Discussion
of Issues
Issue 1:
Should the Commission propose the repeal of Rules
25-22.017, Rulemaking Proceeding – Adoptions, and 25-22.039, F.A.C.,
Intervention, and the amendment of Rules 25-22.060, Motion for Reconsideration
of Final Orders, and 25-40.001, F.A.C., Exceptions to the Uniform Rules of
Procedure?
Recommendation:
Yes, the Commission should propose the repeal of
Rules 25-22.017 and 25-22.039, F.A.C., and the amendment of Rules 25-22.060 and
25-40.001, F.A.C., as set forth in Attachment A. Staff recommends that the
Commission certify proposed amended Rules 25-22.060 and 25-40.001, F.A.C., as
minor violation rules. Staff also recommends that the Notice of Rulemaking
issued by the Commission should state that in repealing Rule 25-22.039, F.A.C.,
Intervention, and thus becoming subject to Uniform Rule 28-106.205, F.A.C.,
Intervention, it is the Commission’s intent to continue to require intervenors
to take the case as they find it. (Cowdery, Ollila)
Staff
Analysis:
Staff is
recommending the repeal of Rules 25-22.017 and 25-22.039, F.A.C., and the
amendment of Rules 25-22.060 and 25-40.001, F.A.C., as set forth in Attachment
A. Below is staff’s analysis for the recommended rule repeals and amendments.
Repeal of Rule
25-22.017, F.A.C., Rulemaking Proceeding – Adoption
Section (1) of Rule 25-22.017,
F.A.C., states that the Commission, at a public meeting, shall consider the
record, the proposed rule, timely exceptions to the presiding officer’s final
recommended version, if permitted, and the recommendation of the presiding
officer, and may question staff and other persons as part of its deliberations
prior to adopting, rejecting or modifying the proposed rule. The Commission
follows the detailed adoption procedures set forth in Section 120.54(3), F.S. Section 120.54(3)(c), F.S., addresses the
procedures to be followed in the event a hearing is requested on a proposed
rule. Rulemaking proceedings are
governed solely by the provisions of Section 120.54(3)(c), F.S., unless a
separate proceeding is convened under Sections 120.569 and 120.57, F.S. Staff believes
that Rule 25-22.017, F.A.C., is unnecessary to implementation of Section
120.54(3), F.S.
Section (2) of Rule 25-22.017,
F.A.C., explains that oral argument and petitions for reconsideration are not
appropriate to the rulemaking process, but that any interested person may file
a petition for initiation of rulemaking proceedings pursuant to Rule
28-103.006, F.A.C., Rulemaking, to amend or otherwise modify an adopted rule or
amendment. A statement that oral
argument is not appropriate in rulemaking is unnecessary because paragraph
(7)(a) of the Commission’s Oral Argument Rule states that oral argument at an
Agenda Conference is limited to recommended orders and dispositive motions,
which would not include rulemaking orders. In
addition, as discussed in detail below, the language in Section (2) concerning
reconsideration in rulemaking should be moved to the Commission’s motion for
reconsideration rule, Rule 25-22.060, F.A.C., so that it is consolidated with
other rule provisions relating to motions for reconsideration.
Finally, the statement in Section
(2) that a petition to initiate rulemaking is filed pursuant to Uniform Rule
28-103.006, F.A.C., is obsolete because Uniform Rule Chapter 28-103, F.A.C.,
was repealed December 4, 2012. For the reasons explained above, staff
recommends that the Commission propose the repeal of Rule 25-22.017, F.A.C., as
set forth in Attachment A.
Repeal of Rule
25-22.039, F.A.C., Intervention
As discussed below, staff is
recommending the repeal of its exception to the Uniform Rule on Intervention, Rule
25-22.039, F.A.C. If the Commission’s intervention rule is repealed, the
Commission would follow the Uniform Rule on Intervention, Rule 28-106.205,
F.A.C.
The Commission’s Intervention Rule
The Commission’s intervention
rule, Rule 25-22.039, F.A.C., states as follows:
Persons, other than
the original parties to a pending proceeding, who have a substantial interest
in the proceeding, and who desire to become parties may petition the presiding
officer for leave to intervene. Petitions for leave to intervene must be filed
at least five (5) days before the final hearing, must conform with Uniform
subsection 28-106.201(2), F.A.C., and must include allegations sufficient to
demonstrate that the intervenor is entitle to participate in the proceeding as
a matter of constitutional or statutory right or pursuant to Commission rule,
or that the substantial interests of the intervenor are subject to
determination or will be affected through the proceeding. Intervenors take the case as they find it.
Section (2) of Uniform Rule
28-106.201, F.A.C., Initiation of Proceedings, referenced in the Commission’s
intervention rule, states as follows:
(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, any e-mail address, any 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) A statement of
when and how the petitioner received notice of the agency decision;
(d) A statement of
all disputed issues of material fact. If there are none, the petition must so
indicate;
(e) A concise statement
of the ultimate facts alleged, including the specific facts the petitioner
contends warrant reversal of modification of the agency’s proposed action;
(f) A statement of
the relief sought by the petitioner, stating precisely the action petitioner
wishes the agency to take with respect to the agency’s proposed action.
The Uniform Rule on Intervention
The Uniform Rule on Intervention,
Rule 28-106.205, F.A.C., (Attachment B) states:
(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 the presiding officer for leave to
intervene. Except for good cause shown,
motions for leave to intervene must be filed at least 20 days before the final
hearing unless otherwise provided by law.
The parties may, within 7 days of service of the motion, 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,
address, e-mail address, telephone number, and any facsimile number of the
intervener, if the intervener is not represented by an attorney or qualified
representative; 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); 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.
Section (3) of
Uniform Rule 28-106.204, Motions, F.A.C., referenced in the Uniform Rule on Intervention,
states:
(3) All 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. 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.
Comments from FPL, TECO, DEF, and Gulf
FPL filed comments on the
proposed repeal of the Commission’s intervention rule, Rule 25-22.039, F.A.C.,
stating that, for the most part, it concurs that the procedure for intervening
in administrative proceedings is adequately covered by Uniform Rule on Intervention. However, FPL wants to preserve the “take the
case as they find it” principle as essential for the expeditious and efficient
prosecution of complex matters before the Commission. FPL states that deleting the sentence that
intervenors take the case as they find it would make it unclear whether future
intervenors would be required to take cases as they find them; that parties
would have to argue whether or not prior Commission precedent remains viable;
and Commission proceedings could be unnecessarily convoluted and delayed by
intervenors seeking to interject last-minute changes to the substantive issues
and/or agreed procedures for this resolution.
FPL offered two possible
solutions to address its concern. FPL’s first choice would be for the
Commission to amend the Commission’s intervention rule to state: “Intervention
in pending proceedings shall be governed by Rule 28-106.205, F.A.C. Intervenors
take the case as they find it.”
Alternatively, FPL suggested that the final order approving the repeal
should state clearly that future intervenors will continue to take cases as
they find them. DEF, TECO, and Gulf all filed letters in agreement with the
comments filed by FPL.
Discussion
The maxim that intervenors take
the case as they find it is preserved in the Uniform Rule on Intervention. Administrative
and court decisions since enactment of the Uniform Rules show this to be the
case. The phrase “take the case as they find it” generally means that the
rights of the intervenor are subordinate to and dependent on the principal
issues raised by the original parties to an action, and the intervening party
is limited to litigating only its interest as affected by the principal issues.
The Florida Supreme Court stated that the Commission’s intervention rule requirement
that intervenors take the case as they find it is similar to Florida Rules of
Civil Procedure Rule 1.230, Intervention, stating:
“Anyone claiming an
interest in pending litigation may at any time be permitted to assert a right
by intervention, but the intervention shall be in subordination to, and in
recognition of, the propriety of the main proceeding, unless otherwise ordered
by the court in its discretion.” Fla. R. Civ. P. 1230. See Coast Cities Coaches,
Inc. v. Dade County, 178 So. 2d 703, 706 (Fla. 1965)(“it is settled law,
however, that an intervening defendant is bound by the record made at the time he
intervenes and must take the suit as he finds it unless the court, in its
discretion, otherwise orders”).
Panda Energy International v. Jacobs, 813 So. 2d 46, 50 fn. 4 (Fla.
2002). See also State Trust Realty, LLC
v. Deutcshe Bank National Trust Company Americas, 207 So. 3d 923, 925-26
(Fla. 4th DCA 2016)(stating that Fla. R. Civ. Pro. 1.230 has consistently been
interpreted to mean that interveners are bound by the record made at the time they
intervene and must take the suit as they find it).
The principle that intervenors
must take the case as they find it applies in administrative proceedings under
both the Commission’s intervention rule and the Uniform Rule on Intervention.
In Humana of
Florida, Inc. v. Department of Health and Rehabilitative Services, 500 So. 2d 186, 188 (Fla. 1st DCA 1986), rev. denied, 506 So. 2d 1041 (Fla. 1987),
the Florida Supreme Court found that an intervenor in a formal administrative proceeding before the
Division of Administrative Hearings joined the proceeding subject to the action
of the original petitioner. See also Environmental Confederation of Southwest Florida, Inc. v. IMC
Phosphates, Inc., 857 So. 2d 207, 210-11 (Fla. 1st DCA 2003) (relying on Humana
in recognizing the applicability in administrative proceedings of the
Fla. R. Civ. Pro. 1.230 principle that an intervenor’s rights are subordinate
to the parties’ rights), and Broward Children’s Center, Inc. v. Plantation
Nursing and Rehabilitation Center, 66 So. 3d 1063, 1064 (Fla. 1st DCA 2011).
The Department of Environmental
Regulation (DEP), in addressing intervention requested in an administrative
hearing under the Uniform Rule on Intervention, stated:
Case law
is clear, that when the ALJ
allowed intervention, the MACLA Intervenors' rights were subordinate to the propriety of the
main proceeding and they were bound by the issues and matters in the record and
by the pleadings as they existed at the time of intervention. See, e.g., Riviera Club v. Belle Mead
Development Corp., 141 Fla. 538, 194 So. 783, 784 (Fla. 1940)(reflecting
that intervention is a well founded principle of law and that the courts “have
always striven to maintain the integrity of the issues raised by the original
pleadings, and to keep newly admitted parties within the scope of the original
suit.”) [also citing Environmental
Confederation and Humana]
Sherry
et al. v. Okaloosa Co. et al., Consolidated Final Order, issued August
29, 2011, 2011 WL 4350413 (Fla. Dept. Env. Prot). DEP specified that the issues
that intervenors were allowed to argue can be limited by the Administrative Law
Judge under the Uniform Rule on Intervention “and in accordance with applicable intervention case
law.” Id. at *12. Thus, even though neither Fla. R. Civ. P. 1.230 nor the
Uniform Rule on Intervention specifically state that an intervenor must “take
the case as it finds it,” that principle is applied in administrative cases by
Administrative Law Judges and the courts by requiring that intervention be in
subordination to, and in recognition of, the propriety of the main proceeding,
subject to the discretion of the judge or presiding officer. Staff believes
that the law is clear that intervenors take the case as they find it under the
Uniform Rule on Intervention. However, staff
believes that for purposes of clarity, the Notice of Rulemaking should state
that in repealing Rule 25-22.039, F.A.C., Intervention, and thus becoming
subject
to Uniform Rule 28-106.205, F.A.C., Intervention, it is the Commission’s intent
to continue to require intervenors to take the case as they find it.
Unlike the Uniform Rule on Intervention,
the Commission’s intervention rule does not specify that the presiding officer
may impose terms and conditions on the intervenor to limit prejudice to other
parties. However, this provision of the Uniform Rule would merely codify
existing agency practice because Commission prehearing officers routinely
exercise their discretion to impose terms and conditions on intervenors. In Panda, for example, the Commission
prehearing officer denied the intervenor’s request to extend the discovery
cutoff date by one day, allowed the intervenor to take the depositions it
requested, and required the utility to provide immediate access to all
confidential information. On appeal, the Florida Supreme Court held that the
discovery limitations placed on the intervenor by the Commission were not an
abuse of discretion. Panda, 813 So. 2d at 50. Commission
prehearing officer orders granting intervention routinely state that the
intervenor takes the case as it finds it. If a motion to intervene is filed and
granted after the Order Establishing Procedure has been issued, an intervenor
must, like any other party, file a motion with the prehearing officer to
request any changes to the scheduled dates.
These principles will not change under the Uniform Rule on Intervention.
Adopting the Uniform Rule as the
intervention rule for the Commission is advantageous in that the requirements
for what must be alleged in a motion to intervene are specifically intended to
apply to motions to intervene. The Commission’s intervention rule, on the other
hand, requires petitions to intervene to conform with Uniform Rule Section
28-106.201(2), F.A.C., which applies to parties filing a petition to challenge
final agency action and is not specifically meant for motions to intervene. The
Commission’s intervention rule requires petitions to intervene to include
allegations sufficient to demonstrate that the intervenor is entitled to
participate in the proceedings. This requirement will not change because the
same language is in the Uniform Rule on Intervention.
Section (3) of the Uniform Rule
on Intervention states that 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. The Commission
does not have a similar rule provision. The Section (3) Uniform Rule provision
is beneficial to parties and the Commission because it saves resources by
allowing specifically-named persons whose substantial interests are being
determined to become a party by filing a fairly simple notice of appearance
instead of a much more involved petition to intervene.
For the reasons explained above,
staff recommends that the Commission propose the repeal of the Commission’s
intervention rule, Rule 25-22.039, F.A.C., as set forth in Attachment A. Staff further recommends that the Notice of
Rulemaking should state that in repealing Rule 25-22.039, F.A.C., Intervention,
and thus becoming subject to Uniform Rule 28-106.205, F.A.C., Intervention, it is the
Commission’s intent to continue to require intervenors to take the case as they
find it.
Amendment of Rule
25-22.060, F.A.C., Motion for Reconsideration of Final Orders
Staff is recommending that the
Commission propose the amendment of Rule 25-22.060, F.A.C., to delete paragraph
(1)(e), which states:
A motion for
reconsideration of an order adopting, repealing, or amending a rule shall be
treated by the Commission as a petition to adopt, repeal, or amend a rule under
Section 120.54(7), F.S. and Rule 28-103.106, F.A.C.
Unlike the other provisions of
Rule 25-22.060, F.A.C., paragraph (1)(e) specifically addresses rulemaking
procedure. The Commission’s Petition and the Administration Commission’s 1998
final order that granted an exception for Rule 25-22.060, F.A.C., did not
specifically address paragraph (1)(e). Reference in paragraph (1)(e) to Uniform
Rule 28-103.106, F.A.C., is obsolete because, as previously stated, Uniform
Rule Chapter 28-103, F.A.C., is repealed.
The apparent purpose of paragraph
(1)(e) is to recognize that a motion for reconsideration is not appropriate in
rulemaking under Section 120.54, F.S., and, further, to treat a motion for
reconsideration of a rule adoption, repeal, or amendment as a petition to
initiate rulemaking under Section 120.54(7), F.S. Section 120.54(7), F.S., gives the specific
requirements for a person to petition an agency to adopt, amend, or repeal a
rule. There does not appear to be any benefit to treating a motion for
reconsideration of a rule adoption, repeal, or amendment as a petition to
initiate rulemaking. If a person were to file such a motion for reconsideration,
it would be denied as unauthorized under Section 120.54, F.S.,
but that denial would not interfere with the person’s ability to file a Section
120.54(7), F.S., petition to initiate rulemaking. For these reasons, staff
believes paragraph (1)(e) of the Commission’s Motion for Reconsideration of
Final Orders rule should be deleted.
In addition, as explained above,
staff believes that the provision of Section (2) in Rule 25-22.017, F.A.C.,
that states that reconsideration is not appropriate in rulemaking, should be
updated and, because its subject matter is reconsideration, it should be moved
to Rule 25-22.060, F.A.C. For the reasons explained above, staff recommends
that the Commission propose the amendment of Rule 25-22.060, F.A.C., Motion for
Reconsideration of Final Orders, as set forth in Attachment A.
Amendment of Rule
25-40.001, F.A.C., Exceptions to the Uniform Rules of Procedure
As discussed in the Case Background, Rule 25-40.001,
F.A.C., identifies in table format the Commission rules that are exceptions to
the Uniform Rules. As previously explained, Uniform Rule Chapter 28-103, F.A.C.,
is repealed. Likewise, Uniform Rule Chapter
28-107, Licensing, F.A.C., was repealed on January 15, 2007. These two Uniform
Rule chapters should thus be deleted from Rule 25-40.001, F.A.C. Additionally, if the Commission proposes the
repeal of the Commission’s intervention rule, Rule 25-22.039, F.A.C., it should
be deleted from the list of the Commission’s exceptions to the Uniform Rules. Finally,
the title of Rule 25-22.060, F.A.C., should be amended to state the rule’s
complete title: Motion for Reconsideration of Final Orders. For these reasons,
staff recommends that the Commission should propose the amendment of Rule
25-40.001, F.A.C., as set forth in Attachment A.
Statement of Estimated
Regulatory Costs
Pursuant to Section 120.54(3)(b)1.,
F.S., agencies are encouraged to prepare a statement of estimated regulatory
costs (SERC) before the adoption, amendment, or repeal of any rule. A SERC was prepared for this rulemaking and
is appended as Attachment C. As required
by Section 120.541(2)(a), F.S., the SERC analysis includes whether the rule repeals
and amendments are likely to have an adverse impact on economic growth, private
sector job creation or employment, or private sector investment in excess of $1
million in the aggregate within five years after implementation. None of the
impact cost/criteria established will be exceeded as a result of the
recommended revisions.
The SERC concludes that the rule repeals
and amendments will likely not directly or indirectly increase regulatory costs
in excess of $200,000 in the aggregate in Florida within one year after implementation.
Further, the SERC concludes that the rule repeals and amendments will not
likely increase regulatory costs, including any transactional costs or have an
adverse impact on business competitiveness, productivity, or innovation in
excess of $1 million in the aggregate within five years of implementation.
Thus, the rule repeals and amendments do not require legislative ratification
pursuant to Section 120.541(3), F.S. In
addition, the SERC states that the rule repeals and amendments would not have
an adverse impact on small businesses, would have no implementation or
enforcement cost on the Commission or any other state and local government
entity, and would have no impact on small cities or small counties.
Minor Violation Rules Certification
Pursuant to Section 120.695, F.S., beginning July 1, 2017,
for each rule filed for adoption, the Commission is required to certify whether
any part of the rule is designated as a rule the violation of which would be a
minor violation. A list of the Commission rules designated as minor violation
rules is published on the Commission’s website, as required by Section
120.695(2), F.S. Currently, Rules 25-22.017, 25-22.039, 25-22.060, and
25-40.001, F.A.C., are on the Commission’s list of rules designated as minor
violations. If the Commission proposes the repeal of Rules 25-22.017 and
25-22.039, F.A.C., once the repeals become effective, these rules should be
deleted from the Commission’s published list of minor violation rules.
If the Commission proposes the amendment of Rules
25-22.060 and 25-40.001, F.A.C., the rules would continue to be considered
minor violation rules. Therefore, for purposes of filing the amended rules for
adoption with the Department of State, staff recommends that the Commission
certify proposed amended Rules 25-22.060 and 25-40.001, F.A.C., as minor
violation rules.
Conclusion
For the
reasons described above, staff recommends that the Commission should propose the
repeal of Rules 25-22.017 and 25-22.039, F.A.C., and the amendment of Rules 25-22.060
and 25-40.001, F.A.C., as set forth in Attachment A. Staff recommends that the
Commission certify the proposed amended Rules 25-22.060 and 25-40.001, F.A.C.,
as minor violation rules. Staff also recommends that the Notice of Rulemaking
should state that in repealing Rule 25-22.039, F.A.C., Intervention, and thus
becoming subject to Uniform Rule 28-106.205, F.A.C., Intervention, it is the
Commission’s intent to continue to require intervenors to take the case as they
find it.
Issue 2:
Should this docket be closed?
Recommendation:
Yes. If no
requests for hearing or comments are filed the rules should be filed with the
Department of State, and the docket should be closed. (Cowdery)
Staff Analysis:
If no requests for hearing or comments are filed by
affected persons, the rules should be filed with the Department of State, and
the docket should be closed.
