A d m i n i s t r a t i v e L a w S e c t i o n

Vol. XXXIX, No. 3 JowannaNewsletter N. Oates and Elizabeth W. McArthur, Co-Editors March 2018 The Use of the Florida Evidence Code in Administrative Hearings in Light of Florida Industrial Power Users Group v. Graham by Bruce Culpepper, Administrative Law Judge, Division of Administrative Hearings

In January 2017, the Florida in section 90.616, Florida Statutes. the Supreme Court ruled that the Supreme Court issued its decision The Commission asserted that it Commission had the “discretion” to in Florida Industrial Power Users had the discretion not to enforce the refuse to apply a rule of evidence in Group v. Graham, 209 So. 3d 1142 Rule, regardless of the fact that it its administrative proceeding. (Fla. 2017) (“Florida Industrial”). In is an established rule of evidence in So, what is this “discretion” busi- this case, the Supreme Court con- Florida civil and criminal courts. ness the Supreme Court imparts? sidered the Florida Public Service The Supreme Court agreed with Florida Industrial confirms that the Commission’s (“Commission”) deci- the Commission and specifically Florida Evidence Code does not apply sion not to apply the rule of witness found that “the Florida Evidence to administrative proceedings. We sequestration (“Rule”) in an admin- Code is not applicable to adminis- knew that. (Ironically, for a process istrative hearing. The Rule is found trative proceedings.” Accordingly, See “Florida Evidence Code” page 23

From the Chair by Robert Hosay

I would like to shine a spotlight professionals for these two inaugural on the Administrative Law Section’s awards now and in the future. The INSIDE: establishment of two awards to rec- two awards are the S. Curtis Kiser ognize and memorialize preeminent Administrative Lawyer of the Year Appellate Case Notes...... 3 professionals that work tirelessly in Award and the Administrative Law DOAH Case Notes...... 9 our field of administrative law. Estab- Section Outstanding Service Award. Constitutional Revision Commission lishing these awards is long overdue The S. Curtis Kiser Administra- Administrative Law Update...... 14 and of great importance to substan- tive Lawyer of the Year Award is Agency Snapshot: Agency for State tiate the significance of the profes- named after Senator S. Curtis Kiser, Technology...... 18 sionals working in administrative a 1967 graduate of the University Law School Liaison law. You will not be surprised by who of Iowa and a 1970 graduate of the Spring 2018 Update from the Florida State provided the muscle and the work in Florida State University College of University College of Law...... 19 the trenches to get this project com- Law. Senator Kiser has a long and Administrative Law Section Membership pleted. Thank you, Jowanna N. Oates! distinguished career in public service Application (Attorney)...... 22 I look forward to nominating qualified See “From the Chair,” next page Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

FROM THE CHAIR Administrative Law Section execu- effective manner. Browse the website from page 1 tive council (other than the chair) to access our respected ALS newslet- who has provided outstanding leader- ter, learn about our section and mem- to the State of Florida. His public ser- ship for the Section. bership, and access resources helpful vice includes: State Representative It’s live! With great excitement to anyone working in our profession. (1972-1982); Senator (1984-1994); I invite you to visit the new and A huge thank you to hard work- Public Service Commission Nomi- improved Administrative Law Sec- ing ALS executive council member nating Council (1978-1994); General tion (ALS) website at http://flaadmin- Tabitha G. Harnage for organizing Counsel for the Public Service Com- law.org/. The technology committee, and supporting our most recent ALS mission; and Commissioner, Public headed by Paul Drake, worked dili- social events. Tabitha was able to Employees Relations Commission. gently over the past year to develop organize a fun and passionate group During Senator Kiser’s legislative a format and a plan for content that to participate in the Tallahassee service, he was the prime sponsor of supports the purpose and mission Bar Association’s 22nd Annual Chili legislation that established the Flor- of the Administrative Law Section. Cook-Off. Thank you team ALS for ida Evidence Code and the Adminis- In addition to Paul, I’d like to spe- representing us well at this event! trative Procedure Act. The S. Curtis cifically highlight the hard work of I hope by reading this column you Kiser Administrative Lawyer of the James Ross, Tabitha Harnage, Judge have gained a more significant appre- Year Award will be presented to a Gar Chisenhall, and Judge Suzanne ciation for some of the hard work member of The Florida Bar who has Van Wyk for their dedicated and per- performed by so many of our section made significant contributions to the sistent work to publish a website members. Please do not hesitate to field of administrative law in Florida. that will serve our profession, our contact me if you would like to get The Administrative Law Section members, and the public very well. involved. The professional value and Outstanding Service Award will The updated website provides perti- meaningful relationships will last be presented to a member of the nent information in an efficient and your entire career.

Visit the Administrative Law Section’s Website: http://www.flaadminlaw.org

This newsletter is prepared and published by the Administrative Law Section of The Florida Bar.

Robert H. Hosay ([email protected])...... Chair Garnett W. Chisenhall, Jr. ([email protected])...... Chair-elect Brian A. Newman ([email protected])...... Secretary Bruce D. Lamb ([email protected])...... Treasurer Elizabeth W. McArthur ([email protected])...... Co-Editor Jowanna N. Oates ([email protected])...... Immediate Past Chair and Co-Editor Calbrail L. Banner, Tallahassee ([email protected])...... Program Administrator Colleen P. Bellia, Tallahassee...... Layout

Statements or expressions of opinion or comments appearing herein are those of the contributors and not of The Florida Bar or the Section.

2 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

APPELLATE CASE NOTES

by April A. Caminez-Bentley, Tara Price, Gigi Rollini, and Larry Sellers

Formal Administrative Hear- If the Board determines on remand the basis that DOH lacks authority ing—Waiver of Right that Ms. Campbell did not waive her to accept a letter of intent (LOI) to 233 So. 3d 488 (Fla. 1st DCA 2017). right to a formal hearing, the court apply for approval to operate a new directed that the case proceed to the trauma center in a Trauma Service Denise Campbell worked at an Division of Administrative Hearings. Area (TSA) that has no trauma cen- assisted living facility and found one If the Board determines that she did ter position available (and therefore of the facility’s patients in the din- waive her right, the court concluded no need), or to allow a provisional ing hall unresponsive. Ms. Campbell that the Board could penalize Ms. trauma center to operate during the ordered the staff to place the patient Campbell via an informal hearing. pendency of an administrative chal- in his bed so that he could receive Next, the court addressed the lenge to the provisional approval of CPR, but CPR was not performed issue of the Board’s revocation of the application. after it was discovered that the Ms. Campbell’s license. Ms. Camp- The court reversed on the basis patient had a “Do Not Resuscitate” bell argued that the Board lacked that Bayfront failed to prove its order on file. The patient died. Ms. competent substantial evidence to entitlement to temporary injunction Campbell inaccurately reported that find aggravating factors sufficient relief. the patient was found unresponsive to impose the penalty of revocation. Regarding the required substan- in his bed, not in the dining hall. However, the court found that the tial likelihood of success element, the The Department of Health (DOH) permissible penalty range for falsify- court concluded that there is no need filed an administrative complaint ing patient records—with or without criterion at or before the provisional against Ms. Campbell, alleging that aggravating factors—included license review stage. As a result, the statute she (1) inaccurately recorded the revocation. The court was thus unable does not require or permit DOH to event; and (2) falsified or altered to reverse the Board’s penalty based consider need until the onsite review the patient’s records. The complaint on the argument presented in Ms. stage of the application process. Bay- included an election-of-rights form, Campbell’s appeal, but reversed and front therefore failed to prove sub- notifying Ms. Campbell that she had remanded the case for the Board to stantial likelihood of success on its 21 days to request a formal adminis- conduct an evidentiary hearing on claim that DOH lacks authority to trative hearing. DOH believed that whether she waived her right to a accept a LOI to apply for approval to Ms. Campbell did not respond. formal administrative hearing. operate a new trauma center in a TSA Ms. Campbell’s attorney submitted when the TSA has no need. an affidavit stating that he person- The court also rejected Bayfront’s ally hand-delivered a request for a Injunctions—Preservation of interpretation that Northside can- formal hearing within 21 days. DOH Entitlement to Injunctive Relief not begin operations as a provisional also filed an affidavit stating that Dep’t of Health v. Bayfront HMA Med. trauma center until the conclusion the Board of Nursing (Board) never Ctr., 43 Fla. L. Weekly D96 (Fla. 1st of all administrative proceedings. received a request for a formal hear- DCA Jan. 2, 2018). Section 395.4035, Florida Statutes, ing. At DOH’s request, the Board allows any hospital that submitted concluded that Ms. Campbell waived The Department of Health (DOH) an application found acceptable by her right to a formal administra- and Galencare, Inc. d/b/a Northside DOH based on a provisional review tive hearing. The Board then held an Hospital (Northside) appealed a non- to be eligible to operate as a provi- informal hearing. It issued a Final final order enjoining Northside from sional trauma center. While the stat- Order concluding that Ms. Campbell operating a provisional trauma cen- ute also provides that a hospital that acted improperly, but increased the ter and enjoining DOH from allowing wishes to protest a decision made by recommended penalty from proba- Northside to operate one prior to the DOH based on its review of applica- tion and a fine to the revocation of conclusion of any timely-filed admin- tions or on the recommendations of her license. Ms. Campbell appealed istrative proceeding challenging any the site visit review team may do so the Board’s Final Order based on preliminary approval of Northside’s under chapter 120, such provisions do the determination that she waived application and any subsequent not state what effect an administra- her right to a formal administrative judicial review. The injunction order tive challenge has on a provisional hearing and the increased penalty. was issued by the trial court after a trauma center beginning operation. The court held that the Board was temporary injunction was sought by A stay on a provisional trauma cen- required to give Ms. Campbell an Bayfront HMA Medical Center, LLC ter’s operations, on the other hand, evidentiary hearing on whether she d/b/a Bayfront Health (Bayfront). would affect the statutory timeline timely requested a formal hearing. Bayfront sought the injunction on continued...

3 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

APPELLATE CASE NOTES recover under an insurance policy is ger), but rejected the legal conclusion from page 3 freely assignable after loss.” that it would be an abuse of discretion Security First also argued that to deny the exemption, concluding OIR’s Final Order should be reversed that DCF had discretion to deny the and could endanger the viability of due to numerous public policy con- exemption anyway. Without articulat- the provisional trauma center, which cerns, particularly the vested rights ing a clear rationale for the decision, would be forced to sit idly while any of other parties who Security First DCF denied the exemption. administrative proceeding concludes. asserted should have “an equal voice The Fourth District Court of Appeal The court concluded that the statute in such assignments to prevent recognized that to reject an ALJ’s con- did not support the assertion that a impairing their interests.” Security clusion of law, “the agency . . . must challenge requires the provisional First also expressed concern that make a finding that its substituted trauma center’s operations to be the assignment of less than all conclusion of law . . . is as or more rea- stayed pending that challenge. rights would allow an assignor and sonable than that which was rejected an assignee to enter split causes of or modified” under section 120.57(1)(l), action suing the obligor. But the court Florida Statutes. The court found that Insurance—Disapproval of Pro- concluded that these public policy DCF’s adoption of the ALJ’s factual posed Endorsements concerns were for the Legislature, findings of rehabilitation and not pre- Sec. First Ins. Co. v. Fla. Office of Ins. and not the judiciary, to resolve. Thus, senting a danger conflicted with, and Regulation, 232 So. 3d 1157 (Fla. 5th the court affirmed OIR’s Final Order. could not be supported by, the legal DCA 2017). conclusion that the exemption could nonetheless be denied. Security First Insurance Com- Licensing—Agency Discretion to The court stated that section pany (Security First) submitted to Deny Exemptions for Disqualify- 435.07(3)(a), Florida Statutes, autho- the Office of Insurance Regulation ing Criminal Offenses rizes the Secretary, in articulating (OIR) policy endorsements to the con- A.P. v. Dep’t of Children & Families, the decision to reject the ALJ’s rec- ditions section for its homeowners, 230 So. 3d 3 (Fla. 4th DCA 2017). ommendation, to consider several tenant homeowners, condominium enumerated factors as to whether unit owners, and dwelling fire insur- This appeal was brought by a an applicant presents a danger if his ance policies, for OIR’s approval. The licensed mental health counselor employment were allowed. Because new language would have restricted in Florida, practicing since 1991, the Secretary did not consider these policyholders’ ability to assign post- who was disqualified in 1998 from factors or state that he relied on any loss benefits without having the being able to work with children and rationale other than the “nature” of consent of all insureds, additional vulnerable adults under Florida’s Appellant’s underlying offense, the insureds, and mortgagees named in Level 2 employment screening stan- court reversed and remanded the the policies. dards after exposing himself to an matter to DCF for a decision consis- OIR disapproved Security First’s undercover officer in a public park tent with the court’s opinion and with proposed endorsements because it and pleading no contest to a misde- the ALJ’s findings already adopted by concluded they violated the intent meanor. Appellant sought an exemp- DCF. and meaning of section 627.411(a), tion from this disqualification because (b), and (e), Florida Statutes, and he wanted to open an intensive outpa- unlawfully restricted the assignment tient substance abuse program. Mandamus Relief—Sufficiency of post-loss benefits. Security First After the Department of Children of Allegations Within Complaint requested administrative review, and and Families (DCF) denied Appel- S.J. v. Thomas, 233 So. 3d 490 (Fla. the hearing officer issued a report lant’s request, he sought review 1st DCA 2017). and recommendations, upholding through an administrative hearing OIR’s decision. OIR issued a Final pursuant to section 435.07(3)(c), S.J. alleged that the Superinten- Order adopting the report and recom- Florida Statutes. The ALJ issued a dent removed him from his traditional mendations. Security First appealed. recommended order, which included high school through a process called On appeal, Security First argued a finding of fact that Appellant was “disciplinary reassignment,” and that although a policy endorsement rehabilitated and that he no longer required him to finish the school year could not require consent from an presents a danger if employed in a at either an alternative school or a vir- insurer to authorize the assignment position of special trust caring for tual school. S.J. requested a hearing, of post-loss benefits, the case law children or vulnerable adults. The which was held pursuant to sections prohibited only endorsements requir- ALJ concluded that DCF abused its 120.569 and 120.57, Florida Statutes. ing the insurer’s consent. The court, discretion and recommended the A recommended order was issued, however, disagreed, stating that a exemption be granted. recommending that S.J. be “discipli- provision against the assignment of The DCF Secretary adopted all of narily reassigned” for the remainder an insurance policy did not bar the the ALJ’s findings of fact in the Final of the school year. The School Board assignment of post-loss benefits. The Order (including the finding of reha- then adopted the recommended order court concluded that “the right to bilitation and not presenting a dan- continued...

4 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

APPELLATE CASE NOTES duty police officer. After the incident, provide its services at the airport and from page 4 McDonough filed a Notice of Intent Port Everglades. The license agree- to file a claim against the City of ment mandated that Uber report to Homestead (City). While the Notice the county the number and time of through a “Notice of Adoption of Rec- of Intent was pending, McDonough pickups and drop-offs at the airport ommended Order,” but did not render filed a complaint against the police and Port Everglades, the identity of a final order. Nothing in the notice officer for defamation. The City was the driver, and the fee in each of those indicated the School Board intended not named in the complaint. zones. In exchange, the county was it to operate as a final order, or that it McDonough filed a public records required to maintain as confidential had any intention to grant S.J. all of request seeking five e-mails relating Uber’s trade secret information and the rights afforded by the Administra- to the City’s decision to defend the assert a trade secret exemption to tive Procedure Act (APA). police officer in the defamation action, any public records requests under the S.J. filed a petition for a writ of the last of which was acknowledged Florida Public Records Act. mandamus, asserting that the School in open court by McDonough to be Yellow Cab made a public request Board had a legal duty to issue a confidential, privileged, and exempt. to the county for all reports or docu- written final order pursuant to the The trial court determined that the ments containing pickup information APA because his “disciplinary reas- City properly claimed the first two by Uber, as well as the amount owed signment” affected his substantial records as exempt based on the claims to the county for those trips for a sev- interests. In granting the School file exception in section 768.28(16)(b), eral year period. The county refused Board’s motion to dismiss, the trial Florida Statutes, but that the third to release unredacted information court determined the APA did not and fourth records, even though kept without authorization from Uber, apply to a “disciplinary reassign- in the risk management file, were not claiming much of the information was ment” because the Legislature did confidential and exempt. The trial subject to a trade secret exemption. not explicitly provide that a “disci- court ordered the City to produce the Yellow Cab filed a complaint against plinary reassignment” falls under the non-exempt records. the county alleging a violation of purview of the APA, unlike expulsion. The Third District Court of Appeal the Public Records Act and sought The First District Court of Appeal disagreed with the trial court, finding the unredacted information. Uber disagreed, reversing the trial court’s that all of the documents requested intervened. The court held an eviden- dismissal. The court determined that were privileged and not subject to tiary hearing and ordered that the S.J.’s complaint for mandamus relief production pursuant to chapter information was subject to the trade sufficiently alleged facts that entitled 119, Florida Statutes, or section secret exemption. Yellow Cab moved him to mandamus relief, including 768.28(16)(b). The court concluded for rehearing and the court ruled by showing that his “disciplinary that no statutory exception to sec- that the number of pickups, in the reassignment” was virtually indis- tion 768.28(16)(b) existed to allow aggregate, as well as the amount of tinguishable from expulsion and, for production of records in the risk money paid to the county as a usage therefore, fell under the APA. management file, even where there fee at the airport was not trade secret The court also determined S.J. suf- would be no harm if produced. information and not exempt from ficiently alleged that the “disciplin- Accordingly, the court reversed the disclosure. Other more specific infor- ary reassignment” affected his sub- part of the order finding some of the mation, such as the specific locations stantial interests, finding his alleged claims file records non-exempt, con- and dates of the pickups, as well as inability to attend a traditional school cluding that that all of the records in the identity of the drivers, was trade satisfied the injury-in-fact standard, the City’s risk management file were secret information. and that this is the type of interest confidential and exempt from disclo- Uber appealed, arguing the trial the Education Code was designed sure until such time as the claims court abused its discretion in order- to protect. The court reversed and related to McDonough’s Notice of ing the production of the number of remanded the case to the trial court Intent have been resolved. pickups and amount of money paid to to issue an alternative writ of man- the county. The court rejected Uber’s damus directing the School Board to argument, reasoning that a corpora- show cause why the requested relief Public Records—Number of Pri- tion’s sales volume, income state- should not be granted. vate Car Service Pickups and ments, and gross sales were not trade Fees Paid to Broward County is secrets and cited to a federal district Public court order in California that con- Public Records—Exemptions for Rasier-DC, LLC v. B & L Serv., Inc., cluded Uber competitor Lyft’s com- Local Government Risk Manage- 43 Fla. L. Weekly D145 (Fla. 4th DCA missions and revenues on certain ment Claims Files Jan. 10, 2018). products were not trade secrets. In City of Homestead v. McDonough, 232 addition, the court reasoned that So. 3d 1069 (Fla. 3d DCA 2017). Rasier-DC, LLC, a subsidiary of Uber did not derive independent eco- Uber Technologies, Inc. (Uber), and nomic value from the fees given the Dr. James E. McDonough was Broward County entered into a license county or the total number of Uber involved in an incident with an off- agreement that permitted Uber to continued...

5 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

APPELLATE CASE NOTES tions with prejudice. The First Dis- lenge unaudited rates on the basis from page 5 trict Court of Appeal reversed the that they are preliminary in nature. orders of dismissal, and remanded for AHCA went on to find that, even if the the grant of formal hearings pursu- Hospitals were entitled to challenge pickups, and that disclosing such ant to section 120.57(1). unaudited rates, AHCA lacked juris- information would not provide Yel- Sarasota County Hospital District diction to adjust the Hospitals’ rates, low Cab with an advantage. Finally, (as representative of the Hospitals) due to section 409.905(6)(b)1., which the court noted that public records alleged that for fiscal year 2016-17, prohibits AHCA from making any cannot be made private based on a the Florida Legislature passed zero further adjustments after October promise of the government, citing Medicaid outpatient rate reductions 31 of the fiscal year. AHCA concluded National Collegiate Athletic Asso- and appropriated sufficient funds to that this therefore rendered the Hos- ciation v. Associated Press, 18 So. 3d reimburse the Hospitals at a rate pitals’ claims moot. 1201, 1208 (Fla. 1st DCA 2009). Thus, substantially higher than AHCA’s Given the posture, the court the court ordered the county to pro- posted reimbursement rates; yet, accepted the allegations of the peti- duce the redacted records providing AHCA, on its own initiative, elected tion as true and reviewed AHCA’s the fees given the county and the to implement drastic rate reductions statutory interpretations de novo. total number of Uber pickups. for the year, resulting in a significant The court determined that section reduction of funding for the Hospi- 409.908(1)(f)1. only spoke to audited tals. The applicable rates were not reimbursement requests, was silent Reimbursement for Medicaid posted by AHCA until after the start as to the pre-audit period, and thus, Funds for Hospitals—Mootness of the fiscal year on July 11, 2016, and did not preclude formal administra- of Petitions for Administrative then were revised and republished tive challenge to the Medicaid reim- Hearing on August 10, 2016. The rates, which bursement rates set by AHCA prior Sarasota Cnty. Pub. Hosp. Dist. v. were alleged to be greatly reduced to agency auditing. Agency for Health Care Admin., 230 from previous years, took effect for all The court further disagreed that So. 3d 973 (Fla. 1st DCA 2017). Medicaid outpatient hospital provid- the matter was moot after October 31, ers on July 1, 2016. 2016, even though the Hospitals’ peti- In a consolidated appeal, in which AHCA dismissed the Hospitals’ tions were filed several months before, Sarasota County Hospital District petitions, finding the rates of reim- finding that section 409.905(6)(b)1. served as the lead appellant, sixty- bursement were not “final agency applied to challenges of unaudited seven Petitioners (collectively, Hos- action” until after AHCA audited rates as well because, as a practical pitals) sought administrative hear- the Hospitals’ requested reim- matter, audits were not completed by ings pursuant to section 120.57(1), bursements, which would occur in such an early date in the fiscal year. Florida Statutes, after the Agency for the future. AHCA relied on section The court found AHCA’s inter- Health Care Administration (AHCA) 409.908(1)(f)1., Florida Statutes, pretation to be a misreading of the announced its rates of reimburse- which provides a point of entry for statutes, concluding that the substan- ment of Medicaid funds for services the Hospitals “to correct or adjust the tial interests of a party entitled to provided by hospitals for outpatient calculation of the audited hospital” Medicaid reimbursement are affected services for the 2016-17 fiscal year. rate, and on section 409.908(1), which at the time an unsatisfactory rate is AHCA dismissed the Hospitals’ peti- does not allow Hospitals to chal- continued...

CALL FOR AUTHORS: Administrative Law Articles One of the strengths of the Administrative Law Section is access to scholarly articles on legal issues faced by administrative law practitioners. The Section is in need of articles for submission to The Florida Bar Journal and the Section’s newsletter. If you are interested in submitting an article for the Bar Journal, please email Stephen Emmanuel (semmanuel@ ausley.com), and if you are interested in submitting an article for the Section’s newsletter, please email Jowanna N. Oates ([email protected]). Please help us continue our tradition of advancing the practice of administrative law by authoring an article for either the Bar Journal or the Section’s newsletter.

6 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

APPELLATE CASE NOTES repeal would have implemented new however, rejected the portion of the from page 6 DBPR policy with regard to desig- Final Order that concluded DBPR nated player games. The ALJ found lacked the authority to repeal the that DBPR failed to materially follow rules. announced, as that rate takes effect rulemaking procedures when it did immediately and reimbursements not file a SERC in response to the which are made prior to auditing are cardrooms’ LCRA, as section 120.541, Standing—Jurisdictional based on that rate. Accepting as true Florida Statutes, requires. Finally, Requirements to Challenge the Hospitals’ allegation that the the ALJ concluded that the repeal of Repeal of Agency Rule methodologies used to set the rates the rules exceeded DBPR’s rulemak- K.M. v. Dep’t of Health, 43 Fla. L. are not subject to change during the ing authority and enlarged, modified, Weekly D37 (Fla. 3d DCA Dec. 27, auditing process, the court held that or contravened the law implemented, 2017). the rate becomes final at the time it because DBPR did not have the abil- is announced, and therefore is subject ity to define an “authorized game” In 2015, the Department of Health to challenge. beyond the definition found in sec- (DOH) filed a notice of proposed rule- tion 849.086, Florida Statutes. DBPR making to repeal rule 64C-4.003, appealed. which required pediatric cardiac facil- Rule Challenge—Agencies Must On appeal, the court held that ities approved by Children’s Medical Follow Rulemaking Procedure DBPR’s proposed repeal of rules Services (CMS) to comply with cer- When Repealing Existing Rules 61D-11.001(17) and 61D-11.002(5) tain standards. DOH asserted that Dep’t of Bus. & Prof’l Reg. v. Dania was a “rule.” The court cited section it was repealing the rule because it Entmt. Ctr., LLC, 229 So. 3d 1259 120.52(16), Florida Statutes, and exceeded its statutory authority to (Fla. 1st DCA 2017). noted that a rule repeal constitutes regulate pediatric care facilities. a rule where it has the effect of cre- K.M. is a beneficiary of CMS who The Department of Business and ating or implementing a new rule or requires pediatric cardiac services Professional Regulation, Division of policy, or where it, in and of itself, to treat a serious heart condition. Pari-Mutel Wagering (DBPR) pub- creates rights and adversely affects She filed a petition for determina- lished a notice of proposed rulemak- others. Here, DBPR’s proposed rule tion of invalidity of proposed rule, ing to repeal rules 61D-11.001(17) would have adversely affected the alleging that DOH’s proposed repeal and 61D-11.002(5) and to adopt a cardrooms’ rights by giving DBPR of the rule would reduce the quality new rule that would prohibit player discretion to approve or deny internal of care available in the CMS pro- banked games established by the controls for designated player games gram and was an invalid exercise house. DBPR initially concluded that and the “net effect” of the repeal of delegated legislative authority. no statement of estimated regula- would have implemented DBPR’s The ALJ held a final hearing, dur- tory costs (SERC) was necessary new policy of prohibiting all desig- ing which two pediatric cardiologists because the proposed rules would nated player games. called by K.M. testified about the risk not create a financial impact greater In addition, the court held that of decreased quality of care provided than $200,000. Several cardrooms DBPR failed to prepare a SERC as by CMS clinics following a repeal submitted a good-faith based lower required by section 120.541. Thus, of rule 64C-4.003’s standards. The cost regulatory alternative (LCRA) the repeal of the rule was an invalid ALJ issued a Final Order dismissing proposal, estimating that the prohi- exercise of delegated legislative K.M.’s petition, concluding that K.M. bition on designated player games authority. lacked standing because she failed to would cost them more than $87 mil- However, the court did not affirm prove the proposed rule repeal would lion over five years. The LCRA stated the ALJ’s conclusion that DBPR have a real or immediate effect on the this increased cost could be avoided did not have the authority to repeal quality of care available in the CMS if DBPR did not repeal the rules. the rules. Because DBPR is autho- network. K.M. appealed. DBPR published a notice of change rized to regulate cardroom behavior The court observed that section that withdrew the proposed rule, including the rules for designated 120.56(1), Florida Statutes, requires but still proposed repealing rules player games, it had the author- K.M. to prove she will be “substan- 61D-11.001(17) and 61D-11.002(5). ity to further define the term “des- tially affected” by the repeal of rule A number of cardrooms filed peti- ignated player game” and provide 64C-4.003. To demonstrate that she tions challenging the validity of the additional guidance and clarity to is substantially affected, K.M. was proposed rule changes. After a formal the cardrooms. required to show that the repeal hearing, the ALJ issued a Final Order Accordingly, the court affirmed the would result in a real and immediate concluding that the repeal of rules ALJ’s Final Order concluding that injury in fact and that K.M’s interest 61D-11.001(17) and 61D-11.002(5) the proposed repeal of the rules was a is within the zone of interest to be was an invalid exercise of delegated rule and that the proposed rule repeal protected or regulated. legislative authority. The ALJ rea- was invalid because DBPR failed The court held that K.M. failed soned that the repeal of the rules met to follow the statutorily required to meet the real and immediate the definition of a “rule” because the rulemaking procedures. The court, continued...

7 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

APPELLATE CASE NOTES K.M., to initiate challenges to rule- based on the second application. DOH from page 7 making that exceeded delegated leg- entered a Final Order dismissing islative authority. Jackson South’s petition as moot, and Jackson South appealed. injury prong, because her prospec- Jackson South argued on appeal tive injury was based on speculation Trauma Center Application and that DOH was obligated to render and conjecture. The repeal of the Selection Process—Mootness a substantive determination on the rule did not have the direct effect of of Petition for Administrative merits of its petition challenging the reducing the quality of care provided Hearing denial of its first Level II trauma by CMS-approved providers, and Pub. Health Tr. of Miami-Dade Cnty., application. The intervenor argued the court reasoned that it was not Fla. v. Dep’t of Health, 230 So. 3d 992 that Jackson South had abandoned “readily apparent” that those pro- (Fla. 1st DCA 2017). its first application and that it could viders would stop providing quality not maintain multiple active appli- care simply because the rule was The Public Health Trust of Miami- cations at the same time. The court repealed. In addition, the court Dade County, Florida d/b/a Jackson disagreed, holding that the statutes noted that K.M.’s witnesses’ failed South Community Hospital (Jack- and rules did not prevent Jackson to offer unqualified testimony that son South) and Aventura Hospital South from filing a second application the repeal of the rule would lead to & Medical Center (Aventura) both while challenging DOH’s denial of its decreased quality of care. Instead, applied to the Department of Health first application. the testimony showed that although (DOH) to operate a Level II trauma The court also reasoned that Jack- a risk of decreased quality of care center in the same region during the son South’s provisional licensure dur- existed, there was no evidence that 2014-2016 application cycle. DOH ing the 2015-2017 application cycle the facilities would lower their stan- accepted Aventura’s application and did not moot its challenge to DOH’s dards of care due to the rule’s repeal. granted it provisional approval to denial of its first application filed The court affirmed. operate a Level II trauma center in during the 2014-2016 application In dissent, Judge Emas wrote the region. Jackson South’s applica- cycle. The denial of Jackson South’s that the court should have reversed tion was denied and it challenged first application would prevent it DOH’s denial of its application. The the ALJ’s Final Order dismissing from competing with Aventura for ALJ entered a Recommended Order the petition. Judge Emas concluded the sole available seven-year trauma that the record and expert testimony concluding that Jackson South sub- center license in the region. If DOH showed that K.M. had demonstrated mitted an acceptable application, was reversed its denial, either Jackson sufficient evidence that the quality of in substantial compliance with the South or Aventura would be eligible her future care from CMS-approved statutes, and should be approved to receive the seven-year license. But providers would be reasonably dimin- to operate as a provisional Level ished due to the repeal of the rule. II trauma center until the conclu- if DOH did not reverse its denial He also reasoned that standing to sion of the 2014-2016 application of Jackson South’s first application challenge an agency rule was broader cycle. DOH and one of the existing and granted Aventura the seven- than the traditional notion of stand- trauma centers (who had intervened year license, Jackson South’s second ing and that this broad standing was in the administrative proceedings) application would likely be denied essential to permit citizens, such as filed exceptions to the Recommended because the region needed only one Order. trauma center. Because DOH would During the 2015- not permit Jackson South to compete 2017 application cycle, against Aventura for the final trauma Jackson South filed an center spot using Jackson South’s THE FLORIDA BAR application to operate second application, Jackson South’s a Level II trauma cen- petition challenging DOH’s denial of ter in the same area. Jackson South’s first application was DOH granted Jack- not moot. Thus, the court reversed 24/7 Online & son South provisional DOH’s Final Order dismissing Jack- approval to operate a son South’s petition for administra- Downloadable CLE Level II trauma center. tive hearing as moot and remanded The intervenor then for further proceedings. moved to dismiss Jack- son South’s adminis- Tara Price and Larry Sellers FloridaBarCLE trative challenge to practice in the Tallahassee Office of For the Bar, By the Bar the denial of its first Holland & Knight LLP. application as moot because DOH had Gigi Rollini and April Caminez- www.floridabar.org/CLE granted Jackson South Bentley practice with Messer provisional approval Caparello, P.A., in Tallahassee.

8 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

DOAH CASE NOTES

Substantial Interest Hearings FCHR transmitted the case to the Silva served as the School’s principal Division of Administrative Hearings. or administrator. The Department Javier A. Muniz-Pagan v. Universal of Education (DOE) administers the City Development Partners, d/b/a OUTCOME: The ALJ noted that Gardiner Scholarship Program and Universal Studios Orlando, Case No. the Americans with Disabilities Act the John M. McKay Scholarships 17-2653 (Recommended Order Oct. (“the ADA”) makes no distinction for Students with Disabilities Pro- 6, 2017). between power-driven and manu- gram. In addition, DOE has some ally operated wheelchairs. An entity administrative responsibilities for FACTS: Javier A. Muniz-Pagan is a subject to the ADA can avoid making the Florida Tax Credit Scholarship 33-year-old disabled male who uses a reasonable modification to its poli- Program. The School participated an electric wheelchair. Universal City cies or procedures to accommodate in the three programs and received Development Partners, d/b/a Univer- such devices only when the entity scholarship funds paid on behalf of sal Studios Orlando (“Universal Stu- can demonstrate that the necessary its students. On March 30, 2017, dios”) owns, operates, and manages modification would fundamentally Pam Stewart, as Commissioner of entertainment parks in Orlando. On alter the nature of the good or service Education, issued an Administra- July 9 and 11, 2016, Universal Stu- at issue. The ALJ concluded that Uni- tive Complaint against SSF and Ms. dios did not permit Mr. Muniz-Pagan versal Studios “offered no evidence Silva, giving notice that Ms. Stewart to join the queues for the following that would support a finding that intended to end the School’s partici- attractions: Skull Island: Reign of allowing power-driven wheelchairs pation in the aforementioned scholar- Kong; E.T. Adventure; Jurassic Park in its attraction queues would fun- ship programs based on allegations of River Adventure; and Dudley Do- damentally alter the services, facili- fraudulent activity. Right’s Ripsaw Falls. According to ties, privileges, advantages, or accom- Mr. Muniz-Pagan, Universal Stu- modations that it provides to its OUTCOME: The Administrative dios employees told him that power patrons.” The ALJ further concluded Law Judge (“ALJ”) recommended that wheelchairs could not be allowed in that “[i]n the absence of evidence the Commissioner enter a final order the queues because they would be that it would fundamentally alter revoking the School’s participation a safety hazard if they lost power. the nature of its services to allow in the scholarship programs. In the Universal Studios publishes a Rid- attraction queue access to patrons course of doing so, the ALJ addressed ers Guide for its patrons and has an who operate power-driven wheel- the argument by SSF and Silva that internal operating document setting chairs, [Universal Studio]’s practice the standard of proof should be clear forth general operating procedures of directing such patrons to the exit and convincing evidence because the pertaining to guests with disabilities. ramp seems to be the practical equiv- case amounted to a penal proceed- Both documents demonstrate that alent of telling these patrons ‘to go ing. The ALJ concluded as follows: Universal Studios provides unre- around to the back.’” Accordingly, the “This argument is not without merit, stricted access to its attractions for ALJ recommended that FCHR enter for a proceeding to revoke a private patrons operating manual wheel- a final order finding that Universal school’s participation in a scholarship chairs. However, those same docu- Studios subjected Mr. Muniz-Pagan program has punitive overtones, to ments also demonstrate that Uni- to unlawful discrimination by not say the least. But a school which is versal Studios provides no access to allowing him to use his power-driven prohibited from receiving (through its its attractions for patrons operating wheelchair in attraction queues at its students – the school’s benefit is indi- electric wheelchairs. If a patron using theme park. rect) these scholarship funds is not an electric wheelchair refuses or is precluded from operating as a private unable to transfer to a manual wheel- school; unlike a licensee whose license chair provided by Universal Studios, Pam Stewart, as Comm’r of Educ. v. is revoked, the school may keep its then Universal Studios offers for that Silva of South Fla., Inc., d/b/a New doors open. Further, a decision to patron to use the exit ramp to access Horizons (7502), and Yudit Silva, revoke a private school’s participa- an attraction. Mr. Muniz-Pagan filed Case No. 17-3898SP (Recommended tion in a scholarship program does a complaint with the Florida Com- Order Dec. 11, 2017). not take scholarship benefits away mission on Human Relations, for from any of its students (to whom unlawful discrimination based on FACTS: Silva of South Florida, Inc. the scholarships are awarded); they disability. After FCHR’s investiga- (“SSF”), is a nonprofit corporation are free to continue receiving their tion, Mr. Muniz-Pagan filed a petition that operated a private school known scholarships, so long as they transfer for an administrative hearing, and as New Horizons (“the School”). Yudit continued...

9 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

DOAH CASE NOTES of Miami-Dade County.” Case Nos. 17-4870PL, 17-4871PL, from page 9 Summer Jai-Alai timely requested 17-4872PL, & 17-4873PL (Recom- a formal administrative hearing mended Order Dec. 27, 2017). under sections 120.569, 120.57(1), to another school. The undersigned and 120.57(1)(e), Florida Statutes, FACTS: Areci Robledo (“Ms. Robledo” concludes that participation by a pri- and the matter was referred to the or “Respondent”) holds a license vate school in the Gardiner, McKay, Division of Administrative Hearings. authorizing her to train greyhounds and FTC scholarship programs is in Florida. The Department of Busi- not a vested right or even an entitle- OUTCOME: An Administrative Law ness and Professional Regulation, ment, but a kind of privilege, namely Judge (“ALJ”) recommended that the Division of Pari-Mutuel Wagering that of selling a product (education) Division enter a final order dismiss- (“the Division”) served Ms. Robledo to customers being subsidized by the ing the notice of intent to withdraw with four administrative complaints state to make the purchase. Depriva- Summer Jai-Alai’s license. alleging that she impermissibly med- tion of participation, therefore, is not The ALJ observed that a purported icated or administered prohibited a sanction, but rather amounts to a “withdrawal” of an already-issued substances to racing greyhounds for loss of eligibility to continue enjoying license is a legal nullity, unless the which she was the trainer of record an exceptional commercial advan- invalidation is authorized by stat- for races held at Palm Beach Ken- tage. Such deprivation determines ute or rule. The Division claimed it nel Club between September 27, the school’s substantial interests, but was permitted to withdraw or revoke 2016 and January 28, 2017. During is not punitive in character.” the license under section 550.0745, the course of the final hearing, Ms. Florida Statutes, which generally Robledo presented an exhibit pur- authorizes the conversion to a sum- portedly consisting of photographs Dep’t of Bus. & Prof’l Reg., Div. of mer jai-alai permit and provides that taken at the Palm Beach Kennel Pari-mutuel Wagering v. Summer the permittee may operate within its Club. The Division opposed admis- Jai-Alai P’ship, Case No. 17-3727 original county. However, the ALJ said sion of those photographs, arguing (Recommended Order Dec. 12, 2017) this statute must be read together that they had not been provided to with section 550.475, Florida Stat- the Division prior to the hearing, FACTS: Summer Jai-Alai Partner- utes, which authorizes a pari-mutuel they had not been authenticated, ship (“Summer Jai-Alai”) has held permitholder to lease its facility to and they were irrelevant. After the a summer jai-alai permit in Miami- any other holder of the same class final hearing, the ALJ became aware Dade County for more than 35 years, permit when located within a 35-mile of another ALJ’s ruling in McClellan the result of converting an earlier radius of each other—not limited to & Nemeth v. Department of Business greyhound racing permit into a sum- the original county. Indeed, the ALJ and Professional Regulation, Division mer jai-alai permit. In December observed that the Division had previ- of Pari-Mutuel Wagering, that the 2016, Summer Jai-Alai applied for ously interpreted section 550.475 in Division’s urine sampling procedures a 2017-18 operating license based that exact way, but at some point in were based on an unadopted rule. on the permit, expressly identifying time changed its position. Thus, the the proposed location of the summer ALJ rejected the Division’s argument OUTCOME: The ALJ accepted the jai-alai performances as a location in that as applied to converted permits photographs into evidence. In doing Dania, Florida—which is outside of like Summer Jai-Alai’s, the statutes so, she explained as follows: “As the Miami-Dade County, but is located only authorized relocation up to 35 Supreme Court of Florida recently less than 35 miles from the location it miles within the original county. observed in Florida Industrial Power had previously used in Miami-Dade. In addition, in what was described Users Group v. Graham, 209 So. 3d On March 10, 2017, the Depart- as a close question, the ALJ found 1142, 1146 (Fla. 2017), the Florida ment of Business and Professional that Division’s notice of intent to Evidence Code is not applicable to Regulation Division of Pari-mutuel withdraw the license amounted to administrative proceedings, and Wagering (“the Division”) issued the an unadopted agency statement that administrative agencies therefore license. Following a complaint from qualified as a rule that deprived hold- possess the discretion whether to the landlord of Summer Jai-Alai’s ers of converted permits of the ben- require the parties to strictly adhere Miami-Dade County location, how- efit of section 550.475. The ALJ also to the evidentiary rules established ever, the Division determined that rejected any contention by the Divi- in chapter 90, Florida Statutes. Here, it had issued the license in error. In sion that rulemaking was not feasible because Respondent appeared pro se a notice of intent to withdraw the or practicable. and is not familiar with evidentiary license, the Division did not allege principles regarding authentication; that Summer Jai-Alai had violated because the photographs, if authen- any statute or rule, but instead stated Disciplinary/Enforcement tic, are tangentially relevant to show simply that the license was issued Actions general conditions present at the “in error as [Summer Jai-Alai] is not PBKC, albeit not necessarily on the authorized to operate summer jai-alai Dep’t of Bus. & Prof’l Reg., Div. of Pari- dates on which the greyhounds that performances via the Permit outside Mutuel Wagering v. Areci Robledo, continued...

10 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

DOAH CASE NOTES findings of fact on this issue be made, would determine whether a carrier from page 10 and that a recommended order after had improperly adjusted or disal- remand be entered.” Ultimately, the lowed a provider claim, determine ALJ recommended that the Division the proper reimbursement amount are the subject of these proceedings enter final orders imposing fines and pursuant to a contract or managed raced; and because [the Division] was suspensions based on Ms. Robledo’s care arrangement, and order the car- able to conduct cross-examination at violations of section 550.2451, Florida rier to promptly pay that amount. the final hearing regarding the photo- Statutes. Similarly, if a carrier adjusted or dis- graphs, the undersigned determines allowed a provider charge based on that they should be, and therefore a lack of compensability or medical are, admitted into evidence. However, Rule Challenges necessity, DWC would also make the for the reasons discussed herein, they necessary determinations and resolve have been given minimal weight.” Fla. Society of Ambulatory Surgi- the dispute. As for the McClellan ruling and its cal Ctrs., Inc., et al. v. Dep’t of Fin. Three petitions were filed to chal- impact on this case, the ALJ explained Servs., Div. of Workers’ Comp., et al., lenge the proposed rule provisions in that the “[k]ey to the ALJ’s deter- Case Nos. 17-3025RP, 17-3026RP, subsection (1) and subsection (2), as mination in McClellan that urine & 17-3027RP (Final Order Nov. 30, well as a related proposed amend- sampling procedures used in that 2017). ment to an existing rule. Petitioners case constituted an unadopted rule represented the interests of health was [the Division]’s stipulation that: FACTS: The Department of Finan- care providers regularly participating ‘[t]he Division and its representatives cial Services, Division of Workers’ in DWC’s provider-carrier reimburse- are still following the protocols and Compensation (“DWC”), resolves dis- ment dispute process. The three cases procedures outlined in Section 3 of putes between health care providers were consolidated. A group of Inter- the 2010 Manual as its protocol for and insurance carriers over reim- venors representing the interests sampling racing greyhounds’ urine.’ bursement for health care services of insurance carriers regularly par- By contrast, in the instant proceed- provided to injured workers, pursuant ticipating in DWC’s provider-carrier ing, the parties did not stipulate or to section 440.13(7), Florida Statutes. reimbursement dispute process inter- otherwise assert that the sampling On December 7, 2016, DWC proposed vened in support of DWC’s proposed procedures used to collect and store amendments to existing rules regard- rules. the urine constitute an unadopted ing the reimbursement dispute reso- rule that violates section 120.54(1)(a), lution process, and also proposed to OUTCOME: The ALJ issued a Final and the evidence presented in these adopt new rule 69L-31.016, entitled Order invalidating the challenged proceedings was not sufficiently “Reimbursement Disputes Involving proposed rule provisions. As a thresh- detailed to enable the undersigned to a Contract or Workers’ Compensa- old matter, the ALJ rejected DWC’s determine whether these procedures tion Managed Care Arrangement or claim that Petitioners lacked stand- were, in fact, substantially similar or Involving Compensability or Medical ing because they failed to prove they identical to those in Section 3 of the Necessity.” Subsection (1) of the pro- would be directly impacted by the pro- 2010 Manual. Accordingly, under the posed rule provided that DWC would posed rules. The ALJ pointed out the existing record in these proceedings, no longer resolve reimbursement dis- inconsistency of DWC’s stipulation the undersigned is not able to make putes between health care provid- that the carrier-Intervenors would a finding that the urine sampling ers and carriers when: (1) a contract be directly impacted by the proposed procedures used in these cases con- established the amount of reimburse- rules, finding that stipulation to be stitute an unadopted rule on which ment to the health care provider; or an admission equally applicable to [the Division] would not be entitled (2) health care services were provided the other side of the provider-carrier to rely as a basis for agency action. to the injured worker via a workers’ reimbursement disputes addressed However, the undersigned is keenly compensation managed care arrange- by the proposed rules. Separately, the aware that section 120.57(1)(e) pro- ment. Under subsection (2) of the ALJ rejected DWC’s argument that hibits both the ALJ and the agency proposed rule, the Division would to prove standing, Petitioners were from taking agency action based on also not resolve reimbursement dis- “required to quantify with precision an unadopted rule. Accordingly, if [the putes arising from assertions by a the amount of lost income by rea- Division] believes that additional evi- carrier that particular treatment was son of application of the unadopted dence needs to be presented in these not compensable or medically neces- policies in order to prove they will be proceedings to enable salient findings sary. Since August 2015, the Division injured in fact by the adoption of the of fact to be made on this issue in has been utilizing a non-rule policy [p]roposed rules.” The ALJ deemed these cases, it may, before entering consistent with subsection (1) of the DWC’s argument to be a “plain the final orders, remand these pro- proposed rule. Since November 2015, misreading” of Office of Insurance ceedings to the undersigned with a DWC has been utilizing a non-rule Regulation v. Secure Enterprises, request that the evidentiary hearing policy similar to subsection (2) of the LLC, 124 So. 3d 332 (Fla. 1st DCA be re-opened to take additional evi- proposed rule. Prior to the utiliza- 2013). Among other distinctions, the dence on this issue, that additional tion of the non-rule policies, DWC continued...

11 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

DOAH CASE NOTES the proposed rules, the ALJ con- No. 17-5238RU (Partial Summary from page 11 cluded that “[t]he grant of rulemak- Final Order Dec. 22, 2017). ing authority in section 440.13(7)(e) authorizes rules only for ‘carrying FACTS: Charles F. McClellan and ALJ noted that “unlike in Secure out’ section 440.13(7), not ‘carving Natasha Nemeth are licensed rac- Enterprises, Petitioners are directly out’ exceptions from the all-inclusive ing greyhound trainers. The Depart- regulated by the statute, the existing scope of the statutory reimbursement ment of Business and Professional rules, and the proposed rules. More- dispute process.” In addition to call- Regulation, Division of Pari-Mutuel over, here, the proposed rules seek to ing into question DWC’s argument Wagering (“the Division”), served take away (and the unadopted poli- that only Article V courts have the five Administrative Complaints on cies have already taken away) from authority to interpret and apply con- Mr. McClellan and four Adminis- Petitioners the rights they previously tracts such as one between a health trative Complaints on Ms. Nemeth, exercised to use the reimbursement care provider and a carrier, the ALJ alleging that they violated section dispute process to resolve their reim- concluded that even if that argu- 550.2415(1)(a), Florida Statutes bursement disputes involving reim- ment were well-founded, that would (2017), because their racing grey- bursement contracts or managed not create rulemaking authority “to hounds tested positive for cocaine care arrangements, and to resolve insinuate an exception into the stat- metabolites. On September 21, 2017, disputes when carriers adjusted ute, where none exists, to exclude Mr. McClellan and Ms. Nemeth filed or disallowed payment for any . . . reimbursement disputes involving a two-count rule challenge petition. reason.” contract-based reimbursement. That Count I was an unpromulgated rule The ALJ concluded that the chal- is an unlawful insinuation of author- challenge, alleging that the Divi- lenged proposed rules exceeded ity by bureaucratic osmosis.” sion’s urine sample collection prac- DWC’s grant of rulemaking author- tices are based on Section 3 from ity and enlarged, modified, or con- the Greyhound Veterinary Assistant travened the specific provisions of Charles F. McClellan and Natasha Procedures Manual (“the Manual”) laws to be implemented. With regard Nemeth v. Dep’t of Bus. & Prof’l Reg., even though Section 3 had been to whether DWC had authority for Div. of Pari-Mutuel Wagering, Case continued...

12 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

DOAH CASE NOTES so that the Division can ensure the 2017. Centerplate, Spectra, and two from page 12 greyhound races that occur during other entities responded with propos- the pendency of any legal challenges als. On June 16, 2017, UCF invited occur under safe conditions.” Spectra to attend an in-person meet- determined to be an unpromulgated ing to discuss aspects of a potential rule in Dawson v. Department of Busi- agreement between the two entities. ness and Professional Regulation, Bid Protests During the course of the meeting Case No. 14-5276RU (Fla. DOAH Jan. held between UCF and Spectra on 29, 2015). Count II of the petition was Boston Culinary Group, Inc., d/b/a June 21, 2017, Spectra representa- a challenge directed to existing rules. Centerplate v. Univ. of Central Fla., tives requested and received a tour With regard to Count I, the Divi- Case No. 17-4509BID (Recommended of UCF facilities relevant to the con- sion acknowledged in a Pre-Hearing Order Nov. 21, 2017). cessions contract. On July 20, 2017, Stipulation that “[t]he Division and UCF announced that it intended to its representatives are still following FACTS: Since 2007, Boston Culi- award the concessions contract to the protocols and procedures outlined nary Group, Inc., d/b/a Centerplate in Section 3 of [the Manual] as its pro- Spectra. Centerplate protested that (“Centerplate”), has held a ten-year tocol for sampling racing greyhounds’ decision, and Centerplate’s request contract to provide concessions and urine.” Petitioners moved for Partial for a formal administrative hearing alcoholic beverages at multiple ath- Summary Final Order, with respect was referred to DOAH. letic and performance facilities on to Count I only. the campuses of the University of OUTCOME: The ALJ found that Central Florida (“UCF”). In January OUTCOME: The Administrative “[p]articipating in the ITN develop- 2016, UCF began preparing for the Law Judge (“ALJ”) issued a Partial ment would provide a vendor the end of Centerplate’s contract and the Summary Final Order, concluding competitive advantage of having a that as to Count I of the petition, award of a new concessions contract. hand in shaping the ITN, a head start the Division has been violating sec- Ovation Food Services, L.P., d/b/a on preparing a proposal, and a fuller tion 120.54(4)(e), Florida Statutes, Spectra Food Services and Hospital- understanding of the University’s by continuing to rely on Section 3 ity (“Spectra”), provides concessions, desires and priorities. Mr. Hixen- even after being ordered by Dawson venue management, and related baugh participated in the meetings to cease all such reliance. The ALJ hosting and entertainment services. and gained a competitive advantage retained jurisdiction to conduct fur- Brian Hixenbaugh is a Spectra gen- for Spectra.” Accordingly, the ALJ ther proceedings on attorneys’ fees eral manager and has worked for concluded that “Mr. Hixenbaugh’s Spectra since 2006. Mr. Hixenbaugh and costs. participation and the walk-through appears on the UCF organization One week after the ALJ’s ruling, did not just violate University rules. chart under Curt Sawyer, UCF’s the Division published an emergency They were contrary to competition. Associate Vice President for Uni- rule governing drug testing of rac- Competitive bidding is designed to versity Services. Mr. Sawyer met ing greyhounds. As justification for secure fair competition on equal with Mr. Hixenbaugh and five other finding that there is an immediate terms for all bidders. Harris v. Sch. danger to the public health, safety, men to discuss the concessions con- tract on February 19, 2016. Follow- Bd., 921 So. 2d 725 (Fla. 1st DCA or welfare, the Division stated in its 2006). Axiomatically, providing one “Notice of Emergency Rule” that “an up meetings with the same people were scheduled on approximately bidder a voice in shaping the ITN, emergency rule is necessary because providing one bidder advance notice the Division would be unable to test April 15, 2016 and June 10, 2016. of the ITN terms, and allowing that for many prohibited substances in During at least two of the aforemen- bidder to develop a relationship with greyhounds and be unable to take tioned meetings, the participants the individuals who evaluate the subsequent administrative action in discussed important aspects of the cases where a prohibited substance invitation to negotiate (“ITN”) that bid and participate in the negoti- is found in such an animal. Such would be utilized to procure a new ation denies fair competition and substances would include perfor- concessions contract. Because Spec- places the bidders on unequal foot- mance enhancing substances, pain tra was interested in bidding for the ing. Allowing the Spectra negotiating numbing substances, and others that new concessions contract, some UCF team to tour the University facilities could lead to potential injuries or officials were concerned about Mr. before the negotiation session in vio- death to the racing animals. Further, Hixenbaugh’s involvement in the lation of the ITN requirements, with the Division must be able to test for meetings about the concessions con- University negotiation team mem- such substances in order to ensure tract. Nevertheless, Mr. Hixenbaugh ber Mr. Hansen facilitating the tour, legitimate and fair races and to pro- attended another significant meeting exacerbated the University’s anti- tect the betting public. Although the on August 29, 2016, concerning the competitive behavior.” As a result, Division rejects the legal finding in concessions contract. UCF issued an the ALJ recommended that UCF the Partial Summary Final Order, Invitation to Negotiate (“ITN”) for the enter a final order declaring the ITN the Emergency Rule is necessary concessions contract on February 28, invalid and rejecting all proposals.

13 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

Constitutional Revision Commission Administrative Law Update by Jowanna Nicole Oates

In 1968, the Florida Constitution court does not simply impose its interpretation of its own adopted was amended to create a commission own construction on the statute, as rule. See, e.g., Baptist Hospital, Inc. v. to be convened after ten years and would be necessary in the absence Dep’t of Health & Rehab. Servs., 500 subsequently every twenty years, to of an administrative interpretation. So. 2d 620 (Fla. 5th DCA 1986). examine the Constitution and sug- Rather, if the statute is silent or However, administrative law gest changes for consideration by ambiguous with respect to the spe- judges (ALJs) are not required to the voters.1 The first Constitutional cific issue, the question for the court give deference to an agency’s inter- is whether the agency’s answer is Revision Commission (CRC) was con- based on a permissible construction pretation of a statute or a rule. Unlike vened in 1978; the second in 1998; of the statute. appellate courts, ALJs do “not merely and the third in 2017. The CRC began find the facts and supply the law, its work on March 20, 2017, and has 467 U.S. at 842-43.6 The Court’s deci- as would a court. The hearing offi- held public meetings throughout the sion in Chevron has been heavily cer ‘independently serves the pub- state and considered over 2,000 pub- criticized by academics, industry lic interest by providing a forum to lic proposals.2 groups, and Supreme Court Justices expose, inform, and challenge agency Although none of the administra- Antonin Scalia, Clarence Thomas and policy and discretion.’” McDonald v. tive law proposals submitted by the Neil Gorsuch.7 Dep’t of Banking & Finance, 346 So. public advanced, an administrative 2d 569, 583 (Fla. 1st DCA 1977). The law proposal submitted by Commis- Florida’s Current Treatment decision in The Public Health Trust of sioner Roberto Martinez is currently of the Agency Deference Doc- Miami-Dade County v. Department of moving through the process. Proposal trine Health further illustrates why ALJs 6 seeks to amend Article V of the are not required to adhere to the Florida Constitution3 by creating a Although Florida’s appellate courts agency deference doctrine: new section 21: have not expressly adopted Chevron, the state’s courts have extended simi- Unlike the judiciary, ALJs are par- ticipants in the decision-making Section 21. Judicial interpretation lar deference to an agency’s interpre- of statutes and rules – In inter- 8 processes that lead to administra- preting a state statute or rule, a tation of a statute. The First District tive interpretations of statutes and state court or an administrative law Court of Appeal has explained the rules—the very administrative in- judge may not defer to an admin- agency deference doctrine as follows: terpretations to which courts defer. istrative agency’s interpretation An administrative agency’s inter- The ALJ’s duty is to provide the of such statute or rule, and must pretation of a statute that it applies parties an independent and impar- instead interpret such statute or is usually accorded substantial def- tial analysis of the law with a view 4 rule de novo. erence unless the interpretation towards helping the agency make the correct decision. In fulfilling The proposal echoes recent efforts by is clearly erroneous. Under that doctrine, if the agency’s interpreta- this duty, the ALJ should not defer the United States Congress to legis- to the agency’s interpretation of a latively overturn the United States tion is one of several permissible interpretations, it must be upheld statute or rule, as a court would; Supreme Court’s decision in Chev- despite the existence of reasonable rather, the ALJ should make in- dependent legal conclusions based ron, USA, Inc. v. Natural Resources alternatives. Defense Council, 467 U.S. 837 (1984).5 upon his or her best interpreta- In Chevron, the Court created a judi- This court recognizes exceptions tion of the controlling law, with cial framework for reviewing an to the general rule. First, a court the agency’s legal interpretations agency’s interpretation of a statute need not defer to an agency’s con- being considered as the positions struction or application of a statute of a party litigant, entitled to no that it is authorized to administer: if special agency expertise is not more or less weight than those of First, always, is the question wheth- required. Similarly, a court need the private party. Otherwise, when- er Congress has directly spoken not defer to an agency’s construc- ever a private litigant is up against to the precise question at issue. tion if the language of the statute a state agency and the outcome If the intent of Congress is clear, is clear and therefore not subject to depends upon the meaning of an that is the end of the matter; for construction. ambiguous statute or rule admin- the court, as well as the agency, istered by that agency, the agen- must give effect to the unambigu- Doyle v. Dep’t of Bus. Reg., 794 So. 2d cy’s thumb would always be on the ously expressed intent of Congress. 686, 690 (Fla. 1st DCA 2001). See also scale, even during the putatively de If, however, the court determines Verizon v. Jacobs, 810 So. 2d 906, 907 novo administrative hearing, and Congress has not directly addressed (Fla. 2002). Additionally, Florida’s the non-agency party’s interpretive the precise question at issue, the appellate courts defer to an agency’s continued...

14 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

CONSTITUTIONAL REVISION opined that replacing judicial defer- 50, 68 (2011) (“It seems contrary to from page 14 ence to an agency’s statutory inter- fundamental principles of separa- pretation with de novo review would tion of powers to permit the person remedy the due process issues raised who promulgates a law to interpret arguments would never be heard by the deference doctrine: it as well.”) (Scalia, J., concurring). by a judge who could be completely [D]e novo judicial review of the See also Pedraza, 208 So. 3d at 1257 neutral in deciding such questions (Shepherd, J., concurring). of construction. law’s meaning would limit the abil- ity of an agency to alter and amend However, proponents for the status Case No. 15-3171 (DOAH Feb. 29, existing law. It would avoid the quo also express separation of powers 2016) at ¶ 119. Similarly, the ALJ due process and equal protection concerns stemming from judges decid- in Associated Industries of Florida, problems of the kind documented ing policy. For example, in Chevron, Inc. v. Department of Environmental in our decisions. It would promote the Court opined that in cases where Protection, Case No. 16-6889 (DOAH reliance interests by allowing citi- there is statutory ambiguity, “federal Dec. 30, 2016) at ¶ 37, explained that zens to organize their affairs with judges—who have no constituency— some assurance that the rug will deference to an agency’s statutory have a duty to respect legitimate interpretation was a “judicial prin- not be pulled from under them to- morrow, the next day, or after the policy choices made by those who do. ciple” and chapter 120, Florida Stat- next election. And an agency’s re- The responsibilities for assessing the utes, does not require ALJs to provide course for a judicial declaration of wisdom of such policy choices and such deference. the law’s meaning that it dislikes resolving the struggle between com- would be precisely the recourse the peting views of the public interest are Questions Raised by Proposal 6 Constitution prescribes—an appeal not judicial ones….” 467 U.S. at 866. to higher judicial authority or a new See also John C. Cruden, Assistant 1) Would use of the de novo stan- law enacted consistent with bicam- Attorney General, Remarks on the dard of review eliminate constitu- eralism and presentment. Enduring Nature of the Chevron Doc- tional concerns associated with Gutierrez-Brizuela v. Lynch, 834 F. 3d trine at the D.C. Bar’s Administrative the agency deference doctrine? 1142, 1158 (10th Cir. 2017) (Gorsuch, Law and Agency Practice Commit- Critics of the agency deference J., concurring). tee’s Harold Leventhal Lecture (Nov. doctrine often contend that judicial Another argument against judicial 10, 2015) (explaining that the delega- deference to an agency’s interpreta- deference to an agency’s interpreta- tion of authority to agencies makes tion of a statute or rule violates a sense due to the agencies’ “political 9 tion of a statute or rule is that such litigant’s right to due process. The deference violates the separation of accountability and responsiveness.”). Florida Supreme Court has explained powers doctrine.11 The separation Similarly, the Florida Supreme Court that due process requires that liti- of powers doctrine has been strictly has stated that under Article II, sec- gants be afforded adequate notice applied by the Florida Supreme Court, tion 3 of the Florida Constitution, and the opportunity to be heard. See to prevent one branch of government policy decisions are to be made by the Scull v. State, 569 So. 2d 1251, 1252 from encroaching on the power of Legislature. See, e.g., Askew v. Cross (Fla. 1990). Arguably, due process is another and to prevent one branch Key Waterways, 372 So. 2d 913, 925 implicated by the agency deference of government from delegating its (Fla. 1978). doctrine because it results in an agen- power to another branch. See Whiley cy’s interpretation of a statute or rule v. Scott, 79 So. 3d 702, 708-09 (Fla. 2) Would the proposal increase being clothed with the presumption of 2011). There is concern that judicial the complexity of the rule adop- correctness in a proceeding in which deference to an agency’s interpreta- tion process? the agency is a party.10 This is argu- tion of a statute or rule, results in Advocates of the agency deference ably unfair to the non-agency litigant. judges delegating their authority to doctrine maintain that the judicial See, e.g., Pedraza v. Reemployment interpret the law to the executive deference is necessary due to the com- Assistance Appeals Comm’n, 208 So. branch. See, e.g,. Talk America, Inc. plex nature of rulemaking. Although 3d 1253, 1257 (Fla. 3d DCA 2017) v. Michigan Bell Tel. Co., 564 U.S. (Shepherd, J., concurring) (opining continued... that courts “should not be so quick to embrace a course of conduct that results in Ethics Questions? systemic bias towards one of the parties.”). In other types of proceed- Call The Florida Bar’s ings, a court is not per- mitted to “favor” one ETHICS HOTLINE party over another. Then-Judge Neil Gorsuch, writing in 1/800/235-8619 a concurring opinion,

15 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

CONSTITUTIONAL REVISION Florida Statutes, requires an agency this article and others will be consid- from page 15 to compile a fairly extensive rulemak- ered by the CRC as the process con- ing record, it is unclear how the de tinues. If you wish to follow the pro- novo standard would add time to the posal, the CRC has announced that it the Florida Legislature is prohib- rulemaking process. will hold additional hearings across ited from delegating its authority to the state in March 2018 in order to another of branch of government,12 3) Is the proposal necessary? allow for citizen input and CRC meet- some degree of delegation is often A final argument that the CRC ings are always livestreamed on the necessary: will have to consider is whether Florida Channel. Subordinate functions may be Proposal 6 is necessary. In Florida, transferred by the legislature to courts are not required to defer to an Jowanna Nicole Oates is a Chief permit administration of legislative agency’s interpretation of a statute, Attorney with the Joint Administrative policy by an agency with the exper- because in reviewing ambiguities, Procedures Committee. She is tise and flexibility needed to deal courts generally use canons of statu- the immediate past chair of the with complex and fluid conditions. tory construction. See, e.g., Bautista Administrative Law Section, serves as Otherwise, the legislature would v. State, 863 So. 2d 1180, 1185 (Fla. a co-editor of the Administrative Law be forced to remain in perpetual 2003) (“Legislative intent is the pole- session and devote a large portion Section Newsletter, and is a member of its time to regulation. “Obviously, star that guides a court’s statutory of The Florida Bar Continuing Legal the very conditions which may oper- construction analysis.”). Addition- Education Committee. She earned her ate to make direct legislative con- ally, the Legislature is always free J.D. from the University of Florida trol impractical or ineffective may to revisit a statute or to pass a new Frederic G. Levin College of Law. also, for the same reason, make the statute, where agency rulemaking drafting of detailed or specific legis- reveals a gap in statutory authority. The views expressed herein are those of lation impractical or undesirable.” For example, in Associated Indus- the author and not intended to reflect Microtel, Inc. v. Fla. Public Serv. tries of Florida, Inc. v. Department of the views of the Joint Administrative Comm’n, 464 So. 2d 1189, 1191 (Fla. Environmental Protection, the ALJ Procedures Committee or the Florida 1985) (citations omitted). An example invalidated a rule that required com- Legislature. of the complexity of regulation is the panies to notify the public of a pol- number of rules adopted per year by lution release within 24 hours after Endnotes Florida’s agencies versus the number release, because the agency did not 1 See Article 11, section 2, of the Florida of bills passed by the Legislature. have authority to adopt the rule and Constitution for provisions related to the cur- Last year, Florida’s agencies adopted the rule enlarged the statutes cited rent operation of the CRC. 1760 rules; in comparison, the Legis- as law implemented. See DOAH Case 2 Out of the 2,000 proposals, only six public lature passed 249 bills.13 No. 16-6889 (Dec. 30, 2016) at ¶¶ 33 proposals were advanced. See CRC Takes Up Conversely, in reviewing concerns and 39. In response, the Legislature Six Citizen Proposals, Florida Bar News, Nov. with a similar federal proposal to passed the Public Notice of Pollution 15, 2017. Several administrative law propos- replace the agency deference doctrine Act the next session, which gave the als were submitted by the public for consid- Department the authority needed to eration by the CRC. See, e.g., Public Propos- with de novo review, the dissenting als N. 700077—Nullification of Administra- view of the United States House of adopt rules related to public notifica- tion of pollution events. See Ch. 2017- tive Rules (legislative nullification of agency Representatives Judiciary Commit- rules by joint resolution); Public Proposal N. 95, Laws of Fla. tee observed: 700686—Jurisdiction of District Court of Ap- Leading administrative law experts peal (prohibition on the Legislature passing Conclusion a law to require administrative appeals to be generally agree that abolishing There are compelling arguments judicial deference to agencies’ heard by a district court of appeal outside the interpretations of their statutory for preserving the agency deference jurisdiction of the order being appealed). authority would make the rulemak- doctrine and for replacing the doc- 3 Commissioner Martinez at the CRC Ex- ing process more costly and time- trine with de novo review. Proposal ecutive Committee meeting held on February consuming. Heightened review 6 has passed its committees of refer- 2, 2018, noted that the proposal, if approved, would force agencies to adopt more ence and is ready for consideration should be placed in Article II, section 3, of the detailed factual records and expla- by the full commission. In order for a Florida Constitution. nations, effectively imposing more proposal to be placed on the Novem- 4 The de novo standard of review has been procedural requirements on agency ber 6, 2018, general election ballot, it described as “free review” because the appel- rulemaking, which is already bur- must receive approval from 22 mem- late court is not required to give deference to dened by procedural delays. bers of the full commission.14 The the lower court’s decisions of law. See Harvey H.R. Rep. No. 114-622, at 27 (June CRC must submit its final report to J. Sepler, Appellate Standards of Review, 73 Fla. B. J. 11, 49 (Dec. 1999). 14, 2016). However, Florida currently the Department of State no later than 5 requires agencies to compile a rule- May 10, 2018.15 A proposal placed on See, e.g., Separation of Powers Restoration making record “in all rulemaking pro- the ballot must be approved by at Act (SOPRA), H.R. 4768, 114 Cong. § 3 (2016); Regulatory Accountability Act of 2017, H.R. 5, ceedings.” See § 120.54(8)(a)-(h), Fla. least 60% of the electors voting on the 115 Cong. § 202 (2017). 16 Stat. (2017). Since section 120.54(8), proposal. The issues identified by continued...

16 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

CONSTITUTIONAL REVISION tion, provides: “No person shall be deprived of in Article II, section 3, of the Florida Consti- from page 16 life, liberty or property without due process of tution: “The powers of the state government law, or be twice put in jeopardy for the same shall be divided into legislative, executive and offense, or be compelled in any criminal mat- judicial branches. No person belonging to one 6 The United States Supreme Court has af- ter to be a witness against oneself.” branch shall exercise any powers appertain- forded similar deference to an agency’s inter- 10 See Bd. of Optometry v. Florida Soc. of ing to either of the other branches unless ex- pretation of a regulation. See Auer v. Robbins, Ophthalmology, 538 So. 2d 878, 889 (Fla. pressly provided herein.” 519 U.S. 452 (1997), 1st DCA 1988) (stating that once a rule “has 12 See Bush v. Schiavo, 885 So. 2d 321, 332 been issued and acted or relied upon by the 7 See Jowanna Nicole Oates, Saying Good- (Fla. 2004) (observing that the non-delegation agency or members of the public in conduct- bye to Chevron and Auer? New Developments doctrine requires statutes to contain “ad- ing the business of the agency, the rule will in the Agency Deference Doctrine, 91 Fla. B. J. equate guidelines and criteria.”). be treated as presumptively valid, or merely 6 (June 2017), for an examination of recent 13 See Fla. J. Admin. Procs. Comm., 2017 An- voidable, and must be given legal effect until decisions criticizing the agency deference doc- nual Report, available at japc.state.fl.us; Fla. invalidated in a section 120.56 rule challenge trine and congressional efforts to overturn the Leg. Div. of Law Rev. & Info., Florida Legisla- proceeding.”). However, it should be noted ture – Regular Session 2017 Statistics Report, decisions. that section 120.56(2)(c) provides: “When any available at http://www.leg.state.fl.us/data/ 8 Section 120.68(7)(e), Florida Statutes, pro- substantially affected person seeks determi- session/2017/citator/Daily/stats.pdf. hibits a court from “substitut[ing] its judg- nation of the invalidity of a proposed rule 14 ment for that of the agency on an issue of pursuant to this section, the proposed rule is See Const. Revision Comm’n R. 5.4 (4) discretion.” See, e.g., Dreyer v. Fla. Real Estate not presumed to be valid or invalid.” (empha- (2017-2018). Comm’n, 370 So. 2d 95 (Fla. 4th DCA 1979). sis added). See § 16, Ch. 96-159, Laws of Fla. 15 See FLA. CONST. art. XI, §2(c). 9 Article I, section 9 of the Florida Constitu- 11 The separation of powers doctrine is found 16 See FLA. CONST. art. XI, §5(e).

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17 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

Agency Snapshot: Agency for State Technology by Rachelle Munson

Background: with both public and private sector, assuring that agency investments fit The Agency for State Technol- AST is able to maximize IT resources into an enterprise view of IT. ogy (AST), established in 2014, is and save taxpayer dollars by deliv- Florida’s newest state agency. AST ering more efficient and effective Chief Information Security was established to develop and pub- enterprise customer services to the Officer: lish information technology policy Sunshine State. AST holds as its Thomas Vaughn for the management of the state’s mission to achieve success through information technology resources, technology and its vision is to be Chief Data Officer: oversee the state’s essential tech- the national leader in government Burt Walsh nology projects, manage the State technology. Since rulemaking is not Data Center (SDC), and to house a matter of agency discretion, the Geographic Information Officer: Florida’s Chief Information Officer. agency initiates rulemaking as pre- Ekaterina Fitos Through collaborative partnerships scribed by applicable law. Based on the agency’s 2017-2018 regulatory Inspector General: plan, AST expects to implement rule- Tabitha McNulty making in substantive areas. In addition to various full-time Legislative Affairs and Commu- positions, including a general counsel nications: and senior attorney who oversee the Erin Choy Florida legal issues for the agency, a Technol- ogy Advisory Council was also estab- General Counsel: Lawyers lished within the agency to consider Anthony Miller and make recommendations to the Assistance Executive Director on such matters Governing Statutes and Rule: as enterprise information technol- Chapter 282, Florida Statutes ogy policies, standards, services, and Section 20.61, Florida Statutes Are drugs or alcohol architecture. Rule Division 74, Florida Administra- causing a problem tive Code Executive Director / Chief Infor- in your life? mation Officer: Headquarters Address and Con- Eric Larson was appointed as the tact Information: Are you overcome by Executive Director/Chief Information Agency for State Technology depression, stress Officer for AST on March 7, 2017. As 4050 Esplanade Way or psychological the Chief Information Officer (CIO), Suite 115 Mr. Larson sets information technol- Tallahassee, FL 32311 problems? ogy policy and direction for the State Phone: 850-412-6050 of Florida. The CIO is an advisor to [email protected] Completely the Governor on technology issues. Before joining the agency, Mr. Larson State Data Center Location: confidential was the Chief of Distributed Infra- 2585 Shumard Oak Boulevard help is available. structure at the Department of Tallahassee, FL 32399 (Ch. 397.482-486, F.S. 2002) Financial Services and led numer- Main Number: 850-413-9306 ous internal initiatives, in addition to architecting and implementing Public Records Custodian: Call a permanent multi-site Disaster Erin Choy Recovery for mainframe applications. 4050 Esplanade Way Florida Lawyers Together with the Governor’s Office of Suite 115 Policy and Budget, Mr. Larson focuses Tallahassee, FL 32311 Assistance, Inc. on bringing a “big picture” view of Email: [email protected] agency investments and strategies, Phone: (850) 412-6050 1-800-282-8981

18 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018 Law School Liaison Spring 2018 Update from the Florida State University College of Law by David Markell, Steven M. Goldstein Professor

This column highlights recent - Mykhaylo Vzevolodskyy, Scholarship recipients: Keeley accomplishments of our College of Attorney General—Consumer McKenna, Valerie Chartier-Ho- Law students. It also lists the rich set Protection gancamp, and Joshua Funder- of programs the College of Law has • The following students will be burke, and also to this year’s hosted and will be hosting during the working as administrative, en- McLear Scholarship recipients: spring 2018 semester. We hope section vironmental, or land use law ex- Jill Bowen, Kacey Heekin, Jen- members will join us for one of more terns this spring: nifer Mosquera, and Hannah of our upcoming programs. Rogers. - John Barr, Department of Eco- • We are delighted that several Recent Student Achievements nomic Opportunity - Taylor Birster, Tallahassee students have had their schol- arship accepted for publication: • Christina Behan, Stephen Cun- City Attorney James Brent Marshall, “Geoengi- ningham, William Hamilton, - Marlie Blaise, Public Employ- Stuart Nincehelser, and Guerline neering: A Promising Weapon or ees Relations Commission Rosemond have had the special an Unregulated Disaster in the - Shannon Brophy, Department opportunity this year to engage Fight Against Climate Change?,” of Health in externships with the Florida Michael Melli, “Policy Mecha- - Rachel Eilers, Department of Constitution Revision Commis- nisms, Precedent, and Author- Health sion, a body appointed every 20 ity For State Implementation of - Andrew Faris, Department of years to solicit, research, and Climate Change Agendas,” and process proposals for amending Health Jessica Farrell, “The Centen- the state constitution. Students - Kody Glazer, Leon County nial Shakeup: Is the National have assisted with legal re- Attorney Park Service losing its ability search, analysis, and redrafting - Mark Johnson, Department of to manage and create Aquatic of the proposals, and drafting Financial Services Preserves?,” will be published in of ballot measures for consid- - Giselle Justo, Department of 33:2 Journal of Land Use and eration by the Florida Supreme Transportation Environmental Law (forthcom- Court before being voted on by - Nico Kairies, Division of ing 2018). the public. Administrative Hearings - Annalise Kapusta, Division of Valerie Chartier-Hogancamp’s • Several students participated in Administrative Hearings note, “Analysis of Indirect and administrative, environmental, - Sarah Korkuc, Department of Cumulative Impacts: Do the Sierra or land use law externships in Financial Services Club v. FERC Opinions Signal a the Fall 2017 semester: - Ashlee Polfer, Blueprint Inter- Limitation of NEPA’s Reach?,” - Abrianne Brookins, Depart- governmental Agency was published in 32 Journal of Land Use and Environmental Law ment of Business and Profes- - Carly Simpson, Division of (2017). sional Regulation Administrative Hearings - Isabelle Campbell, Tallahassee - Tian Wu, Florida Housing • The Journal of Land Use and City Attorney Finance Corporation Environmental Law is pleased - Jessica Farrell, Earthjustice to announce that Volume 32:2 • The College of Law has created - Janaye Garrett, NextEra/ Spring 2017 Issue has been a new externship opportunity Florida Power & Light published and distributed. The - Julianne Haun, Attorney Gen- this spring for a student to work volume features articles from eral—State Programs with the lawyers at the Florida recent FSU College of Law Dis- - Kaitlynne Wilson, Attorney Association of Counties in Tal- tinguished Environmental Lec- General—State Programs lahassee on issues of importance turers Professor Carol Rose and - Cecilia Orozco, Executive to county attorneys throughout Professor Robert V. Percival. It Office of the Governor—Office the state. also includes articles from the of the General Counsel • Several students have earned College of Law’s Environmental - Jessica Rodriguez, Division of prestigious scholarships relating Law Without Courts Symposium Administrative Hearings to administrative, environmen- by Professor Eric Biber, Profes- - Michelle Snoberger, Florida tal, or land use law. Congratu- sor Robin Kundis Craig and Housing Finance Corporation lations to this year’s Goldstein continued...

19 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

LAW SCHOOL LIAISON Colloquium for student papers on Student Animal Legal Defense from page 19 Wednesday, April 4, 2018, in room Fund (SALDF) Recent Events A221 of the Advocacy Center. This Members of the SALDF attended Catherine Danley, Professor Erin is an opportunity for students to be the 25th National Animal Law Ryan, Professor Sarah E. Light, recognized for their research and Conference in Portland, Oregon. Professors Robert L. Glicksman writing achievements, for them to This three-day event included the and Emily Hammond, Profes- give a short presentation of their inaugural Animal Legal Defense sor David L. Markell, Professor work, and to get feedback on their Fund Student Convention. Top- Hannah J. Wiseman, Professor hard work. More information, ics included animals as victims of Christopher J. Walker, Profes- including the names of the student criminal offenses, animal sanctuar- sor Arden Rowell, and Professor presenters, will be announced. ies, and the worldwide growth of Mark Seidenfeld. The volume animal law. also features comments by Pro- Environmental Law Society Recent Events The SALDF hosted a screening of fessor Shi-Ling Hsu and Profes- “Unlocking the Cage” on Septem- sor Donna Christie. On September 26, 2017, the Envi- ber 27, 2017. This documentary fol- ronmental Law Society (ELS) orga- lows animal rights lawyer Steven Spring 2018 Events nized a career panel that featured Wise and The Nonhuman Rights professionals with diverse back- The College of Law has a full Project legal team in their unprec- grounds and impressive careers in slate of administrative law events edented court challenge to break Environmental law. Participants and activities on tap for the spring down the legal wall that separates included Jason Wiles, President semester. animals from humans. This event and CEO at 7G Environmental was open to the public and featured Compliance Management, LLC, Spring 2018 Environmental Dis- a Q & A with Kevin Schneider, Ronni Moore, staff attorney with tinguished Lecture an attorney with the Non-Human the House of Representatives, Anne Rights Project and a College of Thomas Merrill, Charles Evans Harvey-Holbrook, staff attorney at Hughes Professor of Law, Columbia Law alumnus. The following day, Save the Manatee, Bud Vielhauer, the SALDF hosted an animal law Law School presented our Spring general counsel with the Florida 2018 Distinguished Lecture, enti- panel for law students featuring Fish and Wildlife Conservation Kevin Schneider, Ralph DeMeo tled “The Supreme Court’s Reg- Commission, and Ralph DeMeo, ulatory Takings Doctrine: Com- (with Pets Ad Litem and the Ani- shareholder at Hopping, Green, mal Law Section of The Florida mon-Law Constitutionalism Runs and Sams. Aground.” Professor Merrill’s lec- Bar), and Professor Sam Weisman. ture on February 7, 2018. The ELS and the Student Animal The SALDF hosted a meeting Legal Defense Fund (SALDF) regarding Pet Trusts on October 19, Environmental Certificate and hosted Standing for Endangered 2017. FSU College of Law alum- Environmental LL.M. Enrich- Species on November 2, 2017. Anne nus Max Solomon, from Hueler- ment Lectures Harvey-Holbrook, staff attorney Wakeman Law Group, discussed from Save the Manatee, spoke how lawyers can help their clients Justin Pidot, Associate Professor regarding animal standing in other with Tenure, University of Denver financially plan for their four- countries versus their standing in legged and winged loved ones. Sturm College of Law, presented on the United States, with a focus on January 24, 2018. manatees. Every year, the Leon County Humane Society hosts Walk and Daniel Raimi, Senior Research The ELS and the SALDF part- Associate, Resources for the Wag: Humane Heroes. Humane nered with Pets Ad Litem (PAL) Heroes brings our community Future, and Lecturer, University for the Twelfth Annual Puppies in of Michigan Gerald R. Ford School together to speak for those who the Pool event. All donations from have no voice of their own. The of Public Policy, presented on Feb- the dog wash went to the City of ruary 21, 2018. SALDF created a team of over Tallahassee animal shelter. 16 members, both students and Mariana Fuentes, Assistant Pro- The ELS and the SALDF also alumni, and raised $900.00. fessor, Florida State University, worked with Pets Ad Litem as part The SALDF was awarded the Earth, Ocean and Atmospheric Sci- of the City of Tallahassee’s beau- United Fur Justice Award for its ence Department, will be speaking tification project. Pets Ad Litem contribution. on Wednesday, March 28, 2018, has adopted Easterwood Drive. from 12:30 – 1:30 p.m. in room 310. This effort saves taxpayer dollars Information on upcoming events by reducing the need for the city is available at http://law.fsu.edu/aca- Spring 2018 Environmental Stu- to pick up litter. The ELS and the demics/jd-program/environmental- dent Colloquium SALDF were glad to be a part of energy-land-use-law/environmental- The FSU College of Law Environ- helping beautify Tallahassee while program-events. We hope Section mental, Energy and Land Use Law changing people’s attitudes about members will join us for one or more program will hold its annual Spring litter. of these events.

20 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

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21 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

ADMINISTRATIVE LAW SECTION MEMBERSHIP APPLICATION (ATTORNEY) (Item # 8011001)

This is a special invitation for you to become a member of the Administrative Law Section of The Florida Bar. Membership in this Section will provide you with interesting and informative ideas. It will help keep you informed on new developments in the field of administrative law. As a Section member you will meet with lawyers sharing similar interests and problems and work with them in forwarding the public and professional needs of the Bar.

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22 Administrative Law Section Newsletter Volume XXXIX, No. 3 • March 2018

FLORIDA EVIDENCE CODE dence that is “commonly relied upon 120.57(1)(c), Florida Statutes, which from page 1 by reasonably prudent persons,” I allows hearsay to be used to sup- customarily adhere to the sapient port a finding of fact if the evidence advice from one of my esteemed col- would be admissible over objection in in which the Florida Evidence Code leagues, who proclaimed: “I consider civil actions. Evidence that meets a does not apply; there sure are a lot myself the most ‘reasonable prudent hearsay exception in sections 90.803 of rules about evidence!) But, if rules person’ in the room. Therefore, I must or 90.804, Florida Statutes, is quite of evidence are now to be used at the be sufficiently satisfied that I can rely likely reliable enough for the pre- presiding officer’s “discretion,” what upon the evidence in order to make siding officer to use as a basis for a becomes our evidentiary standard? my findings of fact.” factual finding.) Did Florida Industrial revise our So, how does Florida Industrial In sum, the Supreme Court in ground rules for administrative hear- fit into our chapter 120 evidentiary Florida Industrial did not revise ings? Has the Supreme Court laid framework? The Florida Industrial or modify the rules of evidence for out a new evidentiary barometer? ruling focuses on the second prong, administrative proceedings. Instead, Should Administrative Law Judges reliability. In other words, admin- the Supreme Court provided guid- (“ALJs”) and agency hearing officers istrative practitioners may use the ance to administrative practitioners now consider referencing the Florida Florida rules of evidence to attack and presiding officers on how to apply Evidence Code prior to excluding any or support whether documents or the Florida Evidence Code in the evidence? testimony are sufficiently reliable to context of chapter 120 evidentiary Actually, the precept presented in support a finding of fact. hearings. To be admissible, section Florida Industrial is rather straight- To explore how this concept works 120.569(2)(g) directs that evidence forward. The Supreme Court did not in practice, let’s consider the follow- must meet two criteria; it must be: tell us WHAT the rules of evidence ing scenario. Say that during an 1) relevant, and 2) reliable. The pro- are for administrative proceedings. administrative hearing, a party, who visions of the Florida Evidence Code It advised us HOW we may use them. is charged with misconduct, seeks to may be used to help determine the Administrative proceedings are introduce a photograph of dubious ori- reliability of documents or testimony governed by the Administrative Pro- gin, which he represents exonerates that is introduced into the record. cedure Act found in chapter 120, him of any wrongdoing. The opposing Florida Statutes. The admissibility of attorney might (appropriately) object Bruce Culpepper has served as evidence in administrative hearings and argue that the Florida Evidence an Administrative Law Judge since is articulated in section 120.569(2)(g), Code requires the necessary foun- 2015. Judge Culpepper attended the which states: dation to be laid before evidence is University of Florida for both his Irrelevant, immaterial, or unduly admitted in Florida courts. (In other undergraduate degree (history) and repetitious evidence shall be ex- words, a witness with knowledge his law degree. After graduating law cluded, but all other evidence of must testify that the photograph is school, Judge Culpepper began his a type commonly relied upon by a fair and accurate representation of law practice in the United States Air reasonably prudent persons in the the scene that it depicts.) Therefore, Force as a Judge Advocate General. conduct of their affairs shall be the photograph is simply not reliable In 1997, he returned to his home admissible, whether or not such enough for the ALJ (the most “reason- town of Tallahassee and entered evidence would be admissible in a able prudent person” in the room) to private practice where he concentrated trial in the courts of Florida. use as a basis for a factual finding. on commercial, administrative, Fla. Stat. (2017) (emphasis added). Thereafter, the ALJ, using his or her and appellate litigation. In 2010, So, there it is. Simply stated, to be discretion, might declare, “Objection Judge Culpepper went back into admissible in chapter 120 evidentiary well made! In light of Florida rules of public service and joined the Florida hearings, evidence must meet two evidence, the photograph is not reli- Department of Financial Services. requirements. It must be (1) relevant, able enough for me to admit under The following year, he moved to and it must be (2) reliable. section 120.569(2)(g). Therefore, I will the Florida Office of Insurance ALJs are tasked to make express not make any findings of fact based Regulation where he handled a findings of fact. In order to do so, ALJs on the information it might portray.” broad array of administrative must ensure that their findings are Conversely (and just as signifi- litigation and regulatory matters. based solely on the competent sub- cantly), a party might counter any Judge Culpepper is currently serving stantial evidence they allow into the objections to entering a photograph as a Judge Advocate in the Florida record. Whether a document or tes- by announcing that a witness who Army National Guard. Among Judge timony is “relevant” to the ultimate is familiar with the photograph will Culpepper’s community activities, he disputed issue is generally straight- authenticate the scene depicted in the has been involved in the William H. forward. (Although, often the rel- picture. Therefore, the photograph is Stafford Inns of Court, Leadership evancy/irrelevancy question is not reliable enough for the ALJ to admit Tallahassee, Boy Scouts, Florida Blue made clear until after all the evidence into the evidentiary record. (This Key Leadership Honorary Society, and is admitted.) As far as admitting evi- same concept can be seen in section the Tallahassee Camellia Society.

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