28-106.103: Computation of Time
28-106.104: Filing
28-106.106: Who May Appear; Criteria for Qualified Representatives
28-106.111: Point of Entry into Proceedings and Mediation
28-106.201: Initiation of Proceedings
28-106.2015: Agency Enforcement and Disciplinary Actions
28-106.202: Amendment of Petitions
28-106.204: Motions
28-106.205: Intervention
28-106.213: Evidence
28-106.217: Exceptions and Responses
28-106.301: Initiation of Proceedings
28-106.305: Conduct of Proceedings
28-106.401: Scope
28-106.402: Contents of Request for Mediation
28-106.501: Emergency Action
PURPOSE AND EFFECT: The purpose of the amendment to Rule 28-106.103, F.A.C., is to clarify the language pertaining to transmission of documents. Rule 28-106.104, F.A.C., is being amended to provide for electronic filing or facsimile transmission and to clarify rule language. Rule 28-106.106 is being amended to further define who may appear as counsel and explicitly exclude a disbarred lawyer from appearing as qualified representative. The purpose of amending Rule 28-106.111, F.A.C., is to incorporate statutory changes. The amendment to subsection (4) provides for equitable tolling as a defense to an untimely filed request for a hearing. The rule is further amended to clarify language, and in subsection (5)(b) language lacking statutory authority is deleted. The Commission is amending subsection 28-106.201(1), F.A.C., to reflect that enforcement and disciplinary actions are to proceed under new Rule 28-106.2015, F.A.C. Paragraph (2)(f) is amended to require an explanation in the petition of how the alleged facts relate to specific rules or statutes. Subsections (4) and (5) are being deleted because they reiterate statutory language. Rule 28-106.2015 is a rule promulgated pursuant to new statutory language. The rule establishes the process for agency enforcement and disciplinary actions; it incorporates former Rule 28-107.104, F.A.C. Rule 28-106.202, F.A.C., is being amended to clarify language and allow for amendment of requests for hearings. Rule 28-106.204, F.A.C., is being amended to clarify language and to allow for motions to relinquish jurisdiction when no genuine issue of material fact exists. Rule 28-106.205 is being amended to allow a party to oppose intervention and to clarify language. Paragraph (5)(b) of Rule 28-106.213, F.A.C., is being amended to clarify procedure for notary when testimony is taken by telephone. Rule 28-106.217, F.A.C., is being amended to require parties to identify disputed portions of the recommended order and assert a legal basis for any exceptions. A proposed amendment to subsection (2) requires service to all parties on the day exceptions are filed with the agency. Rule 28-106.301, F.A.C., is being amended to reflect that enforcement and disciplinary actions will proceed under new Rule 28-106.2015, F.A.C. Subsections (3), (4), and (5) are deleted because they reiterate statutory language. Rule 28-106.305, F.A.C., is being amended to delete subsection (2) because Chapter 120, Florida Statutes, does not provide for this procedure. The proposed amendment to Rule 28-106.401, F.A.C., constitutes a substantial rewrite of the mediation process. Subsection (2) is being deleted for lack of statutory authority. The purpose of amending Rule 28-106.402, F.A.C., is to simplify the contents of a request for mediation. Rule 28-106.501, F.A.C., is a proposed new rule. The language is taken from former Rule 28-107.005, F.A.C. The new rule is created and Rule 28-107.005, F.A.C., repealed, because an emergency action is another type of proceeding in which substantial interests are determined.
SUMMARY: The purpose of the amendment to Rule 28-106.103, F.A.C., is to clarify the language pertaining to transmission of documents. Rule 28-106.104, F.A.C., is being amended to provide for electronic filing or facsimile transmission and to clarify rule language. Rule 28-106.106, F.A.C., is being amended to further define who may appear as counsel and explicitly exclude a disbarred lawyer from appearing as qualified representative. The purpose of amending Rule 28-106.111, F.A.C., is to incorporate statutory changes. The amendment to subsection (4) provides for equitable tolling as a defense to an untimely filed request for a hearing. The rule is further amended to clarify language, and in paragraph (5)(b) language lacking statutory authority is deleted. The Commission is amending subsection 28-106.201(1), F.A.C., to reflect that enforcement and disciplinary actions are to proceed under new Rule 28-106.2015, F.A.C. Paragraph (2)(f) is amended to require an explanation in the petition of how the alleged facts relate to specific rules or statutes. Subsections (4) and (5) are being deleted because they reiterate statutory language. Rule 28-106.2015, F.A.C., is a rule promulgated pursuant to new statutory language. The rule establishes the process for agency enforcement and disciplinary actions; it incorporates former Rule 28-107.104, F.A.C. Rule 28-106.202, F.A.C., is being amended to clarify language and allow for amendment of requests for hearings. Rule 28-106.204, F.A.C., is being amended to clarify language and to allow for motions to relinquish jurisdiction when no genuine issue of material fact exists. Rule 28-106.205, F.A.C., is being amended to allow a party to oppose intervention and to clarify language. Paragraph (5)(b) of Rule 28-106.213, F.A.C., is being amended to clarify procedure for notary when testimony is taken by telephone. Rule 28-106.217, F.A.C., is being amended to require parties to identify disputed portions of the recommended order and assert a legal basis for any exceptions. A proposed amendment to subsection (2) requires service to all parties on the day exceptions are filed with the agency. Rule 28-106.301, F.A.C., is being amended to reflect that enforcement and disciplinary actions will proceed under new Rule 28-106.2015, F.A.C. Subsections (3), (4), and (5) are deleted because they reiterate statutory language. Rule 28-106.305, F.A.C., is being amended to delete subsection (2) because Chapter 120, Florida Statutes, does not provide for this procedure. The proposed amendment to Rule 28-106.401, F.A.C., constitutes a substantial rewrite of the mediation process. Subsection (2) is being deleted for lack of statutory authority. The purpose of amending Rule 28-106.402, F.A.C., is to simplify the contents of a request for mediation. Rule 28-106.501, F.A.C., is a proposed new rule. The language is taken from former Rule 28-107.005, F.A.C. The new rule is created and Rule 28-107.005, F.A.C., repealed, because an emergency action is another type of proceeding in which substantial interests are determined.
SUMMARY OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 120.54 (5) FS.
LAW IMPLEMENTED: 120.569, 120.57, 120.573 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
TIME AND DATE: Friday, December 15, 2006, 9:00 a.m.
PLACE: Room 2103, The Capitol, Tallahassee, Florida 32399-0001
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 2 days before the workshop/meeting by contacting: Barbara Leighty, (850)487-1884 If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Barbara Leighty, Senior Policy Analyst, telephone (850)487-1884, or Gladys Perez, General Counsel, telephone (850)488-3494, Administration Commission, The Capitol, Room 1801, Tallahassee, Florida 32399-0001
THE FULL TEXT OF THE PROPOSED RULE IS:
DECISIONS DETERMINING SUBSTANTIAL INTERESTS
Part I General Provisions
28-106.103 Computation of Time.
In computing any period of time allowed by this chapter, by order of a presiding officer, or by any applicable statute, the day of the act from which the period of time begins to run shall not be included. The last day of the period shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday, or legal holiday. When the period of time allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in these rules, legal holiday means those days designated in Section 110.117, F.S. Except as provided in Rule 28-106.217, F.A.C., five days shall be added to the time limits when service has been made by regular telephone transmission, or other electronic mail transmission or when the period of time begins pursuant to a type of notice described in Rule 28-106.111, F.A.C.
Specific Authority 120.54(5) FS. Law Implemented 120.569, 120.57 FS. History–New 4-1-97, Amended __________.
28-106.104 Filing.
(1) through (4) No change.
(5) All papers filed shall be titled styled to indicate clearly the subject matter of the paper and the party requesting relief.
(6) No change.
(7) If an agency allows documents to be filed by electronic mail or facsimile transmission, the following paragraphs apply:
(a)(7) A party who files a document by electronic mail or facsimile transmission represents that the original physically signed document will be retained by that party for the duration of that proceeding and of any subsequent appeal or subsequent proceeding in that cause. The party shall produce it upon the request of any other party or the agency clerk.
(b)(8) Any party who elects to file any document by electronic mail or facsimile 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.
(c)(9) The filing date for a an electronically transmitted document transmitted by electronic mail or facsimile shall be the date the agency clerk receives the complete document.
Specific Authority 120.54(5) FS. Law Implemented 120.569, 120.57 FS. History–New 4-1-97, Amended__________.
28-106.106 Who May Appear; Criteria for Qualified Representatives.
(1) Any party who appears in any agency proceeding has the right, at his or her own expense, to be represented by counsel or by a qualified representative. Counsel means a member of The Florida Bar or a law student certified pursuant to Chapter 11 of the Rules Regulating The Florida Bar. An attorney disbarred in any state shall not be authorized to serve as a qualified representative.
(2)(a) A party seeking representation by a qualified representative shall file a written request with the presiding officer as soon as practicable. The request shall identify the name, address and telephone number of the representative and shall state that the party is aware of the services which the representative can provide, and is aware that the party can be represented by counsel an attorney at the party’s own expense and has chosen otherwise.
(b) The presiding officer shall consider whether assure that the representative is qualified to appear in the administrative proceeding and capable of representing the rights and interests of the party. The presiding officer may consider a representative’s sworn affidavit setting forth the representative’s qualifications.
(c) No change.
(3) through (5) No change.
Specific Authority 120.54(5) FS. Law Implemented 120.569, 120.57 FS. History–New 4-1-97, Amended __________.
28-106.111 Point of Entry into Proceedings and Mediation.
(1) The notice of agency decision shall contain the information required by Section 120.569(1), F.S. The notice shall also advise whether mediation under Section 120.573, F.S., is available as an alternative remedy, and if available, that pursuit of mediation will not adversely affect the right to administrative proceedings in the event mediation does not result in a settlement.
(2) No change.
(3) An agency may, for good cause shown, grant a request for an extension of time for filing an initial pleading. Requests for extension of time must be filed with the agency prior to the applicable deadline. Such requests for extensions of time shall contain a certificate that the moving party has consulted with all other parties, if any, concerning the extension and that the agency and any other parties agree to or oppose said the extension. A timely request for extension of time shall toll the running of the time period for filing a petition until the request is acted upon.
(4) Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters. This provision does not eliminate the availability of equitable tolling as a defense.
(5) The agency may publish, and any person who has timely requested mediation may, at the person’s own expense, cause the agency to publish, a notice of the existence of the mediation proceeding in the Florida Administrative Weekly or in a newspaper of general circulation in the affected area. The mediation notice can be included in the notice of intended agency action.
(a)1. through 4. No change.
(b) The notice shall also advise that in the absence of a timely request to participate in the mediation, any person whose substantial interests are or may be affected by the result of the mediation waives any right to participate in the mediation, and that waiver of participation in the mediation is also a waiver of that person’s ability to challenge the mediated final agency action pursuant to Chapter 120, F.S.
Specific Authority 120.54(5) FS. Law Implemented 120.569, 120.57, 120.573 FS. History–New 4-1-97, Amended 3-18-98, __________.
28-106.201 Initiation of Proceedings.
(1) Unless otherwise provided by statute, and except for agency enforcement and disciplinary actions that shall be initiated under Rule 28-106.2015, F.A.C. initiation of proceedings shall be made by written petition to the agency responsible for rendering final agency action. The term “petition” includes any document that requests an evidentiary proceeding and asserts the existence of a disputed issue of material fact. Each petition shall be legible and on 8 1/2 by 11 inch white paper. Unless printed, the impression shall be on one side of the paper only and lines shall be double-spaced.
(2) All petitions filed under these rules shall contain:
(a) through (e) No change.
(f) A statement of the specific rules or statutes the petitioner contends require reversal or modification of the agency’s proposed action, including an explanation of how the alleged facts relate to the specific rules or statutes; and
(g) No change.
(3) No change.
(4) A petition shall be dismissed if it is not in substantial compliance with subsection (2) of this rule or it has been untimely filed. Dismissal of a petition shall, at least once, be without prejudice to petitioner’s filing a timely amended petition curing the defect, unless it conclusively appears from the face of the petition that the defect cannot be cured.
(5) The agency shall promptly give written notice to all parties of the action taken on the petition, shall state with particularity its reasons if the petition is not granted, and shall state the deadline for filing an amended petition if applicable.
Specific Authority 120.54(3), (5) FS. Law Implemented 120.54(5), 120.569, 120.57 FS. History–New 4-1-97, Amended 9-17-98, __________.
28-106.2015 Agency Enforcement and Disciplinary Actions.
(1) Prior to entry of a final order to suspend, revoke, or withdraw a license, to impose administrative fines, or to take other enforcement or disciplinary action against a licensee or person or entity subject to the agency’s jurisdiction, the agency shall serve upon the licensee an administrative complaint. For purposes of this rule, an agency pleading or communication that seeks to exercise an agency’s enforcement authority and to take any kind of disciplinary action against a licensee or other person shall be deemed an administrative complaint.
(2) An agency issuing an administrative complaint shall be the petitioner, and the licensee against whom the agency seeks to take disciplinary action shall be the respondent.
(3) The agency’s administrative complaint shall be considered the petition, and service of the administrative complaint on the respondent shall be deemed the initiation of proceedings.
(4) The agency’s administrative complaint shall contain:
(a) The name of the agency, the respondent or respondents against whom disciplinary action is sought and a file number.
(b) The statutory section(s), rule(s) of the
(c) The facts or conduct relied on to establish the violation.
(d) A statement that the respondent has the right to request a hearing to be conducted in accordance with Sections 120.569 and 120.57, F.S., and to be represented by counsel or other qualified representative.
(5) Requests for hearing filed by the respondent in accordance with this rule shall include:
(a) The name, address, and telephone number, and facsimile number (if any) of the respondent.
(b) The name, address, telephone number, facsimile number of the attorney or qualified representative of the respondent (if any) upon whom service of pleadings and other papers shall be made.
(c) A statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the petition must so indicate.
(d) A statement of when the respondent received notice of the administrative complaint.
(e) A statement including the file number to the administrative complaint.
Specific Authority 120.54(5) FS. Law Implemented 120.569, 120.57, 120.60 FS. History–New________.
28-106.202 Amendment of Petitions or Requests for Hearing.
A petition or request for hearing The petitioner may be amended the petition prior to the designation of the presiding officer by filing and serving an amended petition or amended request for hearing in the manner prescribed for filing and serving an original petition or request for hearing. Thereafter the petitioner may amend the petition or request for hearing after the designation of the presiding officer only upon order of the presiding officer.
Specific Authority 120.54(5) FS. Law Implemented 120.569, 120.57 FS. History–New 4-1-97, Amended_________.
28-106.204 Motions.
(1) No change.
(2) Unless otherwise provided by law, motions to dismiss the petition or request for hearing shall be filed no later than 20 days after service of the petition on the party.
(3) No change.
(4) In cases in which the Division of Administrative Hearings has final order authority, aAny party may move for summary final order whenever there is no genuine issue as to any material fact. The motion may be accompanied by supporting affidavits. All other parties may, within seven days of service, file a response in opposition, with or without supporting affidavits. A party moving for summary final order later than twelve days before the final hearing waives any objection to the continuance of the final hearing.
(5) In cases in which the Division of Administrative Hearings has recommended order authority, a party may file a motion to relinquish jurisdiction whenever there is no genuine issue as to material fact.
(6)(5) Motions for extension of time shall be filed prior to the expiration of the deadline sought to be extended and shall state good cause for the request.
Specific Authority 120.54(5) FS. Law Implemented 120.569, 120.57 FS. History–New 4-1-97, Amended__________.
28-106.205 Intervention.
Persons other than the original parties to a pending proceeding whose substantial interest will may be determined in affected by the proceeding and who desire to become parties may petition the presiding officer for leave to intervene. Except for good cause shown, petitions for leave to intervene must be filed at least 20 days before the final hearing unless otherwise provided by law. The petition shall conform to subsection 28-106.201(2), F.A.C., and shall include allegations sufficient to demonstrate that the intervenor is entitled to participate in the proceeding as a matter of constitutional or statutory right or pursuant to agency rule, or that the substantial interests of the intervenor are subject to determination or will be affected through the proceeding. The parties may, within 7 days of service of the petition, file a response in opposition. The presiding officer may impose terms and conditions on the intervenor to limit prejudice to other parties.
Specific Authority 120.54(5) FS. Law Implemented 120.569, 120.57 FS. History–New 4-1-97, Amended__________.
28-106.213 Evidence.
(1) through (4) No change.
(5) If requested and if the necessary equipment is reasonably available, testimony may be taken by means of video teleconference or by telephone.
(a) No change.
(b) For any testimony taken by means of video teleconference or telephone, a notary public must be physically present with the witness to administer the oath. If testimony is taken by telephone, tThe notary public shall provide a written certification to be filed with the presiding officer confirming the identity of the witness, and confirming the affirmation or oath by the witness. It shall be the responsibility of the party calling the witness to secure the services of a notary public.
Specific Authority 120.54(5) FS. Law Implemented 120.569, 120.57 FS. History–New 4-1-97, Amended__________.
28-106.217 Exceptions and Responses.
(1) Parties may file exceptions to findings of fact and conclusions of law contained in recommended orders with the agency responsible for rendering final agency action within 15 days of entry of the recommended order except in proceedings conducted pursuant to Section 120.57(3), F.S. Exceptions shall identify the disputed portion of the recommended order by page number and paragraph, shall identify the legal basis for the exception, and shall include any appropriate and specific citations to the record.
(2) Exceptions shall be provided to all parties by facsimile or electronic mail, if number or address is provided, the day they are filed with the agency.
(3)(2) Any party may file responses to another party’s exceptions within 10 days from the date the exceptions were served filed with the agency.
(4)(3) Notwithstanding Rule 28-106.103, F.A.C., Nno additional time shall be added to the time limits for filing exceptions or responses to exceptions when service has been made by mail.
Specific Authority 120.54(5) FS. Law Implemented 120.569, 120.57 FS. History–New 4-1-97, Amended__________.
28-106.301 Initiation of Proceedings.
(1) Unless otherwise provided by statute and except for agency enforcement and disciplinary actions initiated under Rule 28-106.2015, F.A.C. iInitiation of a proceeding shall be made by written petition to the agency responsible for rendering final agency action. The term “petition” includes any document which requests a proceeding. Each petition shall be legible and on 8 1/2 by 11 inch white paper or on a form provided by the agency. Unless printed, the impression shall be on one side of the paper only and lines shall be doubled-spaced.
(2) All petitions filed under these rules shall contain:
(a) through (b) No change.
(c) An explanation of how the petitioner’s substantial interests will be affected by the agency determination;
(d)(c) A statement of when and how the petitioner received notice of the agency decision;
(e)(d) A concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency’s proposed action;
(f)(e) A statement of the specific rules or statutes that the petitioner contends require reversal or modification of the agency’s proposed action; and
(g)(f) A statement of the relief sought by the petitioner, stating precisely the action petitioner wishes the agency to take with respect to the agency’s proposed action.
(3) If the petition does not set forth disputed issues of material fact, the agency shall refer the matter to the presiding officer designated by the agency with a request that the matter be scheduled for a proceeding not involving disputed issues of material fact. The request shall be accompanied by a copy of the petition and a copy of the notice of agency action.
(4) A petition shall be dismissed if it is not in substantial compliance with subsection (2) of this rule or it has been untimely filed. Dismissal of a petition shall, at least once, be without prejudice to petitioner’s filing a timely amended petition curing the defect, unless it conclusively appears from the face of the petition that the defect cannot be cured.
(5) The agency shall promptly give written notice to all parties of the action taken on the petition, shall state with particularity its reasons if the petition is not granted, and shall state the deadline for filing an amended petition if applicable.
Specific Authority 120.54(5) FS. Law Implemented 120.54(5), 120.569, 120.57 FS. History–New 4-1-97, Amended 9-17-98, __________.
28-106.305 Conduct of Proceedings.
(1) The presiding officer before whom a case is pending may issue any orders necessary to effectuate discovery, to prevent delay, and to promote the just, speedy, and inexpensive determination of all aspects of the case, including bifurcating the proceeding.
(2) It during the course of the proceeding a disputed issue of material fact arises, then, unless waived by all parties, the proceeding under this Part shall be terminated and a proceeding under Part II shall be conducted.
Specific Authority 120.54(5) FS. Law Implemented 120.569, 120.57 FS. History–New 4-1-97, Amended__________.
28-106.401 Purpose Scope.
This rule applies to all mediation proceedings conducted pursuant to Section 120.573, F.S.
(1) Mediation is a process where by a third person acts to encourage and facilitate a resolution of an administrative dispute, without prescribing what the resolution should be. Mediation is an informal and nonadversarial process with the objective of helping the parties reach a mutually acceptable agreement.
(2) Mediation proceedings are available to settle administrative disputes if provided for in the announcement of agency actions. If an agreement to mediation by the agency and all parties is filed within 10 days of the announcement for election of an administrative remedy under Sections 120.569 and 120.57, F.S. the time limitations shall be tolled until the completion of the mediation with settlement or impasse.
(1) Except for the initial agreement to mediate, which must be made within 10 days after the time period stated in the announcement for election of an administrative remedy under Sections 120.569 and 120.57, F.S., any time frames may be extended by written agreement of the parties.
(2) Participation in the mediation does not confer or limit standing in any subsequent judicial or administrative proceeding. However, non-participation may limit standing as provided in Rule 28-106.111, F.A.C.
Specific Authority 120.54(5) FS. Law Implemented 120.573 FS. History–New 4-1-97, Amended 3-18-98.________.
28-106.402 Contents of Request for Mediation.
The request for mediation shall contain:
(1) The name, address, and telephone number of the party person requesting mediation and that party’s person’s representative, if any;
(2) No change.
(3) An explanation of how the person’s substantial interests will be affected by the agency determination; and
(4) A statement of the relief sought.
Specific Authority 120.54(5) FS. Law Implemented 120.573 FS. History–New 4-1-97, Amended__________.
28-106.501 Emergency Action.
(1) If the agency finds that immediate danger to the public health, safety, or welfare requires emergency action, the agency shall enter an emergency order summarily suspending, limiting, or restricting a license, or taking such other emergency action as is authorized by law.
(2) The agency’s emergency order shall include a notice of the licensee’s right to an immediate appeal of the emergency final order pursuant to Section 120.569(2)(n), F.S. or 120.60(6), F.S.
(3) In the case of the emergency suspension, limitation, or restriction of a license, unless otherwise provided by law, within 20 days after emergency action taken pursuant to paragraph (1) of this rule, the agency shall initiate administrative proceedings in compliance with Sections 120.569, 120.57 and 120.60, F.S., and Rule 28-106.2015, F.A.C.
Specific Authority 120.54(5) FS. Law Implemented 120.569, 120.57, 120.60(6) FS. History–New __________.