, 1997
120.54(5)(b)2. FS. History-New__________.
PROPOSED EFFECTIVE DATE: April 1, 1997                              28-109.006 Evidence, Testimony, and Argument
                                                                              (1) Any evidence, testimony, and argument
28-109.003 Application and Construction                             which is introduced utilizing CMT shall be afforded equal
         (1) The agency may conduct a proceeding by                 consideration as if it were introduced by its proponent in
using CMT and may provide CMT access to a proceeding                person, but shall be subject to the same objections as if it
for purposes of taking evidence, testimony, or argument.            were made in person.
         (2) A proceeding is not a CMT proceeding                             (2) In situations where sworn testimony is
merely because it is broadcast over a communications                required by the agency, persons offering such testimony
network.                                                            shall be responsible for making appropriate arrangements
Specific Authority 120.54(5) FS. Law Implemented                    for offering sworn testimony.
120.54(5)(b)2. FS. History-New__________.                           Specific Authority 120.54(5) FS. Law Implemented
PROPOSED EFFECTIVE DATE: April 1, 1997                              120.54(5)(b)2. FS. History-New__________.

28-109.004 Government in the Sunshine                               PROPOSED EFFECTIVE DATE: April 1, 1997
        (1) Nothing in this rule chapter shall be
construed to permit the agency to conduct any proceeding
otherwise subject to the provisions of Section 286.011,
F.S., exclusively by means of CMT without making


                                                             I-19
July 15, 1997                                                                                                         CFOP 30-1

                                                                       procurement by number and title or any other language
                                                                       that will enable the agency to identify it; and shall state
                    CHAPTER 28-110                                     that the person intends to protest the decision. If a bond
                     BID PROTESTS                                      is required, it should not be filed with the notice unless
                                                                       otherwise provided by law.
28-110.001   Purpose and Scope.                                                  (2) The notice must be actually received by the
28-110.002   Definitions.                                              agency before the 72-hour period expires. The notice
28-110.003   Notice of Protest.                                        should be filed at the place designated by the procurement
28-110.004   Formal Written Protest.                                   solicitation or, if no such place is designated, the notice
28-110.005   Bond.                                                     should be filed either with the office that issued the
                                                                       solicitation or with the agency clerk.
28-110.001 Purpose and Scope                                                     (3) A notice of protest should not be filed before
         (1) This chapter supplements the statutes on                  the 72-hour period begins. The 72-hour period begins
protests that arise from the contract procurement process              upon receipt of a copy of the ITB or RFP; when notice of
under Chapters 24, 255, 287, 334 through 349, Sections                 a single source approval or disapproval or negotiation
282.303 through 282.313, F.S., and other statutes                      approval or disapproval is posted, or otherwise received if
applicable to agencies as defined in Section 120.52(1),                not posted; when a bid or proposal tabulation is posted; or
F.S.                                                                   when notice is otherwise received if not posted.
         (2) Policies and procedures are established                             (4) The 72-hour period is not extended by
primarily by Section 120.57(3), F.S. Interested persons                service of the notice of protest by mail.
must follow the requirements of those statutes as well as              Specific Authority 120.54(5)(a)(b)            FS.       Law
these rules.     Other statutes may apply to specific                  Implemented 120.57(3) FS. History-New__________.
circumstances.                                                         PROPOSED EFFECTIVE DATE: April 1, 1997
Specific Authority 120.54(5)(a)(b)           FS.     Law
Implemented 120.57(3) FS. History-New__________.                       28-110.004 Formal Written Protest
PROPOSED EFFECTIVE DATE: April 1, 1997                                           (1) The "formal written protest" required by
                                                                       Section 120.57(3)(b), F.S., is a petition that states with
28-110.002 Definitions                                                 particularity the facts and law upon which the protest is
          For purposes of this subchapter, the following               based, contains the information specified in Rule 28-
terms mean:                                                            106.201(2), and is substantially in the form set out in
          (1) "Contract procurement process" has the                   subsection (2) below. If the formal written protest is filed
same meaning as "contract bidding process" as used in                  in proper form within the 72-hour period for filing a
Section 120.57(3), F.S.           This phrase includes                 notice of protest, the formal written protest will also
procurements by invitation to bid (ITB), request for                   constitute the notice of protest, and all time limits
proposal (RFP), single source approval and negotiation                 applicable to a notice of protest are waived and time
approval.                                                              limits relative to formal written protests apply.
          (2) "Decision or intended decision" means:                             (2) Form of Petition.
          (a) The contents of an ITB or an RFP or other                STATE OF FLORIDA
specifications, including addenda;                                     DEPARTMENT OF ___________________
          (b)       A determination that a specified                   XYZ CORPORATION,
procurement can be made only from a single source;                     a corporation organized
          (c) Approval of procurement by negotiation;                  under the laws of Florida,
          (d) Rejection of a bid or proposal, or all bids or                               Petitioner,
proposals, or a request to approve a single source or                  vs.
negotiation; or                                                                  Case No.: ___________
          (e) Intention to award a contract as indicated by            STATE OF FLORIDA
a posted bid or proposal tabulation or other written notice.           DEPARTMENT OF _________________
          (3) For purposes of this chapter, "electronic                                    Respondent.
transmissions" permitted by Rule 28-106.104 are limited                __________________________________/
to facsimile transmissions which appear legibly on paper
at the place of filing.                                                PETITION
Specific Authority 120.54(5)(a)(b)            FS.      Law                       XYZ Corporation, a corporation organized under
Implemented 120.57(3) FS. History-New__________.                       the laws of Florida, brings this petition against State of
PROPOSED EFFECTIVE DATE: April 1, 1997                                 Florida Department of __________________               and
                                                                       alleges:
28-110.003 Notice of Protest                                                     1. This is a bid protest under Section 120.57(3),
         (1) A notice of protest shall be addressed to the             Florida Statutes.
office that issued the ITB or RFP or made any other                              2. Respondent issued an invitation to bid (ITB)
decision that is intended to be protested; shall identify the          entitled Bid No.     .

                                                                I-20
July 15, 1997                                                                                                         CFOP 30-1

          3.     Petitioner submitted the low bid but                 place of business at __________________, as
Respondent rejected its bid for the stated reason that                PRINCIPAL; and__________________________, a
_____________.                                                        surety company, organized under the laws of the State of
          4. The stated reason for rejection is erroneous             __ __________________, and duly authorized to do
because            .                                                  business in the State of Florida, whose principal place of
          5. (Additional relevant facts, if any)                      business is, as SURETY, are held and firmly bound unto
          6. The facts that are in dispute between                    the STATE OF FLORIDA, (Agency) , as OBLIGEE,
Petitioner and Respondent are:                                        in the amount of $____________ for the payment of
          _______________________________________                     which sum we, as Principal and Surety, bind ourselves,
_________________________________                                     our heirs, personal representatives, successors and
          7. A copy of the bid tabulation is attached.                assigns, jointly and severally.
          8. (Applicable points of law.)                                        THIS BOND is issued under the provisions of
          Petitioner requests a hearing involving disputed            Section 287.042(2)(c), Florida Statutes. The above-
          issues of material fact and an order awarding the           named Principal has initiated an administrative protest
          contract to Petitioner (or other relief).                   regarding the Obligee's decision or intended decision
(Note. If the relevant facts are not in dispute the petition          pertaining to (mark one) [ ] Bid Number
should so allege and request a hearing not involving                  _______________ [ ] an agency's request for approval of
disputed issues of material fact. The above allegations               an exceptional purchase of                          submitted
are illustrative. They should be altered to suit varying              by ______________________________________. Said
circumstances).                                                       protest is conditioned upon the posting of a bond at the
          (3) The time allowed for filing a petition or a             time of filing the formal written protest.
bond is not extended by mailing either document.                                NOW, THEREFORE, the condition of this Bond
Specific Authority 120.54(5)(a)(b)               FS.   Law            is that if the Principal, after the administrative hearing
Implemented 120.57(3) FS. History-New__________.                      process and/or any appellate court proceedings regarding
PROPOSED EFFECTIVE DATE: April 1, 1997                                the protest, shall satisfy all costs and charges allowed by
                                                                      final order and/or judgment, and interest thereon, in the
28-110.005 Bond                                                       event the Obligee prevails, then the obligation shall be
         (1) Bid protest bonds are required by Section                null and void; otherwise it shall remain in full force and
287.042(2)(c), F.S., for procurements under Chapter 287               effect.
(commodities, contractual services, professional services                       The Obligee may bring an action in a court of
and insurance) and by Section 255.25(3)(c), F.S., for                 competent jurisdiction on this bond for the amount of
procurements of leases of space in privately owned                    such liability, including all costs and attorneys' fees.
buildings. Bonds are not required for protests involving              PRINCIPAL: _________________________________
building construction projects undertaken pursuant to                 BY: ____________________________________
Chapter 255, except that Section 255.0516, F.S.,                      Title:_______________________________
authorizes school boards, community college boards of
trustees and the Board of Regents to require bonds under              _______ (CORPORATE SEAL)
some circumstances. Bonds are required also by Section                ATTEST: ____________________________________
337.11(5)(a), F.S., for certain procurements by the                            ___________________________________
Department of Transportation.                                         SURETY: _____________________________________
         (2) Bonds required by Section 337.11(5)(a),                  BY: _________________________________________
F.S., must be filed with the notice of protest. Other bonds           Title:    ______________________________________
are not to be filed with the notice of protest, but must be           (CORPORATE SEAL)
filed with the formal written protest or within the 10-day            Florida Resident Agent: _____________________
period allowed for filing the formal written protest. The
bond must accompany a protest filed pursuant to Section               (Note: Power of Attorney showing authority of Surety's
24.109(2)(a), F.S. A bond can be in substantially the                 agent or Attorney in Fact must be attached).
following form:
STATE OF FLORIDA                                                      Bonds must be countersigned by a Florida resident agent.
ADMINISTRATION COMMISSION                                             Section 287.042(2)(c), F.S., authorizes a cashier’s check
PROCUREMENT PROTEST BOND                                              or money order in lieu of a bond, for procurements
    Bond Number: ______________________________                       governed by Chapter 287, F.S.
    Contract Number: __________________________                                (3) When a bond is required, a notice of
    KNOW ALL PERSONS BY THESE PRESENTS:                               decision or intended decision shall contain this statement:
         That                                           we,           "Failure to file a protest within the time prescribed in
________________________________ a (mark one) [ ]                     Section 120.57(3), Florida Statutes, or failure to post the
corporation, [ ] partnership, [ ] proprietorship, organized           bond or other security required by law within the time
and existing under the laws of the State                              allowed for filing a bond shall constitute a waiver of
of_____________________, and having its principal                     proceedings under Chapter 120, Florida Statutes." If the

                                                               I-21
July 15, 1997                                                                                                  CFOP 30-1

notice advises of the bond requirement but a bond or                 Sections 255.25(3)(c), 287.042(2)(c) or 337.11(5)(b),
statutorily authorized alternate is not posted when                  F.S. The entire bond may be forfeited if circumstances
required, the agency shall summarily dismiss the petition.           warrant under Section 337.11(5)(a), F.S.
    (4) If, at the conclusion of the proceeding and any              Specific Authority 120.54(5)(a)(b)          FS.    Law
appellate proceedings, the petitioner prevails, the                  Implemented 120.57(3), 624.425(1)         FS. History-
agency shall return the bond, cashier’s check or money               New__________.
order to the petitioner. If the agency prevails but the
petitioner is not ordered to pay costs, the agency shall             PROPOSED EFFECTIVE DATE: April 1, 1997
return the bond or alternate security to the petitioner. If
the petitioner is ordered to pay costs, the agency shall
return the bond or alternate security as provided by




                                                              I-22
July 15, 1997                                                           CFOP 30-1



   DATE:

   TO:               _____ Office of the General Counsel
                _____ Assistant Secretary for Administration
                _____ Assistant Secretary for (any other office
                          affected by the rule)
                _____ Statewide Human Rights Advocacy Committee
                _____ District ____ Administrator

   FROM:        (Originator, title, office symbol)

   SUBJECT:     (Rule number and title)
   _________________________________________________________________

   Please review the enclosed proposed rule and return your response
   to (name, office symbol and phone number of person who prepared
   the rule) by the due date requested below.

   DUE DATE: ______________

   REVIEWERS COMMENTS:




   Approved_____________                      _________________________
                                                      Signature

   Not Approved_________                      _________________________
                                                        Date




                                                            Appendix J to CFOP 30-1
July 15, 1997                           CFOP 30-1




                (This page is blank.)




                         J-2
July 15, 1997                                                             CFOP 30-1


                CERTIFICATION OF DEPARTMENT OF CHILDREN AND FAMILIES
                        ADMINISTRATIVE RULES FILED WITH THE
                                 DEPARTMENT OF STATE


       I do hereby certify:


                [ ]   (1)   That all statutory rulemaking requirements of
       Chapter 120, F.S., have been complied with; and
                [ ]   (2)   There is no administrative determination
       under subsection 120.56(2), F.S., pending on any rule
       covered by this certification, and
                [ ]   (3)   All rules covered by this certification are
       filed within the prescribed time limitations of paragraph
       120.54(3)(e), F.S.       They are filed not less than 28 days
       after the notice required by paragraph 120.54(3)(a), F.S.,
       and;
                [ ]   (a)   Are filed not more than 90 days after the
       notice; or
                [ ]   (b)   Are filed not more than 90 days after the
       notice not including days an administrative determination
       was pending; or
                [ ]   (c)   Are filed more than 90 days after the notice,
       but not less than 21 days from the date of publication of
       the notice of change; or
                [ ]   (d)   Are filed more than 90 days after the notice,
       but within 21 days after the adjournment of the final public
       hearing on the rule; or
                [ ]   (e)   Are filed more than 90 days after the notice,
       but within 21 days after the date of receipt of all material
       authorized to be submitted at the hearing; or
                [ ]   (f)   Are filed more than 90 days after the notice,
       but within 21 days after the date the transcript was
       received by this agency.




                                                              Appendix K to CFOP 30-1
July 15, 1997                                                                  CFOP 30-1


                [ ]   (g)    Are filed not more than 90 days after the
       notice, not including days the adoption of the rule was
       postponed following notification from the Joint
       Administrative Procedures Committee that an objection to the
       rule was being considered.
                Attached are the original and two copies of each rule
       covered by this certification.             The rules are hereby adopted
       by the undersigned agency by and upon their filing with the
       Department of State.
       Rule No(s).
       10M-41.008
       10M-41.009
       Under the provision of paragraph 120.54(3)(e)6., F.S., these
       rules take effect 20 days from the date filed with the
       Department of State or a later date as set out below:               (For
       an Emergency Rule slightly different language is required.
       See the rules of the Secretary of State for the current form
       for uss in Emergency Rule Certification.}
                Effective:    ___________       __________   _______________
                               (Year)           (Month)      (Day)
                                        ____________________________
                                        Signature of Person Authorized to Certify Rules

                                        ____________________________
                                        Title

                                        ____________________________
                                        Number of Pages Certified




                                            K-2
July 15, 1997                                                              CFOP 30-1


                       DEPARTMENT OF CHILDREN AND FAMILIES
                      FAMILY SAFETY AND PRESERVATION PROGRAM
                   CHAPTER 65X-XX, FLORIDA ADMINISTRATIVE CODE
                                EMERGENCY SHELTER
                            SUMMARY OF PUBLIC HEARING


                If a hearing was held, the hearing officer provides a
       summary that contains the date, time and place of the
       hearing; the names of the parties attending; a summary of
       the substantive comments; and the changes proposed.          The
       summary is dated and signed by the hearing officer.
                                        OR
                If no hearing was held, prepare a heading as shown
       above followed by the statement:
                No timely request for a hearing was received by the
                agency; therefore, no hearing was held.
       This statement must likewise be signed and dated by the
       presiding officer.




                                                               Appendix L to CFOP 30-1
July 15, 1997                                                       CFOP 30-1


       Format for Notice of Change required by Rule 1S-1.003(6)



       DEPARTMENT OF CHILDREN AND FAMILIES

       Program Office Name

       RULE NO:              RULE TITLE:

       (insert number)       (insert title)


                               NOTICE OF CHANGE

       Notice is hereby given that the following changes have been

       made to the proposed rule in accordance with subparagraph

       120.54(3)(d)1., F.S., published in Volume_____, No._____,

       (date), issue of the Florida Administrative Weekly.


                     (TEXT OF PROPOSED RULE CHANGES)




                                                       Appendix M to CFOP 30-1
July 15, 1997                                                         CFOP 30-1



                                   MEMORANDUM


       DATE:      (date signed by the assistant secretary)

       TO:        (name), Secretary

       FROM:      (name), Assistant Secretary for (name of program)

       SUBJECT: Proposed Rule (include rule number and title).
       ____________________________________________________________

       PURPOSE: This paragraph must provide the secretary with
       specific information on the purpose of the rule and
       therefore should explain what the rule does. It is not
       sufficient to simply state, for example: "This rule amends
       section 10D-29.103, Florida Administrative Code." The
       explanation must be useful in understanding the rule and its
       provisions.

       BACKGROUND: Here you must explain why the rule is
       necessary. This paragraph is designed to provide the
       secretary with background information that justifies
       promulgating the rule as well as the degree of regulation
       which is included within the rule as you have drafted it.

       ADMINISTRATIVE HEARING STATUS: By signature on this memo,
       I, as assistant secretary for (program name), hereby certify
       that there is no administrative determination presently
       pending on this rule.


       SECRETARY’S APPROVAL:

       APPROVED   _____

       NOT APPROVED   _____


       _________________________       _____________________________
       DATE                                 SECRETARY




                                                          Appendix N to CFOP 30-1
July 15, 1997                                                                                             CFOP 30-1


       TO             ACTION        Signature               TO        ACTION              Signature (Surname)
                                    (Surname)
 1     ASG        Review                               6
 2     DSA        Review                               7
 3     OSLS       Approval                             8
 4     OS         Approval                             9
 5                                                     10
Name of                                       Symbol         Phone    Typist’s Initials
Action Official                               ASGGS          7-1950     IMB
Subject                                                                                      Date:
Rule Repeal for Rule Reduction Exercise                                                      1/1/97

 1.   Reason for the rule:                (Include the statute that requires and authorizes the
rule.)

 2.         Name and phone number of person who prepared the rule.

 3.         Key provisions of the rule:

 4.         Is the rule more restrictive than federal requirements?

            Yes____     No ____ If yes, explain how and why.

 5.         Was the regulated party involved in rule development?

 6.         What other department programs are affected by the rule?
            List offices/programs with which rule was coordinated.

 7.         Have all department reviewers concurred with the rule?
            If not, explain why and how the issue was resolved.

 8.         Summarize the comments received from JAPC and explain how they have been
            addressed.

 9.         Summarize public comments received, if any, and explain how they have been
            addressed.

10.         What reaction is expected when the rule is filed?

11.         This rule was published in the FAW on (provide date).

12.         The filing deadline for this rule is (provide date).

 (Attach additional pages if needed.)




                                                                                             Appendix O to CFOP 30-1

				
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