Title: Uniform Rules of Procedure
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Permanent Link: http://ufdc.ufl.edu/WL00003985/00001
 Material Information
Title: Uniform Rules of Procedure
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Uniform Rules of Procedure
General Note: Box 16, Folder 7 ( WCRWSA - 1998 ), Item 14
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Volume ID: VID00001
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Full Text






AGENDA ITEM 23


March 4, 1998


FROM:


The Authtty indater


Board of Directors
West Coast Regional Water Supply Authority

Donald D. Conn, General Counsel /:
-\


SUBJECT: Uniform Rules of Procedure


ISSUE: Should the Authority follow the Uniform Rules of Procedure (Chapter 28, Florida
Administrative Code), should exceptions be sought, or should the Authority initiate rule-making to repeal
current rules in conflict with the Uniform Rules of Procedure?


RECOMMENDATION: It is recommended that the Authority follow the Uniform Rules of
Procedure, and that rule-making be initiated to repeal current Authority rules in conflict with the
Uniform Rules of Procedure.


DISCUSSION: 1
In those revision!
Administration Cc
1997, which appli
adopted by the Ad


he 1996 Florida Legislature substantially revised Chapter 120, Florida Statutes.
, a requirement was included in Section 120.54, Florida Statutes, that the
mission (Governor and Cabinet) adopt Uniform Rules of Procedure by July 1,
r to all agencies on July 1, 1998. A copy of the Uniform Rules of Procedure
ministration Commission is attached.


If any agency determines that it cannot comply with one or more of these Uniforms Rules, the
agency may petition the Administration Commission requesting exceptions to the Uniform Rules,
and explain the basis for each requested exception prior to July 1, 1998. The General Counsel has
reviewed the Unif rm Rules of Procedure, and it is recommended that the Authority not seek any
exception to these rules. It is the opinion that the General Counsel that compliance with these
procedural rules will not alter the Authority's current procedures, and will not adversely impact the
Authority.

It is, therefore, recommended that the Authority follow and comply with the Uniform Rules of
Procedure (Chapter 28, Florida Administrative Code), and that the Authority initiate rule-making
to repeal any of its current rules found in Chapter 49B, Florida Administrative Code, which are in
conflict with the Uniform Rules of Procedure.

DDC/rak

Attachment


T:\GENCONCL\ CNN\BOARD \.NI -RTULE.RTF


DATE:





I


Uniform Rules of Procedure
Florida Administrative Code










CHAPTER 28-101
ORGANIZATION
28-101.001 Statement of Agency
Organization and Operation.
(1) The agency head shall main-
tain a current Statement ofAgency Or-
ganization and Operation. The state-
ment shall describe the organization of
the agency and outline the general
course of the agency's operations. The
purpose of the statement is:
(a) To inform the public, in a com-
plete and concise manner, of the nature
of the agency's business, operations,
delegation of authority, internal orga-
nization 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 Or-
ganization 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, du-
ties, responsibilities, statutory author-
ity, and statutes and rules they are
charged with implementing. The des-
ignation 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, appli-
cations 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, in-
cluding applicable telephone numbers,
and set forth the acceptable nature and
scope of such filings, including the fol-
lowing:
1. That a party who files a docu-
ment by electronic transmission repre-
sents that the original physically signed
,c" 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, dis-
ruption, 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 elec-
tronically 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 about variances
from or waivers of agency rules, and
indicate how to file a petition for vari-
ance or waiver.
(3) The agency head shall provide
a copy of its Statement ofAgency Orga-
nization and Operation to any person
upon request.
Specific Authority 120.54(5) FS. Law
Implemented 120.54(5Xb)5. FS.
History-New 4-1-97.

CHAPTER 28-102
AGENDAAND SCHEDULING OF
MEETINGS AND WORKSHOPS
28-102.001 Notice of Public Meeting,
Hearing, or Workshop.
28-102.002 Agenda of Meetings, Hear-
ings, and Workshops.
28-102.003 Emergency Meetings.
28-102.001 Notice of Public Meet-
ing, Hearing, or Workshop.
(1) Except where otherwise pro-
vided, the agency shall give at least
seven days notice of any public meet-
ing, hearing, or workshop by publica-
tion in the Florida Administrative
Weekly. Provisions regarding notices of
rulemaking hearings are found in Rule
28-103.001. Provisions regarding no-
tices of hearings in proceedings for de-
termining substantial interests are
found in Rules 28-106.208 and 28-
106.302.
(2) The agency shall utilize the
following form in providing notice of the
public meeting, hearing, or workshop.
NOTICE OF PUBLIC MEETING,
HEARING, OR WORKSHOP
The (name of the agency) announces
a public meeting, hearing, or workshop
to which all persons are invited.
DATE AND TIME: -
PLACE: -
PURPOSE: --
A copy of the agenda may be obtained
by writing to (name of the agency) at
(headquarters address) or by calling
(name) at (phone #).


Pursuant to the provisions of the
Americans with Disabilities Act, any
person requiring special accommoda-
tions to participate in this workshop/
hearing/meeting is asked to advise the
agency at least 48 hours before the
workshop/hearing/meeting by contact-
ing (name) at (telephone number). If
you are hearing or speech impaired,
please contact the agency by calling
(telephone number of TDD).
Specific Authority 120.54(5) FS. Law
Implemented 120.525 FS.
History-New 4-1-97.
28-102.002 Agenda of Meetings,
Hearings, and Workshops.
(1)(a) The agenda shall state with
specificity the items which will be con-
sidered at a meeting, hearing, or work-
shop.All matters involving the exercise
of agency discretion and policy-making
shall be listed and summarized on the
agenda. Matters which are solely min-
isterial, or internal administrative
matters which do not affect the inter-
ests of the public generally, may be in-
cluded on the agenda.
(b) The agency shall utilize the
following form, or substantially simi-
lar form in preparing its agenda:
NAME OF AGENCY
TIME, DATE & PLACE OF MEETING
THIS MEETING IS OPEN TO THE
PUBLIC
1. Call to Order.
2. Review of Minutes.
3. Old Business: Specific listing
of all matters involving agency discre-
tion or policy-making with brief sum-
mary of each.
4. New Business: Specific listing
of all matters involving agency discre-
tion or policy-making with brief sum-
mary of each.
5. Other Business: Specific list-
ing of all matters involving agency dis-
cretion or policy-making with brief
summary of each.
(2) The person designated to pre-
side may make specific changes in the
agenda after it has been made avail-
able for distribution, only for "good
cause" shown.
Specific Authority 120.54(5) FS. Law
Implemented 120.525 FS.
History-New 4-1-97.
28-102.003 Emergency Meetings.
(1) The agency may hold an emer-
gency meeting notwithstanding the pro-
visions of Rules 28-102.001 and 28-
102.002 for the purpose of acting upon
emergency matters affecting the pub-









lic health, safety or welfare.
(2) Whenever an emergency meet-
ing is scheduled to be held, the agency
shall give notice of the meeting by any
procedure that is fair under the circum-
stances, such as notifying at least one
major newspaper of general circulation
in the area where the meeting will take
place, and the agency may also notify
all major wire services of the time, date,
place, and purpose of the meeting.
(3) Following an emergency meet-
ing, the agency shall publish in the
appropriate publication prescribed by
Section 120.54(3), F.S., notice of the
time, date and place of the meeting, a
statement setting forth the reasons why
an emergency meeting was necessary
and a statement setting forth the ac-
tion taken at the meeting. This notice
is in addition to the notice requirements
of Section 120.525(3Xc), F.S.
Specific Authority 120.54(5) FS. Law
Implemented 120.525(3), 120.54(5Xb)l.
FS.
History-New 4-1-97.

CHAPTER 28-103
RULEMAKING
28-103.001 Notice ofAgency Rulemaking
Proceedings.
28-103.002 Rule Development Work-
shops.
28-103.003 Negotiated Rulemaking.
28-103.004 Public Hearing.
28-103.005 Evidentiary Proceeding Dur-
ing Rulemaking.
28-103.006 Petitions to Initiate Rule-
making.
28-103.001 Advance Notice of
Agency Rulemaking Proceedings.
Any person may file a written request
with the agency to be given advance
notice of agency proceedings to adopt,
amend, or repeal a rule, as provided in
Section 120.54(3)(a)3., F.S. The written
request may specify that advance no-
tice is requested of all agency
rulemaking proceedings, or of only
those agency rulemaking proceedings
involving specific subjects.
Specific Authority 120.54(5) FS. Law
Implemented 120.54(2)(a), (3)(a) FS.
History-New 4-1-97.
28-103.002 Rule Development Work-
shops.
(1) Whenever requested in writ-
ing by any affected person, the agency
must either conduct a rule development
workshop prior to proposing rules for
adoption or the agency head must ex-
plain in writing why a workshop is un-


necessary. When rule development
workshops are conducted in various
regions of the state, they may be con-
ducted either in person or through com-
munications media technology as set
out in Chapter 28-109, FA.C.
(2) The agency should consider
conducting a rule development work-
shop whenever a workshop would help
the agency understand and address
concerns of affected persons. The
agency should consider the following
factors in determining whether to con-
duct a rule development workshop:
(a) The complexity or controver-
sial nature of issues being addressed.
(b) Whether rules being consid-
ered for adoption have an impact on
regulated interests.
(c) Whether rules being consid-
ered for adoption involve people with
competing interests.
(d) Whether rules being consid-
ered for adoption relate to emerging
policies for which investigation of the
factual basis for regulatory alternatives
is required.
Specific Authority 120.54(5) FS. Law
Implemented 120.54(2)(c), (5) FS.
History-New 4-1-97.
28-103.003 Negotiated Rulemaking.
(1) The agency may develop rules
through negotiated rulemaking. Nego-
tiated rulemaking is a process that uses
a committee of designated representa-
tives to draft a mutually acceptable
proposed rule. The agency should con-
sider the following factors in determin-
ing whether to use negotiated
rulemaking:
(a) Whether there is a need for a
rule;
(b) Whether there are identifiable
multiple interests that will be affected
by the rule;
(c) Whether a balanced commit-
tee of interested persons who are will-
ing to negotiate in good faith and who
can represent identified interests can
be assembled;
(d) Whether there is a reasonable
likelihood that a committee can reach
a consensus within a fixed period of
time;
(e) Whether negotiated rulemaking
processes will unreasonably delay imple-
menting legislation;
(f) Whether the agency has re-
sources, including technical assistance,
to commit to support negotiated
rulemaking;
(g) Whether the agency will use


the consensus of the committee as the
basis for proposing a rule, consistent
with its statutory responsibilities.
(2) When the agency chooses to
use negotiated rulemaking, it shall
publish a notice in the Florida Admin-
istrative Weekly. The notice shall in-
clude:
(a) An announcement that the
agency intends to convene a negotiated
rulemaking proceeding;
(b) A description of the subject and
scope of the rule to be developed;
(c) In addition to the require-
ments of Section 120.54(2)(d)2., F.S., a
list of the rulemaking committee mem-
bers, including their addresses and
business telephone numbers;
(d) A schedule for completing the
work of the committee;
(e) A statement of how persons
who believe that their interests are not
adequately represented may apply to
participate on the committee.
(3) The agency shall respond in
writing to requests for membership set-
ting forth reasons for granting or de-
nying the requests.
(4) The negotiating committee
shall be chaired by a neutral facilita-
tor or mediator. The facilitator/media-
tor shall serve subject to the approval
of the committee.
(5) The negotiating committee
shall report the results of its delibera-
tions to the agency within the time
frame specified in the notice of negoti-
ated rulemaking.
Specific Authority 120.54(5) FS. Law
Implemented 120.54(2Xd) FS.
History-New 4-1-97.
28-103.004 Public Hearing.
(1) The notice of intent to adopt,
amend, or repeal a rule may provide
that a public hearing will be held.
(2) A request for a public hearing,
pursuant to Section 120.54(3)(c)1., F.S.,
shall be in writing and shall specify how
the person requesting the public hear-
ing would be affected by the proposed
rule. The request shall be submitted to
the agency within 21 days after notice
of intent to adopt, amend, or repeal the
rule is published as required by law, in
accordance with the procedure for sub-
mitting requests for public hearing
stated in the notice of intent to adopt,
amend, or repeal the rule.
(3) The agency may conduct a
public hearing. The agency must con-
duct a public hearing if the proposed
rule does not relate exclusively to prac-










tice or procedure, and if an affected
person timely submits a written re-
quest.
(4) If the notice of intent to adopt,
amend, or repeal a rule did not notice a
public hearing and the agency deter-
mines to hold a public hearing, the
agency shall publish notice of a public
hearing in the same manner as is re-
quired for publication of a notice of
rulemaking at least 7 days before the
scheduled public hearing. The notice
shall specify the date, time, and loca-
tion of the public hearing, and the
name, address, and telephone number
of the agency contact person who can
provide information about the public
hearing.
(5) The purpose of a public hear-
ing is to provide affected persons and
other members of the public a reason-
able opportunity for presentation of
evidence, argument and oral state-
ments, within reasonable conditions
and limitations imposed by the agency
to avoid duplication, irrelevant com-
ments, unnecessary delay, or disruption
of the proceeding.
(6) The agency head, any member
thereof, or any person designated by the
agency head may preside at the public
hearing. The agency must ensure that
the persons responsible for preparing
the proposed rule are available to ex-
plain the agency's proposal and to re-
spond to questions or comments regard-
ing the proposed rule.
(7) Written statements may be
submitted by any person within a speci-
fied period of time prior to or following
the public hearing. All timely submit-
ted written statements shall be consid-
ered by the agency and made a part of
the rulemaking record.
Specific Authority 120.54(5) FS. Law
Implemented 120.525, 120.54(3)(c) FS.
History-New 4-1-97.
28-103.005 Evidentiary Proceeding
During Rulemaking.
(1) At any time before the conclu-
sion of a public hearing conducted un-
der the provisions of Section 120.54(3),
F.S., any person who asserts that his
or her substantial interests will be af-
fected in the proceedings, and who dem-
onstrates that the rulemaking proceed-
ings do not provide an adequate
opportunity to protect his or her sub-
stantial 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 op-
portunity to protect his or her substan-
tial interests.
(2) The agency shall determine
the merits of the request and grant or
deny it.
(3) If the agency grants the re-
quest, the rulemaking proceeding shall
be suspended until the evidentiary pro-
ceeding has been concluded. The agency
shall not file the proposed rule for adop-
tion 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 no-
tice in the same manner as is required
for the publication of a notice of
rulemaking that a request for eviden-
tiary proceeding has been submitted.
The notice shall contain sufficient in-
formation to advise substantially af-
fected persons of the proceeding.
(5) The agency may determine
that the rulemaking proceeding be con-
ducted under the provisions of Sections
120.569 and 120.57, FS., even in the
absence of a specific request.
(6) The agency head or a member
thereof may conduct the proceeding or
it may request that the Division ofAd-
ministrative Hearings assign an ad-
ministrative law judge to conduct the
proceeding. If the agency requests that
the Division of Administrative Hear-
ings assign an administrative law judge
to conduct the proceeding, the request
shall be made within 15 days of the
decision to proceed under Sections
120.569 and 120.57, F.S.
Specific Authority 120.54(5) FS. Law
Implemented 120.54(3)(c)2. FS.
History-New 4-1-97.
28-103.006 Petitions to Initiate
Rulemaking.
(1) Petitions to initiate
rulemaking pursuant to Section
120.54(7), F.S., include all petitions to
adopt, amend, or repeal a rule. All pe-
titions to initiate rulemaking must con-
tain the name, address, and telephone
number of the petitioner, the specific
rule or action requested, the reasons for
the rule or action requested, and the
facts showing that the petitioner is
regulated by the agency or has a sub-
stantial interest in the rule or action
requested.
(2) Petitions to initiate
rulemaking shall be filed with the
agency clerk.
Specific Authority 120.54(5) FS. Law


Implemented 120.54(7) FS.
History-New 4-1-97.

CHAPTER 28-104
VARIANCE OR WAIVER
28-104.001 Purpose; Construction.
28-104.002 Petition for Variance or
Waiver.
28-104.003 Comments on Petition.
28-104.004 Petition for Emergency Vari-
ance or Waiver.
28-104.005 Time for Consideration of
Emergency Petition.
28-104.006 Request for Information.
28-104.001 Purpose; Construction.
(1) The purpose of this chapter is
to implement the provisions of Section
120.542, F.S., by setting forth the uni-
form procedures for granting or deny-
ing petitions for variances from and
waivers of agency rules.
(2) This chapter should be read in
conjunction with the provisions of Sec-
tions 120.52(18), 120.52(19), and
120.542, F.S.
Specific Authority 120.54(5)(b)6.,
120.542(3) FS. Law Implemented
120.542(3) FS.
History-New 4-1-97.
28-104.002 Petition for Variance or
Waiver.
(1) A petition for a variance from
or waiver of an agency rule shall be filed
with the clerk of the agency that
adopted the rule.
(2) The petition must include the
following information:
(a) The caption shall read:
Petition for (Variance from) or (Waiver
of) Rule (Citation)
(b) The name, address, telephone
number, and any facsimile number of
the petitioner,
(c) The name, address, telephone
number, and any facsimile number of
the attorney or qualified representative
of the petitioner (if any);
(d) The applicable rule or portion
of the rule;
(e) The citation to the statute the
rule is implementing;
(f) The type of action requested;
(g) The specific facts that demon-
strate a substantial hardship or a vio-
lation of principles of fairness that
would justify a waiver or variance for
the petitioner;
(h) The reason why the variance
or the waiver requested would serve the
purposes of the underlying statute; and
(i) A statement whether the vari-
ance or waiver is permanent or tempo-











rary. If the variance or waiver is tem-
porary, the petition shall include the
dates indicating the duration of the re-
quested variance or waiver.
(3) The petition for a variance or
waiver may be withdrawn by the ap-
plicant at any time before final agency
action.
(4) Upon receipt of a petition for
variance or waiver, the agency shall
furnish a copy of the petition to any
other agency responsible for imple-
menting the rule.
Specific Authority 120.54(5)(b)6.,
120.542(3) FS. Law Implemented
120.542(5) FS.
History-New 4-1-97.
28-104.003 Comments on Petition.
(1) Any interested person or other
agency may submit written comments
on the petition for a variance or waiver
within 14 days after the notice required
by Section 120.542(6), F.S. The agency
shall state in any order whether com-
ments were received by the agency.
(2) The agency shall maintain the
comments as part of the record.
(3) The right to comment pursu-
ant to this section does not alone con-
fer party status in any proceeding aris-
ing from a petition for variance or
waiver.
Specific Authority 120.54(5)(b)6.,
120.542(3) FS. Law Implemented
120.542(6), 120.542(8) FS.
History-New 4-1-97.
28-104.004 Petition for Emergency
Variance or Waiver.
(1) A person requesting an emer-
gency variance from or waiver of an
agency rule shall so state in the cap-
tion to the petition.
(2) In addition to the other re-
quirements of Section 120.542(5), F.S.,
and this chapter, the petition shall
specify:
(a) The specific facts that make
the situation an emergency; and
(b) The specific facts to show that
the petitioner will suffer an immediate
adverse effect unless the variance or
waiver is issued more expeditiously
than the time frames provided in Sec-
tion 120.542, F.S.
Specific Authority 120.54(5)(b)6.,
120.542(3) FS. Law Implemented
120.542(3), (5) FS.
History-New 4-1-97.
28-104.005 Time for Consider-
ation of Emergency Petition.
(1) The agency shall grant or deny
a petition for emergency variance or


waiver within 30 days of its receipt by
the agency. If such petition is not
granted or denied within this time
limit, the petition shall be deemed ap-
proved unless the time limit is waived
by the petitioner.
(2) The agency shall issue a writ-
ten order granting or denying the peti-
tion. The order shall state the facts and
reasons supporting the agency's action.
The agency may deny a petition based
on its decision that the situation is not
an emergency. The petition shall then
be reviewed by the agency on a non-
emergency basis as set forth in Section
120.542(7), F.S.
(3) The duration of an emergency
variance or waiver shall be determined
by the agency. The agency may also con-
sider a petition requesting the same or
similar variance or waiver on a non-
emergency basis.
Specific Authority 120.54(5)(b)6.,
120.542(3) FS. Law Implemented
120.542(3) FS.
History-New 4-1-97.
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 rem-
edies 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 appropri-
ate contact person for additional infor-
mation and shall indicate how a.peti-
tion 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 4-1-97.

CHAPTER 28-105
DECLARATORY STATEMENTS
28-105.001 Purpose and Use of Declara-
tory Statement.
28-105.002 The Petition.
28-105.003 Agency Disposition.
28-105.001 Purpose and Use of De-
claratory Statement. A declaratory
statement is a means for resolving a
controversy or answering questions or
doubts concerning the applicability of
statutory provisions, rules, or orders
over which the agency has authority. A
petition for declaratory statement may
be used only to resolve questions or


doubts as to how the statutes, rules, or
orders may apply to the petitioner's
particular circumstances.A declaratory
statement is not the appropriate means
for determining the conduct of another
person or for obtaining a policy state-
ment of general applicability from an
agency. A petition for declaratory state-
ment must describe the potential im-
pact of statutes, rules, or orders upon
the petitioner's interests.
Specific Authority 120.54(5) FS. Law
Implemented 120.565 FS.
History-New 4-1-97.
28-105.002 The Petition.
A petition seeking a declaratory
statement shall be filed with the agency
that has the authority to interpret the
statute, rule, or order at issue and shall
provide the following information:
(1) The caption shall read:
Petition for Declaratory Statement
Before (Name of Agency)
(2) The name, address, telephone
number, and any facsimile number of
the petitioner.
(3) The name, address, telephone
number, and any facsimile number of
the attorney or qualified representative
(if any) of the petitioner.
(4) The statutory provisionss,
agency ruless, or agency orders) on
which the declaratory statement is
sought.
(5) A description of how the stat-
utes, rules, or orders may substantially
affect the petitioner in the petitioner's
particular set of circumstances.
(6) The signature of the petitioner
or of petitioner's attorney or qualified
representative.
(7) The date.
Specific Authority 120.54(5) FS. Law
Implemented 120.565 FS.
History-New 4-1-97.
28-105.003 Agency Disposition.
The agency may hold a hearing to
consider a petition for declaratory state-
ment. If the agency is headed by a col-
legial body, it shall take action on a
petition for declaratory statement only
at a duly noticed public meeting. If a
hearing is held, it shall be conducted
in accordance with Sections 120.569
and 120.57(2), F.S. The agency may rely
on the statements of fact set out in the
petition without taking any position
with regard to the validity of the facts.
Within 90 days of the filing of the peti-
tion, the agency shall render a final
order denying the petition or issuing a











declaratory statement.
Specific Authority 120.54(5) FS. Law
Implemented 120.565 FS.
History-New 4-1-97.

CHAPTER 28-106
DECISIONS DETERMINING
SUBSTANTIAL INTERESTS
PART I GENERAL PROVISIONS
28-106.101 Scope of this Chapter.
28-106.102 Presiding Officer.
28-106.103 Computation of Time.
28-106.104 Filing.
28-106.105 Appearances.
28-106.106 Who May Appear; Criteria
for Qualified Representatives.
28-106.107 Standards of Conduct for
Qualified Representatives.
28-106.108 Consolidation.
28-106.109 Notice to Interested Parties.
28-106.110 Service of Papers.
28-106.111 Point of Entry into Proceed-
ings and Mediation.

PART II HEARINGS INVOLVING
DISPUTED ISSUES OF MATERIAL
FACT
28-106.201 Initiation of Proceedings.
28-106.202 Amendment of Petitions.
28-106.203 Answer.
28-106.204 Motions.
28-106.205 Intervention.
28-106.206 Discovery.
28-106.207 Venue.
28-106.208 Notice of Hearing.
28-106.209 Prehearing Conferences.
28-106.210 Continuances.
28-106.211 Conduct of Proceedings.
28-106.212 Subpoenas.
28-106.213 Evidence.
28-106.214 Recordation.
28-106.215 Post-hearing Submittals.
28-106.216 Entry of Recommended Or-
der.
28-106.217 Exceptions and Responses.

PART III PROCEEDINGS AND
HEARINGS NOT INVOLVING DIS-
PUTED ISSUES OF MATERIAL FACT
28-106.301 Initiation of Proceedings.
28-106.302 Notice of Proceeding.
28-106.303 Motions.
28-106.304 Continuances
28-106.305 Conduct of Proceedings.
28-106.306 Recordation.
28-106.307 Post-Hearing Submittals.

PART IV MEDIATION
28-106.401 Scope.
28-106.402 Contents of Request for
Mediation.
28-106.403 Allocation of Costs and


Fees.
28-106.404 Contents of Agreement to
Mediate.
28-106.405 Standards of Conduct for
Mediators.
PART I GENERAL PROVISIONS
28-106.101 Scope of this Chapter.
This chapter shall apply in all pro-
ceedings in which the substantial in-
terests of a party are determined by the
agency and shall be construed to secure
the just, speedy, and inexpensive deter-
mination of every proceeding. This
chapter applies to all proceedings un-
der Chapter 120 except as follows:
(1) Where the agency has adopted
rules covering the subject matter pur-
suant to Section 120.54(5Xa)2., F.S.;
(2) Agency investigations or deter-
minations of probable cause prelimi-
nary to agency action; and
(3) Mediation conducted pursuant
to Section 120.573. The notice provi-
sions in Rule 28-106.111 and Part IV of
this Subchapter apply to such media-
tion.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.102 Presiding Officer.
"Presiding officer" means an agency
head, or member thereof, who conducts
a hearing or proceeding on behalf of the
agency, an administrative law judge
assigned by the Division ofAdministra-
tive Hearings, or any other person au-
thorized by law to conduct administra-
tive hearings or proceedings who is
qualified to resolve the legal issues and
procedural questions which may arise.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.103 Computation of Time.
In computing any period of time al-
lowed by this chapter, by order of a pre-
siding officer, or by any applicable stat-
ute, 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 Satur-
day, Sunday, or legal holiday, in which
event the period shall run until the end
of the next day which is not a Satur-
day, Sunday, or legal holiday. When the
period of time allowed is less than 7
days, intermediate Saturdays, Sun-
days, and legal holidays shall be ex-
cluded 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,


five days shall be added to the time lim-
its when service has been made by U.S.
mail. One business day shall be added
when service is made by overnight cou-
rier. No additional time shall be added
if service is made by hand, facsimile
telephone transmission, or other elec-
tronic transmission or when the period
of time begins pursuant to a type of
notice described in Rule 28-106.111.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.104 Filing.
(1) In construing these rules or
any order of a presiding officer, filing
shall mean received by the office of the
agency clerk during normal business
hours or by the presiding officer dur-
ing the course of a hearing.
(2) All pleadings filed with the
agency shall contain the following:
(a) The style of the proceeding in-
volved;
(b) The docket, case or file num-
ber, if any;
(c) The name of the party on
whose behalf the pleading is filed;
(d) The name, address, and tele-
phone number of the person filing the
pleading;
(e) The signature of the person fil-
ing the pleading; and
(f) A certificate of service that cop-
ies have been furnished to all other
parties as required by subsection (4) of
this rule.
(3) Any document received by the
office of the agency clerk after 5:00 p.m.
shall be filed as of 8:00 a.m. on the next
regular business day.
(4) Whenever a party files a plead-
ing or other document with the agency,
that party shall serve copies of the
pleading or other document upon all
other parties to the proceeding. A cer-
tificate of service shall accompany each
pleading or other document filed with
the agency.
(5) All papers filed shall be styled
to indicate clearly the subject matter
of the paper and the party requesting
relief.
(6) All original pleadings shall be
on white paper measuring 8i by 11
inches, with margins of no less than one
inch. Originals shall be printed or type-
written.
(7) 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 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.
(8) Any party who elects to file any
document by electronic transmission
shall be responsible for any delay, dis-
ruption, 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.
(9) The filing date for an electroni-
cally transmitted document shall be the
date the agency clerk receives the com-
plete document.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.105 Appearances.
(1) Counsel or qualified represen-
tatives who file a request for a hearing
involving disputed issues of material
fact with the agency have entered an
appearance in the proceeding and shall
be deemed counsel or qualified repre-
sentative of record.All others who seek
to appear shall file a notice of appear-
ance as soon as possible.
(2) Service on counsel of record or
on a qualified representative shall be
the equivalent of service on the party
represented.
(3) On written motion served on
the party represented and all other
parties of record, the presiding officer
shall grant counsel of record and quali-
fied representatives leave to withdraw
for good cause shown.
(4) A qualified representative who
has filed an initial pleading or notice
of appearance for a party shall be
deemed the qualified representative of
record until the presiding officer makes
the determination required by Rule 28-
106.106.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.106 Who May Appear; Crite-
ria 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 represen-
tative. Counsel means a member of The
Florida Bar or a law student certified
pursuant to Chapter 11 of the Rules
Regulating the Florida Bar.
(2)(a) A party seeking representation
by a qualified representative shall file
a written request with the presiding


officer as soon as practicable. The re-
quest shall identify the name, address
and telephone number of the represen-
tative and shall state that the party is
aware of the services which the repre-
sentative can provide, and is aware that
the party can be represented by an at-
torney at the party's own expense and
has chosen otherwise.
(b) The presiding officer shall as-
sure that the representative is quali-
fied 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 qualifica-
tions.
(c) The presiding officer shall de-
termine the qualifications of the repre-
sentative within a reasonable time af-
ter the request required by paragraph
(a) is filed.
(3) The presiding officer shall au-
thorize the representative to appear if
the presiding officer is satisfied that the
representative has the necessary quali-
fications to responsibly represent the
party's interests in a manner which will
not impair the fairness of the proceed-
ing or the correctness of the action to
be taken.
(4) The presiding officer shall
make a determination of the qualifica-
tions of the representative in light of
the nature of the proceedings and the
applicable law. The presiding officer
shall consider:
(a) The representative's knowl-
edge of jurisdiction;
(b) The representative's knowl-
edge of the Florida Rules of Civil Pro-
cedure relating to discovery in an ad-
ministrative proceeding;
(c) The representative's knowl-
edge regarding the rules of evidence,
including the concept of hearsay in an
administrative proceeding;
(d) The representative's knowl-
edge regarding the factual and legal
issues involved in the proceedings; and
(e) The representative's knowl-
edge of and compliance with the Stan-
dards of Conduct for Qualified Repre-
sentatives, Rule 28-106.107.
(5) If the presiding officer deter-
mines a representative is not qualified,
the reasons for the decision shall be in
writing and included in the record.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.


28-106.107 Standards of Conduct
for Qualified Representatives.
The following standards of conduct
are mandatory for all qualified repre-
sentatives.
(1) A representative shall exercise
due diligence to insure that any motion
or pleading is filed and argued in good
faith.
(2) A representative shall advise
the client to obey the law.
(3) A representative shall not:
(a) Engage in conduct involving
dishonesty, fraud, deceit, or misrepre-
sentation;
(b) Engage in conduct that is
prejudicial to the administration ofjus-
tice;
(c) Handle a matter which the
representative knows or should know
that he or she is not competent to
handle;
(d) Handle a legal or factual mat-
ter without adequate preparation;
(e) Communicate, or cause an-
other to communicate, as to the merits
of the proceeding with the presiding
officer except on the record or in writ-
ing with a copy promptly delivered to
the opposing party; or
(f) Communicate with an adverse
party regarding matters at issue in the
administrative proceeding where the
representative knows that the adverse
party is represented by an attorney or
other qualified representative.
(4) Failure to comply with these
provisions shall authorize the presid-
ing officer to disqualify the represen-
tative appearing in the administrative
proceeding.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.108 Consolidation. If there
are separate matters which involve
similar issues of law or fact, or identi-
cal parties, the matters may be consoli-
dated if it appears that consolidation
would promote the just, speedy, and
inexpensive resolution of the proceed-
ings, and would not unduly prejudice
the rights of a party.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.109 Notice to Interested Par-
ties. If it appears that the determina-
tion of the rights of parties in a pro-
ceeding will necessarily involve a
determination of the substantial inter-
ests of persons who are not parties, the
7










presiding officer may enter an order re-
quiring that the absent person be noti-
fied of the proceeding and be given an
opportunity to be joined as a party of
record.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.110 Service of Papers. Unless
the presiding officer otherwise orders,
every pleading and every other paper
filed in a proceeding, except applica-
tions for witness subpoenas, shall be
served on each party or the party's rep-
resentative at the last address of
record.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.111 Point of Entry into Pro-
ceedings 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 avail-
able, that pursuit of mediation will not
adversely affect the right to adminis-
trative proceedings in the event media-
tion does not result in a settlement.
(2) Unless otherwise provided by
law, persons seeking a hearing on an
agency decision which does or may de-
termine their substantial interests
shall file a petition for hearing or for
mediation with the agency within 21
days of receipt of written notice of the
decision.
(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 appli-
cable deadline. Such requests for exten-
sions of time shall contain a certificate
that the moving party has consulted
with all other parties, if any, concern-
ing the extension and that the agency
and any other parties agree to said ex-
tension. A timely request for extension
of time shall toll the running of the time
period for filing a petition until the re-
quest is acted upon.
(4) Any person who receives writ-
ten notice of an agency decision and
who fails to file a written request for a
hearing or mediation within 21 days
waives the right to request a hearing
or mediation on such matters.
(5) The agency may publish, and
any person who has timely requested
8


mediation may, at the person's own ex-
pense, cause the agency to publish, a
notice of the existence of the mediation
proceeding in the Florida Administra-
tive Weekly or in a newspaper of gen-
eral circulation in the affected area. The
mediation notice can be included in the
notice of intended agency action.
(a) The notice of the mediation
proceeding shall include:
1. A statement that the media-
tion could result in a settlement
adopted by final agency action;
2. A statement that the final ac-
tion arising from mediation may be dif-
ferent from the intended action set forth
in the notice which resulted in a timely
request for mediation;
3. A statement that any person
whose substantial interests may be af-
fected by the outcome of the mediation
shall within 21 days of the notice of
mediation proceeding file a request
with the agency to participate in the
mediation; and
4. An explanation of the proce-
dures for filing such a request.
(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 partici-
pate in the mediation, and that waiver
of participation in the mediation is also
a waiver of that person's ability to chal-
lenge the mediated final agency action
pursuant to Chapter 120, ES.
(6) If mediation does not result in
the settlement of the administrative
dispute, the agency shall, within 7 days
of the conclusion of the mediation, ad-
vise all participants in writing of the
right to request, within 14 days, an
administrative hearing pursuant to
Sections 120.569 and 120.57, F.S.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57, 120.573
FS.
History-New 4-1-97.

PART II HEARINGS INVOLVING DIS-
PUTED ISSUES OF MATERIAL FACT
28-106.201 Initiation of Proceed-
ings.
(1) Unless otherwise provided by
statute, initiation of proceedings shall
be made by written petition to the
agency responsible for rendering final
agency action. The term "petition" in-
cludes any document that requests an
evidentiary proceeding and asserts the


existence of a disputed issue of mate-
rial fact. Each petition shall be legible
and on 8% by 11 inch white paper. Un-
less printed, the impression shall be on
one side of the paper only and lines
shall be doublespaced.
(2) All petitions filed under these
rules shall contain:
(a) The name and address of each
agency affected and each agency's file
or identification number, if known;
(b) The name, address, and tele-
phone number of the petitioner; 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 pro-
ceeding; and an explanation of how the
petitioner's substantial interests will be
affected by the agency determination;
(c) A statement of when and how
the petitioner received notice of the
agency decision;
- (d) A statement of all disputed is-
sues of material fact. If there are none,
the petition must so indicate;
(e) A concise statement of the ul-
timate facts alleged, as well as the rules
and statutes which entitle the peti-
tioner to relief; and
(f) A demand for relief.
(3) Upon receipt of a petition in-
volving disputed issues of material fact,
the agency shall grant or deny the pe-
tition, and if granted shall, unless oth-
erwise provided by law, refer the mat-
ter to the Division of Administrative
Hearings with a request that an admin-
istrative law judge be assigned to con-
duct the hearing. The request shall be
accompanied by a copy of the petition
and a copy of the notice of agency ac-
tion.
(4) A petition may 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 preju-
dice to petitioner's filing a timely
amended petition curing the defect,
unless it conclusively appears from the
face of the petition that the defect can-
not 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 pe-
tition is not granted, and shall state the
deadline for filing an amended petition
if applicable.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.










History-New 4-1-97.
28-106.202Amendment of Petitions.
The petitioner may amend the petition
prior to the designation of the presid-
ing officer by filing and serving an
amended petition in the manner pre-
scribed for filing and serving an origi-
nal petition. The petitioner may amend
the petition 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.
28-106.203Answer. A respondent may
file an answer to the petition.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.204 Motions.
(1) All requests for relief shall be
by motion.All motions shall be in writ-
ing 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.
Written motions will normally be dis-
posed of after the response period has
expired, based on the motion, together
with any supporting or opposing memo-
randa. The presiding officer shall con-
duct such proceedings and enter such
orders as are deemed necessary to dis-
pose of issues raised by the motion.
(2) Unless otherwise provided by
law, motions to dismiss the petition
shall be filed no later than 20 days af-
ter service of the petition on the party.
(3) Motions, 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.
(4) Any party may move for sum-
mary 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 with-
out supporting affidavits. A party mov-
ing for summary final order later than
twelve days before the final hearing
waives any objection to the continuance
of the final hearing.
(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.
28-106.205 Intervention. Persons
other than tne original parties to a
pending proceeding whose substantial
interest may be determined in the pro-
ceeding and who desire to become par-
ties may petition the presiding officer
for leave to intervene. Except for good
cause shown, petitions for leave to in-
tervene must be filed at least 20 days
before the final hearing. The petition
shall conform to Rule 28106.201(2), and
shall include allegations sufficient to
demonstrate that the intervenor is en-
titled to participate in the proceeding
as a matter of constitutional or statu-
tory right or pursuant to agency rule,
or that the substantial interests of the
intervenor are subject to determination
or will be affected through the proceed-
ing. 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.
28-106.206 Discovery. After com-
mencement of a proceeding, parties
may obtain discovery through the
means and in the manner provided in
Rules 1.280 through 1.400, Florida
Rules of Civil Procedure. The presid-
ing officer may issue appropriate orders
to effectuate the purposes of discovery
and to prevent delay, including the im-
position of sanctions in accordance with
the Florida Rules of Civil Procedure,
except contempt.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.207 Venue.
(1) Whenever practicable and per-
mitted by statute or rule, hearings shall
be held in the area of residence of the
non-governmental parties affected by
agency action, or at the place most con-
venient to all parties as determined by
the presiding officer.
(2) Failure to respond timely to
any order requiring or allowing the
parties to suggest an appropriate local-
ity for final hearing may constitute a
waiver of venue.
Specific Authority 120.54(57 FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.208 Notice of Hearing. The


presiding officer shall set the time and
place for all hearings and shall serve
written notice on all parties at their
address of record. No less than 14 days
notice shall be given for the hearing on
the merits of the petition unless other-
wise agreed by the parties or unless
otherwise provided by law.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.209 Prehearing Confer-
ences. At any time after a matter has
been filed with the agency, the presid-
ing officer may direct the parties to con-
fer for the purpose of clarifying and sim-
plifying issues, discussing the
possibilities of settlement, examining
documents and other exhibits, exchang-
ing names and addresses of witnesses,
resolving other procedural matters, and
entering into a prehearing stipulation.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.210 Continuances. The pre-
siding officer may grant a continuance
of a hearing for good cause shown. Ex-
cept in cases of emergency, requests for
continuance must be made at least five
days prior to the date noticed for the
hearing.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.211 Conduct of Proceedings.
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 bi-
furcating the proceeding.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.212 Subpoenas.
(1) Upon the request of any party,
a presiding officer shall issue subpoe-
nas for the attendance of witnesses for
deposition or at the hearing. The re-
questing party shall specify whether
the witness is also requested to bring
documents.
(2) A subpoena may be served by
any person specified by law to serve
process or by any person who is not a
party and who is 18 years of age or
older. Service shall be made by deliver-
ing a copy to the person named in the
subpoena. Proof of service shall be
made by affidavit of the person mak-
9









ing service if not served by a person
specified by law to serve process.
(3) Any motion to quash or limit
the subpoena shall be filed with the
presiding officer and shall state the
grounds relied upon.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.213 Evidence.
(1) Oral evidence shall be taken
only on oath or affirmation.
(2) Each party shall have the right
to impeach any witness regardless of
which party called the witness to tes-
tify.
(3) Hearsay evidence, whether re-
ceived in evidence over objection or not,
may be used to supplement or explain
other evidence, but shall not be suffi-
cient in itself to support a finding un-
less the evidence falls within an excep-
tion to the hearsay rule as found in
Chapter 90, F.S.
(4) The rules of privilege apply to
the same extent as in civil actions un-
der Florida law.
(5) If requested and if the neces-
sary equipment is reasonably available,
testimony may be taken by means of
video teleconference or by telephone.
(a) If a party cross-examining the
witness desires to have the witness re-
view documents or other items not rea-
sonably available for the witness to re-
view at that time, then the party shall
be given a reasonable opportunity to
complete the cross-examination at a
later time or date for the purpose of
making those documents or other items
available to the witness.
(b) For any testimony taken by
means of video teleconference or tele-
phone, a notary public must be physi-
cally present with the witness to admin-
ister the oath. The notary public shall
provide a written certification to be filed
with the presiding officer confirming
the identity of the witness, and confirm-
ing the affirmation or oath by the wit-
ness. 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.
28-106.214 Recordation.
(1) Responsibility for preserving
the testimony at final hearings shall be
that of the agency transmitting the pe-
tition to the Division ofAdministrative
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 cer-
tified court reporter or by recording in-
struments.
(2) No later than 10 days prior to
the final hearing, the agency shall no-
tify the parties of the method by which
the agency will record the testimony at
the final hearing. Any party to a hear-
ing may, at its own expense, provide a
certified court reporter if the agency
does not. The presiding officer may pro-
vide a certified court reporter. At hear-
ings 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 the agency elects to record
the proceeding by videotape, the agency
shall:
(a) Notify the parties as to the
impact the agency's election may have
on the party's ability to preserve a
record for appellate or other subsequent
proceedings;
(b) Use a competent video camera
operator who has been trained in the
techniques of using video camera equip-
ment so as not to disrupt the proceed-
ing and who will not participate in the
proceeding as an agency representative
or as a witness;
(c) Maintain in the record of the
proceeding the original videotape and
an affidavit of accuracy and complete-
ness signed by the person recording the
proceeding; and
(d) Provide a copy of the videotape
to the presiding officer and, upon re-
quest, to all parties, together with an
index specifying the location of the di-
rect and cross-examination of every
witness. Any party requesting a copy
of the videotape and index shall order
the same at its own expense.
(4) If the agency elects to video-
tape the proceeding and a non-agency
party elects to provide a certified court
reporter, the non-agency party shall
notify all other parties no later than 3
business days prior to the hearing. In
such event the transcript provided by
the certified court reporter shall be the
official transcript.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.215 Posthearing Submittals.


All parties may submit proposed find-
ings of fact, conclusions of law, orders,
and memoranda on the issues within a
time designated by the presiding officer.
Unless authorized by the presiding of-
ficer, proposed orders shall be limited
to 40 pages.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History--New 4-1-97.
28-106.216 Entry of Recommended
Order.
(1) If a hearing is conducted by
other than the agency head, or mem-
ber thereof, the presiding officer shall,
within 30 days after the hearing or re-
ceipt of the hearing transcript, which-
ever is later, file a recommended order
which shall include a caption, time and
place of hearing, appearances entered
at the hearing, statement of the issues,
findings of fact and conclusions of law,
separately stated, and recommendation
for final agency action.
(2) By agreeing to a deadline for
filing post-hearing submissions that is
more than 10 days after the conclusion
of the hearing or the filing of the hear-
ing transcript, whichever is later, a
party waives the provisions of subsec-
tion (1) above.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History--New 4-1-97.
28-106.217 Exceptions and Re-
sponses.
(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.
(2) Any party may file responses
to another party's exceptions within 10
days from the date the exceptions were
served.
(3) Notwithstanding Rule 28-
106.103, no additional time shall be
added to the time limits for filing ex-
ceptions 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.

PART III PROCEEDINGSAND HEAR-
INGS NOT INVOLVING DISPUTED
ISSUES OF MATERIAL FACT
28-106.301 Initiation of Proceed-
ings.










(1) Initiation of a proceeding shall
be made by written petition to the
agency responsible for rendering final
agency action. The term "petition" in-
cludes any document which requests a
proceeding. Each petition shall be leg-
ible and on 8 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 doublespaced.
(2) All petitions filed under these
rules shall contain:
(a) The name and address of each
,, agency affected and each agency's file
or identification number, if known;
(b) The name, address, and tele-
phone number of the petitioner; the
C 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 pro-
ceeding; and an explanation of how the
petitioner's substantial interests will be
affected by the agency determination;
(c) A statement of when and how
the petitioner received notice of the
agency decision;
S' (d) A concise statement of the ul-
timate facts alleged, as well as the rules
and statutes which entitle the peti-
j tioner to relief; and
(e) A demand for relief.
(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 in-
volving 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 may 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 preju-
dice to petitioner's filing a timely
amended petition curing the defect,
unless it conclusively appears from the
face of the petition that the defect can-
not 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 pe-
tition is not granted, and shall state the
deadline for filing an amended petition
if applicable.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.


History-New 4-1-97.
28-106.302 Notice of Proceeding.
(1) The agency shall serve written
notice on all parties at their address of
record, allowing at least 14 days from
the date of the notice for the parties to
provide any documents, memorandum
of law, or other written material in sup-
port of or opposition to the agency ac-
tion or refusal to act or in aggravation
or mitigation of any penalty which may
be imposed. If only written evidence is
permitted by the agency, the notice
shall provide that all other parties shall
have 14 days to respond in writing to
that written evidence.
(2) The agency may schedule a
hearing on the matter for the purpose
of taking oral evidence or argument. If
it does so, the agency shall serve writ-
ten notice at least 14 days prior to the
hearing, setting forth the place, date,
and time of the hearing.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.303 Motions.
(1) All requests for relief shall be
by motion. All motions shall be in writ-
ing 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. Written mo-
tions will normally be disposed of after
the response period has expired, based
on the motion, together with any sup-
porting or opposing memoranda. The
presiding officer shall conduct proceed-
ings and enter such orders as are
deemed necessary to dispose of issues
raised by the motion.
(2) Motions, 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.
(3) 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.

28-106.304 Continuances. The pre-
siding officer may grant a continuance
of a hearing for good cause shown. Ex-


cept in cases of emergency, requests for
continuance must be made at least five
days prior to the date noticed for the
hearing.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.305 Conduct of Proceedings.
(1) The presiding officer before
whom a case is pending may issue any
orders necessary to effectuate discov-
ery, to prevent delay, and to promote the
just, speedy, and inexpensive determi-
nation of all aspects of the case, includ-
ing bifurcating the proceeding.
(2) If during the course of the pro-
ceeding a disputed issue of material fact
arises, then, unless waived by all par-
ties, 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.
28-106.306 Recordation.
(1) Responsibility for preserving
the testimony at final hearings shall be
that of the agency responsible for tak-
ing 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 cer-
tified court reporter. At hearings re-
ported by a court reporter, any party
who wishes a transcript of the testi-
mony shall order the same at its own
expense. If a court reporter records the
proceedings, the recordation shall be-
come the official transcript.
(3) If the agency elects to record
the proceeding by videotape, the agency
shall:
(a) Notify the parties that it will
use a video camera rather than a court
reporter to record the proceeding;
(b) Notify the parties as to the
impact the agency's election may have
on the party's ability to preserve a
record for appellate or other subsequent
proceedings;
(c) Use a competent video camera
operator who has been trained in the
techniques of using video camera equip-
ment so as not to disrupt the proceed-
ing and who will not participate in the
proceeding as an agency representative
or as a witness;
(d) Maintain in the record of the
proceeding the original videotape and










an affidavit of accuracy and complete-
ness signed by the person recording the
proceeding; and
(e) Provide a copy of the videotape
to the presiding officer and, upon re-
quest, to all parties, together with an
index specifying the location of the di-
rect and cross-examination of every
witness. Any party requesting a copy
of the videotape and index shall order
the same at its own expense.
(4) If the agency elects to video-
tape the proceeding and a non-agency
party elects to provide a certified court
reporter, the non-agency party shall
notify all other parties no later than
three business days prior to the hear-
ing. In such event the transcript pro-
vided by the certified court reporter
shall be the official transcript.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.
28-106.307 Post-Hearing Submit-
tals. The presiding officer may permit
all parties to submit proposed findings
of fact, conclusions of law, orders, and
memoranda on the issues within a time
designated by the presiding officer.
Unless authorized by the presiding of-
ficer, proposed orders shall be limited
to 40 pages.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57 FS.
History-New 4-1-97.

PART IV MEDIATION
28-106.401 Scope.
This rule applies to all mediation
proceedings conducted pursuant to Sec-
tion 120.573, F.S.
(1) Any time frames may be ex-
tended 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.
Specific Authority 120.54(5) FS. Law
Implemented 120.573 FS.
History-New 4-1-97.
28-106.402 Contents of Request for
Mediation.
The request for mediation shall con-
tain:
(1) The name, address, and tele-
phone number of the person request-
ing mediation and that person's repre-
sentative, if any;
(2) A statement of the preliminary


agency action;
(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.
28-106.403 Allocation of Costs and
Fees. The costs of mediation, includ-
ing the mediator's fees and other shared
costs, shall be split equally or as other-
wise agreed by the parties. The cost
allocation shall be specified in the
agreement to mediate. Mediators shall
be compensated at a rate agreed upon
by the parties and the mediator.
Specific Authority 120.54(5) FS. Law
Implemented 120.573 FS.
History-New 4-1-97.
28-106.404 Contents of Agreement
to Mediate.
The agreement to mediate shall set
forth:
-(1) The names, addresses, and
telephone numbers of any persons who
may attend the mediation;
(2) The name, address, and tele-
phone number of the mediator agreed
to by the parties;
(3) How the costs and fees associ-
ated with mediation will be allocated;
(4) The agreement of the parties
regarding the confidentiality of discus-
sions and documents introduced during
mediation to the extent authorized by
law;
(5) The date, time, and place of the
first mediation session;
(6) The name of the party's repre-
sentative who shall have authority to
settle or recommend settlement; and
(7) The signatures of the parties.
Specific Authority 120.54(5) FS. Law
Implemented 120.573 FS.
History-New 4-1-97.
28-106.405 Standards of Conduct
for Mediators.
(1) Mediators shall adhere to the
highest standards of integrity, impar-
tiality, and professional competence.
(2) On commencement of the me-
diation session, a mediator shall inform
all parties that the process is consen-
sual in nature, that the mediator is an
impartial facilitator, and that the me-
diator may not impose or force any
settlement on the parties.
(3) A mediator shall:
(a) Perform the mediation ser-


vices in a timely and expeditious fash-
ion, avoiding delays wherever possible;
(b) Be impartial and advise all
parties of any circumstances bearing on
possible bias, prejudice, or impartial-
ity; 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 circum-
stances 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 4-1-97.

CHAPTER 28-107
LICENSING
28-107.001 General.
28-107.002 Application for License.
28-107.003 Denial of License.
28-107.004 Suspension, Revocation,
Annulment, or Withdrawal.
28-107.005 Emergency Action.
28-107.001 General. All agency action
regarding licensure shall be governed
by Sections 120.569, 120.57, and
120.60, F.S.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57, 120.60
FS.
History-New 4-1-97.
28-107.002 Application for License.
(1) Unless otherwise provided by
law, the agency shall initiate action on
an application for license in accordance
with the provisions of Section 120.60(1),
F.S.
(2) The agency shall inform the
applicant in writing if it determines the
application is incomplete, and shall
specify why the application is incom-
plete. Upon the return of a completed
application, a supplemental applica-
tion, or the requested information, the
agency shall reinitiate action under the
provisions of Section 120.60(1), F.S.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57, 120.60
FS.










History-New 4-1-97.
28-107.003 Denial of License.
(1) Unless the agency has already
held a hearing on the application for a
license, the agency shall inform the
person submitting an application of the
right to a hearing on the denial of the
application.
(2) The agency shall set forth in
writing the grounds or basis for denial
of a license.
(3) Any hearing on the denial of a
license shall be conducted in accordance
with Sections 120.569, 120.57, or
120.574, F.S., and, unless otherwise
provided by law, the applicant shall
have the burden of establishing entitle-
ment to the license.
S Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57, 120.574,
120.60 FS.
History-New 4-1-97.
28-107.004 Suspension, Revocation,
Annulment, or Withdrawal.
(1) Prior to the entry of a final or-
der to suspend, revoke, annul, or with-
draw a license, the agency shall serve
upon the licensee an administrative
complaint in the manner set out in Sec-
tion 120.60(5), F.S.
(2) The agency shall issue an ad-
S ministrative complaint which shall con-
tain:
(a) The statutory provisions) or
sections) of the Florida Administrative
Code alleged to have been violated,
(b) The facts or conduct relied on
to establish the violation, and
(c) A statement that the licensee
has the right to request a hearing to be
conducted in accordance with Sections
120.569 and 120.57, F.S., to be repre-
sented by counsel or other qualified
representative, to present evidence and
argument, to call and cross-examine
witnesses, and to have subpoena and
subpoena duces tecum issued on his or
her behalf if a hearing is requested.
(3) Requests for hearing filed in
accordance with this rule shall include:
(a) The name and address of the
party making the request, for purposes
of service;
(b) A statement that the party is
requesting a hearing involving disputed
issues of material fact, or a hearing not
involving disputed issues of material
fact; and
(c) A reference to the notice, order
to show cause, administrative com-
plaint, or other communication that the
party has received from the agency.


(4) The agency complaint shall be
considered to be the petition, and the
agency shall have the burden of prov-
ing that grounds exist which warrant
the action proposed to be taken against
the licensee.
(5) Following receipt of a recom-
mended order, the agency attorney or
qualified representative who acts on
behalf of the agency in the conduct of
the hearing will not serve as legal ad-
visor to the agency head during subse-
quent proceedings which result in the
issuance of the final order.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57, 120.60
FS.
History-New 4-1-97.
28-107.005 Emergency Action.
(1) If the agency finds that imme-
diate serious danger to the public
health, safety, or welfare requires emer-
gency action, the agency shall sum-
marily suspend, limit, or restrict a li-
cense.
(2) The 14-day notice requirement
of Section 120.569(2)(b), F.S., does not
apply and shall not be construed to pre-
vent a hearing at the earliest time prac-
ticable upon request of an aggrieved
party.
(3) Unless otherwise provided by
law, within 20 days after emergency
action taken pursuant to paragraph (1)
of this rule, the agency shall initiate a
formal suspension or revocation pro-
ceeding in compliance with Sections
120.569, 120.57, and 120.60, F.S.
Specific Authority 120.54(5) FS. Law
Implemented 120.569, 120.57,
120.60(6) FS.
History-New 4-1-97.

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 Peti-
tion 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 Pro-
cedure. The petition shall include rea-
sons 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 consulta-
tion with the agency clerk of the Ad-


ministration 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 pro-
vide interested persons with the oppor-
tunity 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 4-1-97.
28-108.002 Final Disposition on Pe-
tition for Exception. TheAdministra-
tion Commission shall publish, at the
agency's expense, notice in the next
available edition of the FloridaAdmin-
istrative Weekly of the disposition of
the petition, and shall transmit a copy
of the notice to the Joint Administra-
tive Procedures Committee, the Depart-
ment of State, and any person who re-
quests a copy.
Specific Authority 120.54(5) FS. Law
Implemented 120.54 FS.
History-New 4-1-97.

CHAPTER 28-109
CONDUCTING PROCEEDINGS
BY COMMUNICATIONS MEDIA
TECHNOLOGY
28-109.001 General.
28-109.002 Definitions as Used in this
Rule Chapter.
28-109.003 Application and Construc-
tion.
28-109.004 Government in the Sun-
shine.
28-109.005 Notice.
28-109.006 Evidence, Testimony and
Argument.
28-109.001 General. This chapter
implements the provisions of Section
120.54(5)(b)2., F.S., by providing gen-
eral procedures to be followed when the
agency desires to conduct a proceeding
by means of communications media
technology or to provide public access
to a proceeding by the use of communi-
cations media technology.
Specific Authority 120.54(5) FS. Law
Implemented 120.54(5)(b)2. FS.
History-New 4-1-97.
28-109.002 Definitions as Used in
this Rule Chapter.
(1) "Access point" means a desig-
nated place where a person interested
in attending a communications media
13


_~











technology proceeding may go for the
purpose of attending the proceeding.
(2) "Attend" means having access
to the communications media technol-
ogy network being used to conduct a
proceeding, or being used to take evi-
dence, testimony, or argument relative
to issues being considered at a proceed-
ing.
(3) "Communications media tech-
nology" (CMT) means the electronic
transmission of printed matter, audio,
full-motion video, freeze frame video,
compressed video, and digital video by
any method available.
Specific Authority 120.54(5) FS. Law
Implemented 120.54(5)(b)2. FS.
History-New 4-1-97.
28-109.003 Application and Con-
struction.
(1) The agency may conduct a pro-
ceeding by using CMT and may provide
CMT access to a proceeding for pur-
poses of taking evidence, testimony, or
argument.
(2) A proceeding is not a CMT pro-
ceeding merely because it is broadcast
over a communications network.
Specific Authority 120.54(5) FS. Law
Implemented 120.54(5)(b)2. FS.
History-New 4-1-97.
28-109.004 Government in the Sun-
shine.
(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 provision for the
attendance of any member of the pub-
lic who desires to attend.
(2) No proceeding otherwise sub-
ject to Section 286.011, F.S., shall be
conducted exclusively by means of CMT
if the available technology is insuf-
ficient to permit all interested persons
to attend. If during the course of
a CMT proceeding technical problems
develop with the communications net-
work that prevent interested persons
from attending, the agency may termi-
nate the proceeding until the problems
have been corrected.
Specific Authority 120.54(5) FS. Law
Implemented 120.54(5)(b)2. FS.
History-New 4-1-97.
28-109.005 Notice. When the agency
chooses to conduct a CMT proceeding,
it shall provide notice in the same man-
ner as required for a regular proceed-
ing, except in the case of an emergency
meeting which shall be noticed as pro-
14


vided in Rule 28-102.003, and shall
plainly state that such proceeding is to
be conducted utilizing CMT and iden-
tify the specific type of CMT to be used.
The notice shall describe how inter-
ested persons may attend and shall in-
clude the address or addresses of all
access points, specifically designating
those which are in locations normally
open to the public. If, for example, a
CMT proceeding is to be conducted by
utilizing a telephone conference
hookup, the notice shall so state and
shall provide the address of each access
point where an interested person may
go for the purpose of attending the pro-
ceeding. The notice shall also contain
an address and telephone number
where an interested person may write
or call for additional information and
shall provide an address and desig-
nated person to whom a person may
submit written or other physical evi-
dence which he or she intends to offer
into evidence.
Specific Authority 120.54(10) FS. Law
Implemented 120.53(6) FS.
History-New 4-1-97.
28-109.006 Evidence, Testimony,
and Argument.
(1) Any evidence, testimony, and
argument which is introduced utilizing
CMT shall be afforded equal consider-
ation as if it were introduced by its pro-
ponent in person, but shall be subject
to the same objections as if it were made
in person.
(2) In situations where sworn tes-
timony is required by the agency, per-
sons offering such testimony shall be
responsible for making appropriate ar-
rangements for offering sworn testi-
mony.
Specific Authority 120.54(5) FS. Law
Implemented 120.54(5)(b)2. FS.
History-New 4-1-97.

CHAPTER 28-110
BID PROTESTS
28-110.001 Purpose and Scope.
28-110.002 Definitions.
28-110.003 Notice of Protest.
28-110.004 Formal Written Protest.
28-110.005 Bond.
28-110.001 Purpose and Scope.
(1) This chapter supplements the
statutes on protests that arise from the
contract procurement process under
Chapters 24,255, 287,334 through 349,
Sections 282.303 through 282.313, F.S.,
and other statutes applicable to agen-
cies as defined in Section 120.52(1), FS.


(2) Policies and procedures are
established primarily by Section
120.57(3), F.S.Interested persons must
follow the requirements of those stat-
utes as well as these rules. Other stat-
utes may apply to specific circum-
stances.
Specific Authority 120.54(5)(a), (b) FS.
Law Implemented 120.57(3) FS.
History-New 4-1-97.
28-110.002 Definitions.
For purposes of this subchapter, the
following terms mean:
(1) "Contract procurement pro-
cess" has the same meaning as "con-
tract bidding process" as used in Sec-
tion 120.57(3), F.S. This phrase includes
procurements by invitation to bid (ITB),
request for proposal (RFP), single
source approval and negotiation ap-
proval.
(2) "Decision or intended decision"
means:
(a) The contents of an ITB or an
RFP or other specifications, including
addenda;
(b) A determination that a speci-
fied procurement can be made only
from a single source;
(c) Approval of procurement by
negotiation;
(d) Rejection of a bid or proposal,
or all bids or proposals, or a request to
approve a single source or negotiation;
or
(e) Intention to award a contract
as indicated by a posted bid or proposal
tabulation or other written notice.
(3) For purposes of this chapter,
"electronic transmissions" permitted by
Rule 28-106.104 are limited to facsimile
transmissions which appear legibly on
paper at the place of filing.
Specific Authority 120.54(5)(a), (b) FS.
Law Implemented 120.57(3) FS.
History-New 4-1-97.
28-110.003 Notice of Protest.
(1) A notice of protest shall be ad-
dressed to the office that issued the ITB
or RFP or made any other decision that
is intended to be protested; shall iden-
tify the procurement by number and
title or any other language that will
enable the agency to identify it; and
shall state that the person intends to
protest the decision. If a bond is re-
quired, it should not be filed with the
notice unless otherwise provided by law.
(2) The notice must be actually
received by the agency before the 72-
hour period expires. The notice should
be filed at the place designated by the


_~











procurement solicitation or, if no such
place is designated, the notice should
be filed either with the office that is-
sued the solicitation or with the agency
clerk.
(3) A notice of protest should not
be filed before the 72-hour period be-
gins. The 72-hour period begins upon
receipt of a copy of the ITB or RFP;
when notice of a single source approval
or disapproval or negotiation approval
or disapproval is posted, or otherwise
received if not posted; when a bid or
proposal tabulation is posted; or when
notice is otherwise received if not
posted.
(4) The 72-hour period is not ex-
tended by service of the notice of pro-
test by mail.
Specific Authority 120.54(5)(a), (b) FS.
Law Implemented 120.57(3) FS.
History-New 4-1-97.
28-110.004 Formal Written Protest.
(1) The "formal written protest"
required by Section 120.57(3)(b), F.S.,
is a petition that states with particu-
larity the facts and law upon which the
protest is based, contains the informa-
tion specified in Rule 28-106.201(2),
and is substantially in the form set out
in subsection (2) below. If the formal
written protest is filed in proper form
within the 72-hour period for filing a
notice of protest, the formal written
protest will also constitute the notice
of protest, and all time limits applicable
to a notice of protest are waived and
time limits relative to formal written
protests apply.
(2) Form of Petition.
STATE OF FLORIDA
DEPARTMENT OF
XYZ CORPORATION,
a corporation organized
under the laws of Florida,
Petitioner,
vs. Case No.:
STATE OF FLORIDA
DEPARTMENT OF
Respondent.


PETITION
XYZ Corporation, a corporation orga-
nized under the laws of Florida, brings
this petition against State of Florida
Department of and
alleges:
1. This is a bid protest under Sec-
tion 120.57(3), Florida Statutes.
2. Respondent issued an invita-
tion to bid (ITB) entitled Bid No._ .


3. Petitioner submitted the low
bid but Respondent rejected its bid for
the stated reason that.
4. The stated reason for rejection
is erroneous because.
5. (Additional relevant facts, if
any)
6. The facts that are in dispute
between Petitioner and Respondent
are:
7. A copy of the bid tabulation is
attached.
8. (Applicable points of law.)

Petitioner requests a hearing involv-
ing disputed issues of material fact and
an order awarding the contract to Peti-
tioner (or other relief).

(Note. If the relevant facts are not in
dispute the petition should so allege
and request a hearing not involving
disputed issues of material fact. The
above allegations are illustrative. They
should be altered to suit varying cir-
cumstances).
(3) The time allowed for filing a
petition or a bond is not extended by
mailing either document.
Specific Authority 120.54(5)(a), (b) FS.
Law Implemented 120.57(3) FS.
History-New 4-1-97.
28-110.005 Bond.
(1) Bid protest bonds are required
by Section 287.042(2)(c), F.S., for pro-
curements under Chapter 287 (com-
modities, contractual services, pro-
fessional services and insurance) and
by Section 255.25(3)(c), F.S., for pro-
curements of leases of space in pri-
vately owned buildings. Bonds are not
required for protests involving building
construction projects undertaken pur-
suant to Chapter 255, except that Sec-
tion 255.0516, F.S., authorizes school
boards, community college boards of
trustees and the Board of Regents to
require bonds under some circum-
stances. Bonds are required also by
Section 337.11(5)(a), F.S., for certain
procurements by the Department of
Transportation.
(2) Bonds required by Section
337.11(5)(a), F.S., must be filed with the
notice of protest. Other bonds are not
to be filed with the notice of protest, but
must be filed with the formal written
protest or within the 10-day period al-
lowed for filing the formal written pro-
test. The bond must accompany a pro-
test filed pursuant to Section
24.109(2)(a), F.S. A bond can be in sub-


stantially the following form:
STATE OF FLORIDA
ADMINISTRATION COMMISSION
PROCUREMENT PROTEST BOND
Bond Number:


Contract


Number:


KNOW ALL PERSONS BY
THESE PRESENTS:
That we,
a
(mark one) [ ] corporation, [ ] partner-
ship, [ ] proprietorship, organized and
existing under the laws of the State
of and having
its principal place of business at
as PRINCIPAL;
and a
surety company, organized under the
laws of the State of
and duly autho-
rized to do business in the State of
Florida, whose principal place of busi-
ness is as SURETY,
are held and firmly bound unto the
STATE OF FLORIDA, (Agency), as
OBLIGEE, in the amount of
$ for the payment of which
sum we, as Principal and Surety, bind
ourselves, our heirs, personal represen-
tatives, successors and assigns, jointly
and severally.
THIS BOND is issued under the pro-
visions of Section 287.042(2)(c), Florida
Statutes.The above-named Principal
has initiated an administrative protest
regarding the Obligee's decision or in-
tended decision pertaining to (mark
one) [ ] Bid Number [
] an agency's request for approval of an
exceptional purchase of submit-
ted by

Said protest is conditioned upon the
posting of a bond at the time of filing
the formal written protest.
NOW, THEREFORE, the condition of
this Bond is that if the Principal, after
the administrative hearing process and/
or any appellate court proceedings re-
garding the protest, shall satisfy all
costs and charges allowed by final or-
der and/or judgment, and interest
thereon, in the event the Obligee pre-
vails, then the obligation shall be null
and void; otherwise it shall remain in
full force and effect.
The Obligee may bring an action in a
court of competent jurisdiction on this
bond for the amount of such liability,
including all costs and attorneys' fees.
15











PRINCIPAL:
BY:
Title:
ATTEST:


(CORPORATE SEAL)


SURETY:
BY:
Title: (CORPORATE SEAL)
Florida Resident Agent:

(Note: Power of Attorney showing au-
thority of Surety's agent or Attorney in
Fact must be attached).

Bonds must be countersigned by a
Florida resident agent. Section
287.042(2)(c), F.S., authorizes a


cashier's check or money order in lieu
of a bond, for procurements governed
by Chapter 287, F.S.
(3) When a bond is required, a
notice of decision or intended decision
shall contain this statement: "Failure
to file a protest within the time pre-
scribed in Section 120.57(3), Florida
Statutes, or failure to post the bond or
other security required by law within
the time allowed for filing a bond shall
constitute a waiver of proceedings un-
der Chapter 120, Florida Statutes." If
the notice advises of the bond require-
ment but a bond or statutorily autho-
rized alternate is not posted when re-
quired, the agency shall summarily
dismiss the petition.
(4) If, at the conclusion of the pro-


ceeding and any appellate proceedings,
the petitioner prevails, the agency shall
return the bond, cashier's check or
money order to the petitioner. If the
agency prevails but the petitioner is not
ordered to pay costs, the agency shall
return the bond or alternate security
to the petitioner. If the petitioner is or-
dered to pay costs, the agency shall re-
turn the bond or alternate security as
provided by Sections 255.25(3)(c),
287.042(2Xc) or 337.11(5Xb), F.S. The
entire bond may be forfeited if cir-
cumstances warrant under Section
337.11(5)(a), F.S.
Specific Authority 120.54(5)(a), (b) FS.
Law Implemented 120.57(3),
624.425(1) FS.
History-New 4-1-97.




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