The purpose and effect of the proposed rule amendment is to amend rule chapter language to clarify the filing date of documents; to ensure parties have correct contact information as to other parties; to reduce the costs to all parties by requiring ...

 

ADMINISTRATION COMMISSION

RULE NO.: RULE TITLE:
28-106.104: Filing
28-106.105: Appearances
28-106.106: Who May Appear; Criteria for Qualified Representatives
28-106.201: Initiation of Proceedings
28-106.2015: Agency Enforcement and Disciplinary Actions
28-106.204: Motions
28-106.205: Intervention
28-106.213: Evidence
28-106.214: Recordation
28-106.217: Exceptions and Responses
28-106.301: Initiation of Proceedings
28-106.303: Motions
28-106.306: Recordation
28-106.402: Contents of Request for Mediation
28-106.404: Contents of Agreement to Mediate

PURPOSE AND EFFECT: The purpose and effect of the proposed rule amendment is to amend rule chapter language to clarify the filing date of documents; to ensure parties have correct contact information as to other parties; to reduce the costs to all parties by requiring documents be filed only once; to clarify when representative must be qualified; conform to present technology with respect to e-mail address; to clarify when a reply is permitted; to clarify when a motion to dismiss must be filed; to conform to statutory changes; to add uniformity to proceedings by requiring that intervention be by motion rather than petition, which provides the procedural framework attendant to motions; to reduce allegations required for intervention from those required for a petition which initiates the proceeding; to clarify applicable statutory sections; to provide for a procedure for obtaining official recognition; to establish a procedure for the use of interpreters and translators; and to delete obsolete requirement that court reporters be certified.

SUBJECT AREA TO BE ADDRESSED: Decisions Determining Substantial Interests.

RULEMAKING AUTHORITY: 120.54(5) FS.

LAW IMPLEMENTED: 120.54(2)(a), 120.54(2)(c), 120.54(2)(d), 120.54(3)(a), 120.54(3)(c), 120.54(3)(c)2., 120.54(5), 120.54(7), 120.525 FS.

IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE NOTICED IN THE NEXT AVAILABLE FLORIDA ADMINISTRATIVE WEEKLY.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT IS: Barbara Leighty, Office of the Governor, Room 1801, The Capitol, Tallahassee, Florida, [phone]

 

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

 

28-106.104 Filing.

(1) No change.

(2) All pleadings filed with the agency shall contain the following:

(a) through (c) No change.

(d) The name, address, any e-mail address, and telephone number of the person filing the pleading;

(e) through (f) No change.

(3) Any document received by the office of the agency clerk before after 5:00 p.m. shall be filed as of that day but any document received after 5:00 p.m. shall be filed as of 8:00 a.m. on the next regular business day.

(4) No change.

(5) All parties, if they are not represented, or their attorneys or qualified representatives shall promptly notify all other parties and the presiding officer of any changes to their contract information by filing a notice of the change.

(6)(5) All papers filed shall be titled to indicate clearly the subject matter of the paper and the party requesting relief.

(7)(6) All original pleadings shall be on white paper measuring 8 1/2 by 11 inches, with margins of no less than one inch. Originals shall be printed or typewritten.

(7) If an agency allows documents to be filed by electronic mail or facsimile transmission, the following paragraphs apply:

(a) 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) 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 signals and accepts the full risk that the document may not be properly filed with the clerk as a result.

(c) The filing date for a document transmitted by electronic mail or facsimile shall be the date the agency clerk receives the complete document.

(8) A document shall be filed by only one method (e-filing, facsimile, courier, hand-delivery, or U.S. mail) and shall not be filed multiple times. A duplicate filing will not be docketed and will be destroyed.

Rulemaking Authority 14.202, 120.54(5) FS. Law Implemented 120.54(5) FS. History–New 4-1-97, Amended 1-15-07,________.

 

28-106.105 Appearances.

(1) through (2) No change.

(3) On written motion served on the party represented and all other parties of record, the presiding officer shall grant counsel of record and qualified representatives leave to withdraw for good cause shown. The motion shall contain the address, any e-mail address, and telephone number of the party represented.

(4) No change.

Rulemaking Authority 14.202, 120.54(5) FS. Law Implemented 120.54(5) FS. History–New 4-1-97, Amended________.

 

28-106.106 Who May Appear; Criteria for Qualified Representatives.

(1) No change.

(2)(a) A party seeking representation by a qualified representative shall file a written request with the presiding officer as soon as practicable, but no later than any pleading filed by the person seeking to appear on behalf of the party. The request shall identify the name, address, e-mail 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 at the party’s own expense and has chosen otherwise.

(b) through (c) No change.

(3) through (5) No change.

Rulemaking Authority 14.202, 120.54(5) FS. Law Implemented 120.54(5) FS. History–New 4-1-97, Amended 1-15-07,________.

 

28-106.201 Initiation of Proceedings.

(1) No change.

(2) All petitions filed under these rules shall contain:

(a) No change.

(b) The name, address, any e-mail address, facsimile number, and telephone number of the petitioner, if the petitioner is not represented by an attorney or a qualified representative; the name, address, and telephone number of the petitioner’s representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioner’s substantial interests will be affected by the agency determination;

(c) through (g) No change.

(3) No change.

Rulemaking Authority 14.202, 120.54(3), (5) FS. Law Implemented 120.54(3) FS. History–New 4-1-97, Amended 9-17-98, 1-15-07,________.

 

28-106.2015 Agency Enforcement and Disciplinary Actions.

(1) through (4) No change.

(5) Requests for hearing filed by the respondent in accordance with this rule shall include:

(a) The name, address, any e-mail address, and telephone number, and facsimile number, (if any,) of the respondent if the respondent is not represented.

(b) The name, address, e-mail address, telephone number, and 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) through (e) No change.

Rulemaking Authority 14.202, 120.54(5) FS. Law Implemented 120.54(5) FS. History–New 1-15-07, Amended________.

 

28-106.204 Motions.

(1) All requests for relief shall be by motion. All motions shall be in writing unless made on the record during a hearing, and shall fully state the action requested and the grounds relied upon. The original written motion shall be filed with the presiding officer. When time allows, the other parties may, within 7 days of service of a written motion, file a response in opposition. No reply to the response shall be permitted unless leave is sought from and given by the presiding officer. Written motions will normally be disposed of after the response period has expired, based on the motion, together with any supporting or opposing memoranda. The presiding officer shall conduct such proceedings and enter such orders as are deemed necessary to dispose of issues raised by the motion.

(2) Unless otherwise provided by law, motions to dismiss the petition or request for hearing shall be filed no later than 20 days after assignment of the presiding officer, unless the motion is based upon a lack of jurisdiction of incurable errors in the petition service.

(3) All mMotions, other than a motion to dismiss, shall include a statement that the movant has conferred with all other parties of record and shall state as to each party whether the party has any objection to the motion. Any statement that the movant was unable to contact the other party or parties before filing the motion must provide information regarding the date(s) and method(s) by which contact was attempted.

(4) In cases in which the Division of Administrative Hearings has final order authority, any 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.

(4)(6) 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.

Rulemaking Authority 14.202, 120.54(5) FS. Law Implemented 120.54(5) FS. History–New 4-1-97, Amended 1-15-07,_________.

 

28-106.205 Intervention.

(1) Persons other than the original parties to a pending proceeding whose substantial interest will be affected by the proceeding and who desire to become parties may move petition the presiding officer for leave to intervene. Except for good cause shown, motions 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 motion petition, file a response in opposition. The presiding officer may impose terms and conditions on the intervenor to limit prejudice to other parties.

(2) The motion to intervene shall contain the following information:

(a) The name and address of the intervenor and, if the intervenor is not represented by an attorney or a qualified representative, the e-mail address and facsimile number, if any, of the intervenor; and

(b) The name, address, e-mail address, telephone number, and any facsimile number of the intervenor’s attorney or qualified representative; and

(c) 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 by the proceeding; and

(d) A statement as to whether the intervenor supports or opposes the preliminary agency action; and

(e) The statement required by subsection 28-106.204(3), F.A.C.; and

(f) The signature of the intervenor or intervenor’s attorney or qualified representative; and

(g) The date.

(3) Specifically-named persons, whose substantial interests are being determined in the proceeding, may become a party by entering an appearance and need not request leave to intervene.

Rulemaking Authority 14.202, 120.54(5) FS. Law Implemented 120.54(5) FS. History–New 4-1-97, Amended 1-15-07,________.

 

28-106.213 Evidence.

(1) through (2) No change.

(3) Hearsay evidence, whether received in evidence over objection or not, may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding unless the evidence falls within an exception to the hearsay rule as found in Sections 90.801-.805 Chapter 90, F.S.

(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.

(6) When official recognition is requested, the parties shall be notified and given an opportunity to examine and contest the material. Requests for official recognition shall be by motion and shall be considered in accordance with the provisions governing judicial notice in Sections 90.201-.203, F.S.

Rulemaking Authority 14.202, 120.54(5) FS. Law Implemented 120.54(5) FS. History–New 4-1-97, Amended 1-15-07,_________.

 

28-106.214 Preserving Testimony Recordation.

(1) Responsibility for preserving the testimony at the final hearings shall be that of the agency transmitting the petition to the Division of Administrative Hearings pursuant to Sections 120.569 and 120.57, F.S., the agency whose rule is being challenged, or the agency whose action initiated the proceeding. Proceedings shall be recorded by a certified court reporter or by recording instruments.

(2) No later than 10 days prior to the final hearing, the agency shall notify the parties of the method by which the agency will record the testimony at the final hearing. Any party to a hearing may, at its own expense, provide a certified court reporter if the agency does not. The presiding officer may provide a certified court reporter. At hearings reported by a court reporter, any party who wishes a transcript of the testimony shall order the same at its own expense. If a court reporter records the proceedings, the recordation shall become the official transcript.

(3) If a transcript is prepared, the original document, not an electronic or facsimile copy, shall be filed with the presiding officer.

(4) No later than 15 days prior to any hearing, a party who needs a translator or interpreter in order to testify, present, or understand evidence, or otherwise fully participate in the hearing, shall give notice to all other parties. This notice shall include the name of the translator or interpreter the party intends to use, the nature of the translation or interpretattion services needed, contact information for the translator or interpreter, and a disclosure of the relationship, if any, of the translator or interpreter to the person for whom translation or interpretation services will be provided. This notice shall be given by electronic mail, if possible. No later than 5 days prior to the hearing for which a party has given this notice, any other party may give notice of its objection to the proposed translator or interpreter. Such notice shall be provided to the proposed translator or interpreter, to the party who has proposed the translator or interpreter, and to all other parties and shall advise that the objecting party will provide, at its sole expense, a certified translator or interpreter instead. Any translator or interpreter must be administered an oath or affirmation before translating or interpreting testimony.

Rulemaking Authority 14.202, 120.54(5) FS. Law Implemented 120.54(5) FS. History–New 4-1-97, Amended 3-18-98,_________.

 

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 or 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 a facsimile number or e-mail address has been is provided, the day they are filed with the agency.

(3) through (4) No change.

Rulemaking Authority 14.202, 120.54(5) FS. Law Implemented 120.54(5) FS. History–New 4-1-97, Amended 1-15-07,________.

 

28-106.301 Initiation of Proceedings.

(1) No change.

(2) All petitions filed under these rules shall contain:

(a) No change.

(b) The name, address, any e-mail address, and telephone number of the petitioner, if the petitioner is not represented by an attorney or qualified representative; the name, address, e-mail address, facsimile number, and telephone number of the petitioner’s representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioner’s substantial interests will be affected by the agency determination;

(c) through (h) No change.

Rulemaking Authority 14.202, 120.54(5) FS. Law Implemented 120.54(5) FS. History–New 4-1-97, Amended 9-17-98, 1-15-07, 12-24-07,________.

 

28-106.303 Motions.

(1) All requests for relief shall be by motion. All motions shall be in writing unless made on the record during a hearing and shall fully state the action requested and the grounds relied upon. The original motion shall be filed with the presiding officer. When time allows, the other parties may, within seven days of service of a written motion, file a response in opposition. No reply to the response shall be permitted unless leave is sought from and given by presiding officer. Written motions will normally be disposed of after the response period has expired, based on the motion, together with any supporting or opposing memoranda. The presiding officer shall conduct proceedings and enter such orders as are deemed necessary to dispose of issues raised by the motion.

(2) All mMotions, other than a motion to dismiss, shall include a statement that the movant has conferred with all other parties of record and shall state whether any party has an objection to the motion.

Rulemaking Authority 14.202, 120.54(5) FS. Law Implemented 120.54(5) FS. History–New 4-1-97, Amended_________.

 

28-106.306 Preserving Testimony Recordation.

(1) Responsibility for preserving the testimony at the final hearings shall be that of the agency responsible for taking final agency action. Proceedings shall be recorded by a certified court reporter or by recording instruments.

(2) Any party to a hearing may, at its own expense, provide a certified court reporter if the agency does not. The presiding officer may provide a certified court reporter. At hearings reported by a court reporter, any party who wishes a transcript of the testimony shall order the same at its own expense. If a court reporter records the proceedings, the recordation shall become the official transcript.

(3) If a transcript is prepared, the original document, not an electronic or facsimile copy, shall be filed with the presiding officer.

(4) No later than 15 days prior to any hearing, a party who needs a translator or interpreter in order to testify, present or understand evidence, or otherwise fully participate in the hearing shall give notice to all other parties. This notice shall include the name of the translator or interpreter the party intends to use, the nature of the translation or interpretation services needed, contact information for the translator or interpreter, and a disclosure of the relationship, if any, of the translator or interpreter to the person for whom translation or interpretation services will be provided. This notice shall be given by electronic mail, if possible. No later than 5 days prior to the hearing for which a party has given this notice, any other party may give notice of its objection to the proposed translator or interpreter. Such notice shall be provided to the proposed translator or interpreter, to the party who has proposed the translator or interpreter, and to all other parties and shall advise that the objecting party will provide, as its sole expense, a certified translator or interpreter instead. Any translator or interpreter must be administered an oath or affirmation before translating or interpreting testimony.

Rulemaking Authority 14.202, 120.54(5) FS. Law Implemented 120.54(5) 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, any e-mail address, and telephone number of the party requesting mediation and that party’s representative, if any; and

(2) A statement of the preliminary agency action;.

Rulemaking Authority 14.202, 120.54(5) FS. Law Implemented 120.54(5) FS. History–New 4-1-97, Amended 1-15-07,________.

 

28-106.404 Contents of Agreement to Mediate.

The agreement to mediate shall set forth:

(1) The names, addresses, any e-mail addresses, and telephone numbers of any persons who may attend the mediation;

(2) The name, address, e-mail address, and telephone number of the mediator agreed to by the parties;

(3) through (7) No change.

Rulemaking Authority 14.202, 120.54(5) FS. Law Implemented 120.54(5) FS. History–New 4-1-97, Amended________.