From the Chair The Use of the Florida Evidence Code in

See “Florida Evidence Code” page 23

From the Chair

by Robert Hosay

See “From the Chair,” next page

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

Vol. XXXIX, No. 3 Jowanna N. Oates and Elizabeth W. McArthur, Co-Editors March 2018

Newsleer

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

INSIDE:

Appellate Case Notes .................................... 3

DOAH Case Notes ........................................ 9

Constitutional Revision Commission

Administrative Law Update ....................... 14

Agency Snapshot: Agency for State

Technology................................................ 18

Law School Liaison

Spring 2018 Update from the Florida State

University College of Law ......................... 19

Administrative Law Section Membership

Application (Attorney) ............................... 22

I would like to shine a spotlight

on the Administrative Law Section’s

establishment of two awards to rec-

ognize and memorialize preeminent

professionals that work tirelessly in

our ﬁeld of administrative law. Estab-

lishing these awards is long overdue

and of great importance to substan-

tiate the signiﬁcance of the profes-

sionals working in administrative

law. You will not be surprised by who

provided the muscle and the work in

the trenches to get this project com-

pleted. Thank you, Jowanna N. Oates!

I look forward to nominating qualiﬁed

professionals for these two inaugural

awards now and in the future. The

two awards are the S. Curtis Kiser

Administrative Lawyer of the Year

Award and the Administrative Law

Section Outstanding Service Award.

The S. Curtis Kiser Administra-

tive Lawyer of the Year Award is

named after Senator S. Curtis Kiser,

a 1967 graduate of the University

of Iowa and a 1970 graduate of the

Florida State University College of

Law. Senator Kiser has a long and

distinguished career in public service

In January 2017, the Florida

Supreme Court issued its decision

in Florida Industrial Power Users

Group v. Graham, 209 So. 3d 1142

(Fla. 2017) (“Florida Industrial”). In

this case, the Supreme Court con-

sidered the Florida Public Service

Commission’s (“Commission”) deci-

sion not to apply the rule of witness

sequestration (“Rule”) in an admin-

istrative hearing. The Rule is found

in section 90.616, Florida Statutes.

The Commission asserted that it

had the discretion not to enforce the

Rule, regardless of the fact that it

is an established rule of evidence in

Florida civil and criminal courts.

The Supreme Court agreed with

the Commission and specifically

found that “the Florida Evidence

Code is not applicable to adminis-

trative proceedings.” Accordingly,

the Supreme Court ruled that the

Commission had the “discretion” to

refuse to apply a rule of evidence in

its administrative proceeding.

So, what is this “discretion” busi-

ness the Supreme Court imparts?

Florida Industrial conﬁrms that the

Florida Evidence Code does not apply

to administrative proceedings. We

knew that. (Ironically, for a process

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

FROM THE CHAIR

from page 1

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

Robert H. Hosay (rhosay@foley.com) .......................................................................................................... Chair

Garnett W. Chisenhall, Jr. (gar[email protected].ﬂ.us) ........................................................... Chair-elect

Brian A. Newman (brian@penningtonlaw.com) ...................................................................................Secretary

Bruce D. Lamb (blamb@gunster.com) ................................................................................................. Treasurer

Elizabeth W. McArthur ([email protected].ﬂ.us) ......................................................... Co-Editor

Jowanna N. Oates (oates[email protected].ﬂ.us) ................................ Immediate Past Chair and Co-Editor

Calbrail L. Banner, Tallahassee (cbanner@ﬂabar.org) .......................................................... 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.

Visit the Administrative Law Section’s Website:

http://www.flaadminlaw.org

to the State of Florida. His public ser-

vice includes: State Representative

(1972-1982); Senator (1984-1994);

Public Service Commission Nomi-

nating Council (1978-1994); General

Counsel for the Public Service Com-

mission; and Commissioner, Public

Employees Relations Commission.

During Senator Kiser’s legislative

service, he was the prime sponsor of

legislation that established the Flor-

ida Evidence Code and the Adminis-

trative Procedure Act. The S. Curtis

Kiser Administrative Lawyer of the

Year Award will be presented to a

member of The Florida Bar who has

made signiﬁcant contributions to the

ﬁeld of administrative law in Florida.

The Administrative Law Section

Outstanding Service Award will

be presented to a member of the

Administrative Law Section execu-

tive council (other than the chair)

who has provided outstanding leader-

ship for the Section.

It’s live! With great excitement

I invite you to visit the new and

improved Administrative Law Sec-

tion (ALS) website at http://ﬂaadmin-

law.org/. The technology committee,

headed by Paul Drake, worked dili-

gently over the past year to develop

a format and a plan for content that

supports the purpose and mission

of the Administrative Law Section.

In addition to Paul, I’d like to spe-

ciﬁcally highlight the hard work of

James Ross, Tabitha Harnage, Judge

Gar Chisenhall, and Judge Suzanne

Van Wyk for their dedicated and per-

sistent work to publish a website

that will serve our profession, our

members, and the public very well.

The updated website provides perti-

nent information in an efﬁcient and

effective manner. Browse the website

to access our respected ALS newslet-

ter, learn about our section and mem-

bership, and access resources helpful

to anyone working in our profession.

A huge thank you to hard work-

ing ALS executive council member

Tabitha G. Harnage for organizing

and supporting our most recent ALS

social events. Tabitha was able to

organize a fun and passionate group

to participate in the Tallahassee

Bar Association’s 22nd Annual Chili

Cook-Off. Thank you team ALS for

representing us well at this event!

I hope by reading this column you

have gained a more signiﬁcant appre-

ciation for some of the hard work

performed by so many of our section

members. Please do not hesitate to

contact me if you would like to get

involved. The professional value and

meaningful relationships will last

your entire career.

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-

ing—Waiver of Right

233 So. 3d 488 (Fla. 1st DCA 2017).

Denise Campbell worked at an

assisted living facility and found one

of the facility’s patients in the din-

ing hall unresponsive. Ms. Campbell

ordered the staff to place the patient

in his bed so that he could receive

CPR, but CPR was not performed

after it was discovered that the

patient had a “Do Not Resuscitate”

order on ﬁle. The patient died. Ms.

Campbell inaccurately reported that

the patient was found unresponsive

in his bed, not in the dining hall.

The Department of Health (DOH)

filed an administrative complaint

against Ms. Campbell, alleging that

she (1) inaccurately recorded the

event; and (2) falsified or altered

the patient’s records. The complaint

included an election-of-rights form,

notifying Ms. Campbell that she had

21 days to request a formal adminis-

trative hearing. DOH believed that

Ms. Campbell did not respond.

Ms. Campbell’s attorney submitted

an afﬁdavit stating that he person-

ally hand-delivered a request for a

formal hearing within 21 days. DOH

also filed an affidavit stating that

the Board of Nursing (Board) never

received a request for a formal hear-

ing. At DOH’s request, the Board

concluded that Ms. Campbell waived

her right to a formal administra-

tive hearing. The Board then held an

informal hearing. It issued a Final

Order concluding that Ms. Campbell

acted improperly, but increased the

recommended penalty from proba-

tion and a ﬁne to the revocation of

her license. Ms. Campbell appealed

the Board’s Final Order based on

the determination that she waived

her right to a formal administrative

hearing and the increased penalty.

The court held that the Board was

required to give Ms. Campbell an

evidentiary hearing on whether she

timely requested a formal hearing.

If the Board determines on remand

that Ms. Campbell did not waive her

right to a formal hearing, the court

directed that the case proceed to the

Division of Administrative Hearings.

If the Board determines that she did

waive her right, the court concluded

that the Board could penalize Ms.

Campbell via an informal hearing.

Next, the court addressed the

issue of the Board’s revocation of

Ms. Campbell’s license. Ms. Camp-

bell argued that the Board lacked

competent substantial evidence to

find aggravating factors sufficient

to impose the penalty of revocation.

However, the court found that the

permissible penalty range for falsify-

ing patient records—with or without

aggravating factors—included license

revocation. The court was thus unable

to reverse the Board’s penalty based

on the argument presented in Ms.

Campbell’s appeal, but reversed and

remanded the case for the Board to

conduct an evidentiary hearing on

whether she waived her right to a

formal administrative hearing.

Injunctions—Preservation of

Entitlement to Injunctive Relief

Dep’t of Health v. Bayfront HMA Med.

Ctr., 43 Fla. L. Weekly D96 (Fla. 1st

DCA Jan. 2, 2018).

The Department of Health (DOH)

and Galencare, Inc. d/b/a Northside

Hospital (Northside) appealed a non-

ﬁnal order enjoining Northside from

operating a provisional trauma cen-

ter and enjoining DOH from allowing

Northside to operate one prior to the

conclusion of any timely-ﬁled admin-

istrative proceeding challenging any

preliminary approval of Northside’s

application and any subsequent

judicial review. The injunction order

was issued by the trial court after a

temporary injunction was sought by

Bayfront HMA Medical Center, LLC

d/b/a Bayfront Health (Bayfront).

Bayfront sought the injunction on

the basis that DOH lacks authority

to accept a letter of intent (LOI) to

apply for approval to operate a new

trauma center in a Trauma Service

Area (TSA) that has no trauma cen-

ter position available (and therefore

no need), or to allow a provisional

trauma center to operate during the

pendency of an administrative chal-

lenge to the provisional approval of

the application.

The court reversed on the basis

that Bayfront failed to prove its

entitlement to temporary injunction

relief.

Regarding the required substan-

tial likelihood of success element, the

court concluded that there is no need

criterion at or before the provisional

review stage. As a result, the statute

does not require or permit DOH to

consider need until the onsite review

stage of the application process. Bay-

front therefore failed to prove sub-

stantial likelihood of success on its

claim that DOH lacks authority to

accept a LOI to apply for approval to

operate a new trauma center in a TSA

when the TSA has no need.

The court also rejected Bayfront’s

interpretation that Northside can-

not begin operations as a provisional

trauma center until the conclusion

of all administrative proceedings.

Section 395.4035, Florida Statutes,

allows any hospital that submitted

an application found acceptable by

DOH based on a provisional review

to be eligible to operate as a provi-

sional trauma center. While the stat-

ute also provides that a hospital that

wishes to protest a decision made by

DOH based on its review of applica-

tions or on the recommendations of

the site visit review team may do so

under chapter 120, such provisions do

not state what effect an administra-

tive challenge has on a provisional

trauma center beginning operation.

A stay on a provisional trauma cen-

ter’s operations, on the other hand,

would affect the statutory timeline

continued...

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

APPELLATE CASE NOTES

from page 3

and could endanger the viability of

the provisional trauma center, which

would be forced to sit idly while any

administrative proceeding concludes.

The court concluded that the statute

did not support the assertion that a

challenge requires the provisional

trauma center’s operations to be

stayed pending that challenge.

Insurance—Disapproval of Pro-

posed Endorsements

Sec. First Ins. Co. v. Fla. Ofﬁce of Ins.

Regulation, 232 So. 3d 1157 (Fla. 5th

DCA 2017).

Security First Insurance Com-

pany (Security First) submitted to

the Ofﬁce of Insurance Regulation

(OIR) policy endorsements to the con-

ditions section for its homeowners,

tenant homeowners, condominium

unit owners, and dwelling ﬁre insur-

ance policies, for OIR’s approval. The

new language would have restricted

policyholders’ ability to assign post-

loss benefits without having the

consent of all insureds, additional

insureds, and mortgagees named in

the policies.

OIR disapproved Security First’s

proposed endorsements because it

concluded they violated the intent

and meaning of section 627.411(a),

(b), and (e), Florida Statutes, and

unlawfully restricted the assignment

of post-loss beneﬁts. Security First

requested administrative review, and

the hearing ofﬁcer issued a report

and recommendations, upholding

OIR’s decision. OIR issued a Final

Order adopting the report and recom-

mendations. Security First appealed.

On appeal, Security First argued

that although a policy endorsement

could not require consent from an

insurer to authorize the assignment

of post-loss benefits, the case law

prohibited only endorsements requir-

ing the insurer’s consent. The court,

however, disagreed, stating that a

provision against the assignment of

an insurance policy did not bar the

assignment of post-loss beneﬁts. The

court concluded that “the right to

recover under an insurance policy is

freely assignable after loss.”

Security First also argued that

OIR’s Final Order should be reversed

due to numerous public policy con-

cerns, particularly the vested rights

of other parties who Security First

asserted should have “an equal voice

in such assignments to prevent

impairing their interests.” Security

First also expressed concern that

the assignment of less than all

rights would allow an assignor and

an assignee to enter split causes of

action suing the obligor. But the court

concluded that these public policy

concerns were for the Legislature,

and not the judiciary, to resolve. Thus,

the court afﬁrmed OIR’s Final Order.

Licensing—Agency Discretion to

Deny Exemptions for Disqualify-

ing Criminal Offenses

A.P. v. Dep’t of Children & Families,

230 So. 3d 3 (Fla. 4th DCA 2017).

This appeal was brought by a

licensed mental health counselor

in Florida, practicing since 1991,

who was disqualiﬁed in 1998 from

being able to work with children and

vulnerable adults under Florida’s

Level 2 employment screening stan-

dards after exposing himself to an

undercover ofﬁcer in a public park

and pleading no contest to a misde-

meanor. Appellant sought an exemp-

tion from this disqualiﬁcation because

he wanted to open an intensive outpa-

tient substance abuse program.

After the Department of Children

and Families (DCF) denied Appel-

lant’s request, he sought review

through an administrative hearing

pursuant to section 435.07(3)(c),

Florida Statutes. The ALJ issued a

recommended order, which included

a ﬁnding of fact that Appellant was

rehabilitated and that he no longer

presents a danger if employed in a

position of special trust caring for

children or vulnerable adults. The

ALJ concluded that DCF abused its

discretion and recommended the

exemption be granted.

The DCF Secretary adopted all of

the ALJ’s ﬁndings of fact in the Final

Order (including the ﬁnding of reha-

bilitation and not presenting a dan-

ger), but rejected the legal conclusion

that it would be an abuse of discretion

to deny the exemption, concluding

that DCF had discretion to deny the

exemption anyway. Without articulat-

ing a clear rationale for the decision,

DCF denied the exemption.

The Fourth District Court of Appeal

recognized that to reject an ALJ’s con-

clusion of law, “the agency . . . must

make a ﬁnding that its substituted

conclusion of law . . . is as or more rea-

sonable than that which was rejected

or modiﬁed” under section 120.57(1)(l),

Florida Statutes. The court found that

DCF’s adoption of the ALJ’s factual

ﬁndings of rehabilitation and not pre-

senting a danger conﬂicted with, and

could not be supported by, the legal

conclusion that the exemption could

nonetheless be denied.

The court stated that section

435.07(3)(a), Florida Statutes, autho-

rizes the Secretary, in articulating

the decision to reject the ALJ’s rec-

ommendation, to consider several

enumerated factors as to whether

an applicant presents a danger if his

employment were allowed. Because

the Secretary did not consider these

factors or state that he relied on any

rationale other than the “nature” of

Appellant’s underlying offense, the

court reversed and remanded the

matter to DCF for a decision consis-

tent with the court’s opinion and with

the ALJ’s ﬁndings already adopted by

DCF.

Mandamus Relief—Sufficiency

of Allegations Within Complaint

S.J. v. Thomas, 233 So. 3d 490 (Fla.

1st DCA 2017).

S.J. alleged that the Superinten-

dent removed him from his traditional

high school through a process called

“disciplinary reassignment,” and

required him to ﬁnish the school year

at either an alternative school or a vir-

tual school. S.J. requested a hearing,

which was held pursuant to sections

120.569 and 120.57, Florida Statutes.

A recommended order was issued,

recommending that S.J. be “discipli-

narily reassigned” for the remainder

of the school year. The School Board

then adopted the recommended order

continued...

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

APPELLATE CASE NOTES

from page 4

through a “Notice of Adoption of Rec-

ommended Order,” but did not render

a ﬁnal order. Nothing in the notice

indicated the School Board intended

it to operate as a ﬁnal order, or that it

had any intention to grant S.J. all of

the rights afforded by the Administra-

tive Procedure Act (APA).

S.J. ﬁled a petition for a writ of

mandamus, asserting that the School

Board had a legal duty to issue a

written ﬁnal order pursuant to the

APA because his “disciplinary reas-

signment” affected his substantial

interests. In granting the School

Board’s motion to dismiss, the trial

court determined the APA did not

apply to a “disciplinary reassign-

ment” because the Legislature did

not explicitly provide that a “disci-

plinary reassignment” falls under the

purview of the APA, unlike expulsion.

The First District Court of Appeal

disagreed, reversing the trial court’s

dismissal. The court determined that

S.J.’s complaint for mandamus relief

sufﬁciently alleged facts that entitled

him to mandamus relief, including

by showing that his “disciplinary

reassignment” was virtually indis-

tinguishable from expulsion and,

therefore, fell under the APA.

The court also determined S.J. suf-

ﬁciently alleged that the “disciplin-

ary reassignment” affected his sub-

stantial interests, ﬁnding his alleged

inability to attend a traditional school

satisﬁed the injury-in-fact standard,

and that this is the type of interest

the Education Code was designed

to protect. The court reversed and

remanded the case to the trial court

to issue an alternative writ of man-

damus directing the School Board to

show cause why the requested relief

should not be granted.

Public Records—Exemptions for

Local Government Risk Manage-

ment Claims Files

City of Homestead v. McDonough, 232

So. 3d 1069 (Fla. 3d DCA 2017).

Dr. James E. McDonough was

involved in an incident with an off-

duty police ofﬁcer. After the incident,

McDonough ﬁled a Notice of Intent

to file a claim against the City of

Homestead (City). While the Notice

of Intent was pending, McDonough

ﬁled a complaint against the police

ofﬁcer for defamation. The City was

not named in the complaint.

McDonough ﬁled a public records

request seeking ﬁve e-mails relating

to the City’s decision to defend the

police ofﬁcer in the defamation action,

the last of which was acknowledged

in open court by McDonough to be

conﬁdential, privileged, and exempt.

The trial court determined that the

City properly claimed the ﬁrst two

records as exempt based on the claims

ﬁle exception in section 768.28(16)(b),

Florida Statutes, but that the third

and fourth records, even though kept

in the risk management ﬁle, were not

confidential and exempt. The trial

court ordered the City to produce the

non-exempt records.

The Third District Court of Appeal

disagreed with the trial court, ﬁnding

that all of the documents requested

were privileged and not subject to

production pursuant to chapter

119, Florida Statutes, or section

768.28(16)(b). The court concluded

that no statutory exception to sec-

tion 768.28(16)(b) existed to allow

for production of records in the risk

management ﬁle, even where there

would be no harm if produced.

Accordingly, the court reversed the

part of the order ﬁnding some of the

claims ﬁle records non-exempt, con-

cluding that that all of the records in

the City’s risk management ﬁle were

conﬁdential and exempt from disclo-

sure until such time as the claims

related to McDonough’s Notice of

Intent have been resolved.

Public Records—Number of Pri-

vate Car Service Pickups and

Fees Paid to Broward County is

Public

Rasier-DC, LLC v. B & L Serv., Inc.,

43 Fla. L. Weekly D145 (Fla. 4th DCA

Jan. 10, 2018).

Rasier-DC, LLC, a subsidiary of

Uber Technologies, Inc. (Uber), and

Broward County entered into a license

agreement that permitted Uber to

provide its services at the airport and

Port Everglades. The license agree-

ment mandated that Uber report to

the county the number and time of

pickups and drop-offs at the airport

and Port Everglades, the identity of

the driver, and the fee in each of those

zones. In exchange, the county was

required to maintain as conﬁdential

Uber’s trade secret information and

assert a trade secret exemption to

any public records requests under the

Florida Public Records Act.

Yellow Cab made a public request

to the county for all reports or docu-

ments containing pickup information

by Uber, as well as the amount owed

to the county for those trips for a sev-

eral year period. The county refused

to release unredacted information

without authorization from Uber,

claiming much of the information was

subject to a trade secret exemption.

Yellow Cab ﬁled a complaint against

the county alleging a violation of

the Public Records Act and sought

the unredacted information. Uber

intervened. The court held an eviden-

tiary hearing and ordered that the

information was subject to the trade

secret exemption. Yellow Cab moved

for rehearing and the court ruled

that the number of pickups, in the

aggregate, as well as the amount of

money paid to the county as a usage

fee at the airport was not trade secret

information and not exempt from

disclosure. Other more speciﬁc infor-

mation, such as the speciﬁc locations

and dates of the pickups, as well as

the identity of the drivers, was trade

secret information.

Uber appealed, arguing the trial

court abused its discretion in order-

ing the production of the number of

pickups and amount of money paid to

the county. The court rejected Uber’s

argument, reasoning that a corpora-

tion’s sales volume, income state-

ments, and gross sales were not trade

secrets and cited to a federal district

court order in California that con-

cluded Uber competitor Lyft’s com-

missions and revenues on certain

products were not trade secrets. In

addition, the court reasoned that

Uber did not derive independent eco-

nomic value from the fees given the

county or the total number of Uber

continued...

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

pickups, and that disclosing such

information would not provide Yel-

low Cab with an advantage. Finally,

the court noted that public records

cannot be made private based on a

promise of the government, citing

National Collegiate Athletic Asso-

ciation v. Associated Press, 18 So. 3d

1201, 1208 (Fla. 1st DCA 2009). Thus,

the court ordered the county to pro-

duce the redacted records providing

the fees given the county and the

total number of Uber pickups.

Reimbursement for Medicaid

Funds for Hospitals—Mootness

of Petitions for Administrative

Hearing

Sarasota Cnty. Pub. Hosp. Dist. v.

Agency for Health Care Admin., 230

So. 3d 973 (Fla. 1st DCA 2017).

In a consolidated appeal, in which

Sarasota County Hospital District

served as the lead appellant, sixty-

seven Petitioners (collectively, Hos-

pitals) sought administrative hear-

ings pursuant to section 120.57(1),

Florida Statutes, after the Agency for

Health Care Administration (AHCA)

announced its rates of reimburse-

ment of Medicaid funds for services

provided by hospitals for outpatient

services for the 2016-17 ﬁscal year.

AHCA dismissed the Hospitals’ peti-

APPELLATE CASE NOTES

from page 5

tions with prejudice. The First Dis-

trict Court of Appeal reversed the

orders of dismissal, and remanded for

the grant of formal hearings pursu-

ant to section 120.57(1).

Sarasota County Hospital District

(as representative of the Hospitals)

alleged that for ﬁscal year 2016-17,

the Florida Legislature passed zero

Medicaid outpatient rate reductions

and appropriated sufﬁcient funds to

reimburse the Hospitals at a rate

substantially higher than AHCA’s

posted reimbursement rates; yet,

AHCA, on its own initiative, elected

to implement drastic rate reductions

for the year, resulting in a signiﬁcant

reduction of funding for the Hospi-

tals. The applicable rates were not

posted by AHCA until after the start

of the ﬁscal year on July 11, 2016, and

then were revised and republished

on August 10, 2016. The rates, which

were alleged to be greatly reduced

from previous years, took effect for all

Medicaid outpatient hospital provid-

ers on July 1, 2016.

AHCA dismissed the Hospitals’

petitions, ﬁnding the rates of reim-

bursement were not “final agency

action” until after AHCA audited

the Hospitals’ requested reim-

bursements, which would occur in

the future. AHCA relied on section

409.908(1)(f)1.

Florida Statutes,

which provides a point of entry for

the Hospitals “to correct or adjust the

calculation of the audited hospital”

rate, and on section 409.908(1), which

does not allow Hospitals to chal-

lenge unaudited rates on the basis

that they are preliminary in nature.

AHCA went on to ﬁnd that, even if the

Hospitals were entitled to challenge

unaudited rates, AHCA lacked juris-

diction to adjust the Hospitals’ rates,

due to section 409.905(6)(b)1., which

prohibits AHCA from making any

further adjustments after October

31 of the ﬁscal year. AHCA concluded

that this therefore rendered the Hos-

pitals’ claims moot.

Given the posture, the court

accepted the allegations of the peti-

tion as true and reviewed AHCA’s

statutory interpretations de novo.

The court determined that section

409.908(1)(f)1. only spoke to audited

reimbursement requests, was silent

as to the pre-audit period, and thus,

did not preclude formal administra-

tive challenge to the Medicaid reim-

bursement rates set by AHCA prior

to agency auditing.

The court further disagreed that

the matter was moot after October 31,

2016, even though the Hospitals’ peti-

tions were ﬁled several months before,

ﬁnding that section 409.905(6)(b)1.

applied to challenges of unaudited

rates as well because, as a practical

matter, audits were not completed by

such an early date in the ﬁscal year.

The court found AHCA’s inter-

pretation to be a misreading of the

statutes, concluding that the substan-

tial interests of a party entitled to

Medicaid reimbursement are affected

at the time an unsatisfactory rate is

continued...

CALL

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 (oates.jowanna@leg.state.ﬂ.us). Please help us continue

our tradition of advancing the practice of administrative law by authoring an article for

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FOR

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

APPELLATE CASE NOTES

from page 6

announced, as that rate takes effect

immediately and reimbursements

which are made prior to auditing are

based on that rate. Accepting as true

the Hospitals’ allegation that the

methodologies used to set the rates

are not subject to change during the

auditing process, the court held that

the rate becomes ﬁnal at the time it

is announced, and therefore is subject

to challenge.

Rule Challenge—Agencies Must

Follow Rulemaking Procedure

When Repealing Existing Rules

Dep’t of Bus. & Prof’l Reg. v. Dania

Entmt. Ctr., LLC, 229 So. 3d 1259

(Fla. 1st DCA 2017).

The Department of Business and

Professional Regulation, Division of

Pari-Mutel Wagering (DBPR) pub-

lished a notice of proposed rulemak-

ing to repeal rules 61D-11.001(17)

and 61D-11.002(5) and to adopt a

new rule that would prohibit player

banked games established by the

house. DBPR initially concluded that

no statement of estimated regula-

tory costs (SERC) was necessary

because the proposed rules would

not create a ﬁnancial impact greater

than $200,000. Several cardrooms

submitted a good-faith based lower

cost regulatory alternative (LCRA)

proposal, estimating that the prohi-

bition on designated player games

would cost them more than $87 mil-

lion over ﬁve years. The LCRA stated

this increased cost could be avoided

if DBPR did not repeal the rules.

DBPR published a notice of change

that withdrew the proposed rule,

but still proposed repealing rules

61D-11.001(17) and 61D-11.002(5).

A number of cardrooms ﬁled peti-

tions challenging the validity of the

proposed rule changes. After a formal

hearing, the ALJ issued a Final Order

concluding that the repeal of rules

61D-11.001(17) and 61D-11.002(5)

was an invalid exercise of delegated

legislative authority. The ALJ rea-

soned that the repeal of the rules met

the deﬁnition of a “rule” because the

repeal would have implemented new

DBPR policy with regard to desig-

nated player games. The ALJ found

that DBPR failed to materially follow

rulemaking procedures when it did

not ﬁle a SERC in response to the

cardrooms’ LCRA, as section 120.541,

Florida Statutes, requires. Finally,

the ALJ concluded that the repeal of

the rules exceeded DBPR’s rulemak-

ing authority and enlarged, modiﬁed,

or contravened the law implemented,

because DBPR did not have the abil-

ity to deﬁne an “authorized game”

beyond the deﬁnition found in sec-

tion 849.086, Florida Statutes. DBPR

appealed.

On appeal, the court held that

DBPR’s proposed repeal of rules

61D-11.001(17) and 61D-11.002(5)

was a “rule.” The court cited section

120.52(16), Florida Statutes, and

noted that a rule repeal constitutes

a rule where it has the effect of cre-

ating or implementing a new rule or

policy, or where it, in and of itself,

creates rights and adversely affects

others. Here, DBPR’s proposed rule

would have adversely affected the

cardrooms’ rights by giving DBPR

discretion to approve or deny internal

controls for designated player games

and the “net effect” of the repeal

would have implemented DBPR’s

new policy of prohibiting all desig-

nated player games.

In addition, the court held that

DBPR failed to prepare a SERC as

required by section 120.541. Thus,

the repeal of the rule was an invalid

exercise of delegated legislative

authority.

However, the court did not afﬁrm

the ALJ’s conclusion that DBPR

did not have the authority to repeal

the rules. Because DBPR is autho-

rized to regulate cardroom behavior

including the rules for designated

player games, it had the author-

ity to further deﬁne the term “des-

ignated player game” and provide

additional guidance and clarity to

the cardrooms.

Accordingly, the court afﬁrmed the

ALJ’s Final Order concluding that

the proposed repeal of the rules was a

rule and that the proposed rule repeal

was invalid because DBPR failed

to follow the statutorily required

rulemaking procedures. The court,

however, rejected the portion of the

Final Order that concluded DBPR

lacked the authority to repeal the

rules.

Standing—Jurisdictional

Requirements to Challenge

Repeal of Agency Rule

K.M. v. Dep’t of Health, 43 Fla. L.

Weekly D37 (Fla. 3d DCA Dec. 27,

2017).

In 2015, the Department of Health

(DOH) ﬁled a notice of proposed rule-

making to repeal rule 64C-4.003,

which required pediatric cardiac facil-

ities approved by Children’s Medical

Services (CMS) to comply with cer-

tain standards. DOH asserted that

it was repealing the rule because it

exceeded its statutory authority to

regulate pediatric care facilities.

K.M. is a beneﬁciary of CMS who

requires pediatric cardiac services

to treat a serious heart condition.

She ﬁled a petition for determina-

tion of invalidity of proposed rule,

alleging that DOH’s proposed repeal

of the rule would reduce the quality

of care available in the CMS pro-

gram and was an invalid exercise

of delegated legislative authority.

The ALJ held a ﬁnal hearing, dur-

ing which two pediatric cardiologists

called by K.M. testiﬁed about the risk

of decreased quality of care provided

by CMS clinics following a repeal

of rule 64C-4.003’s standards. The

ALJ issued a Final Order dismissing

K.M.’s petition, concluding that K.M.

lacked standing because she failed to

prove the proposed rule repeal would

have a real or immediate effect on the

quality of care available in the CMS

network. K.M. appealed.

The court observed that section

120.56(1), Florida Statutes, requires

K.M. to prove she will be “substan-

tially affected” by the repeal of rule

64C-4.003. To demonstrate that she

is substantially affected, K.M. was

required to show that the repeal

would result in a real and immediate

injury in fact and that K.M’s interest

is within the zone of interest to be

protected or regulated.

The court held that K.M. failed

to meet the real and immediate

continued...

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

APPELLATE CASE NOTES

from page 7

injury prong, because her prospec-

tive injury was based on speculation

and conjecture. The repeal of the

rule did not have the direct effect of

reducing the quality of care provided

by CMS-approved providers, and

the court reasoned that it was not

“readily apparent” that those pro-

viders would stop providing quality

care simply because the rule was

repealed. In addition, the court

noted that K.M.’s witnesses’ failed

to offer unqualiﬁed testimony that

the repeal of the rule would lead to

decreased quality of care. Instead,

the testimony showed that although

a risk of decreased quality of care

existed, there was no evidence that

the facilities would lower their stan-

dards of care due to the rule’s repeal.

The court afﬁrmed.

In dissent, Judge Emas wrote

that the court should have reversed

the ALJ’s Final Order dismissing

the petition. Judge Emas concluded

that the record and expert testimony

showed that K.M. had demonstrated

sufﬁcient evidence that the quality of

her future care from CMS-approved

providers would be reasonably dimin-

ished due to the repeal of the rule.

He also reasoned that standing to

challenge an agency rule was broader

than the traditional notion of stand-

ing and that this broad standing was

essential to permit citizens, such as

K.M., to initiate challenges to rule-

making that exceeded delegated leg-

islative authority.

Trauma Center Application and

Selection Process—Mootness

of Petition for Administrative

Hearing

Pub. Health Tr. of Miami-Dade Cnty.,

Fla. v. Dep’t of Health, 230 So. 3d 992

(Fla. 1st DCA 2017).

The Public Health Trust of Miami-

Dade County, Florida d/b/a Jackson

South Community Hospital (Jack-

son South) and Aventura Hospital

& Medical Center (Aventura) both

applied to the Department of Health

(DOH) to operate a Level II trauma

center in the same region during the

2014-2016 application cycle. DOH

accepted Aventura’s application and

granted it provisional approval to

operate a Level II trauma center in

the region. Jackson South’s applica-

tion was denied and it challenged

DOH’s denial of its application. The

ALJ entered a Recommended Order

concluding that Jackson South sub-

mitted an acceptable application, was

in substantial compliance with the

statutes, and should be approved

to operate as a provisional Level

II trauma center until the conclu-

sion of the 2014-2016 application

cycle. DOH and one of the existing

trauma centers (who had intervened

in the administrative proceedings)

ﬁled exceptions to the Recommended

Order.

During the 2015-

2017 application cycle,

Jackson South ﬁled an

application to operate

a Level II trauma cen-

ter in the same area.

DOH granted Jack-

son South provisional

approval to operate a

Level II trauma center.

The intervenor then

moved to dismiss Jack-

son South’s adminis-

trative challenge to

the denial of its ﬁrst

application as moot

because DOH had

granted Jackson South

provisional approval

based on the second application. DOH

entered a Final Order dismissing

Jackson South’s petition as moot, and

Jackson South appealed.

Jackson South argued on appeal

that DOH was obligated to render

a substantive determination on the

merits of its petition challenging the

denial of its first Level II trauma

application. The intervenor argued

that Jackson South had abandoned

its ﬁrst application and that it could

not maintain multiple active appli-

cations at the same time. The court

disagreed, holding that the statutes

and rules did not prevent Jackson

South from ﬁling a second application

while challenging DOH’s denial of its

ﬁrst application.

The court also reasoned that Jack-

son South’s provisional licensure dur-

ing the 2015-2017 application cycle

did not moot its challenge to DOH’s

denial of its first application filed

during the 2014-2016 application

cycle. The denial of Jackson South’s

first application would prevent it

from competing with Aventura for

the sole available seven-year trauma

center license in the region. If DOH

reversed its denial, either Jackson

South or Aventura would be eligible

to receive the seven-year license. But

if DOH did not reverse its denial

of Jackson South’s ﬁrst application

and granted Aventura the seven-

year license, Jackson South’s second

application would likely be denied

because the region needed only one

trauma center. Because DOH would

not permit Jackson South to compete

against Aventura for the ﬁnal trauma

center spot using Jackson South’s

second application, Jackson South’s

petition challenging DOH’s denial of

Jackson South’s ﬁrst application was

not moot. Thus, the court reversed

DOH’s Final Order dismissing Jack-

son South’s petition for administra-

tive hearing as moot and remanded

for further proceedings.

Tara Price and Larry Sellers

practice in the Tallahassee Ofﬁce of

Holland & Knight LLP.

Gigi Rollini and April Caminez-

Bentley practice with Messer

Caparello, P.A., in Tallahassee.

24/7 Online &

Downloadable CLE

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

DOAH CASE NOTES

Substantial Interest Hearings

Javier A. Muniz-Pagan v. Universal

City Development Partners, d/b/a

Universal Studios Orlando, Case No.

17-2653 (Recommended Order Oct.

6, 2017).

FACTS: Javier A. Muniz-Pagan is a

33-year-old disabled male who uses

an electric wheelchair. Universal City

Development Partners, d/b/a Univer-

sal Studios Orlando (“Universal Stu-

dios”) owns, operates, and manages

entertainment parks in Orlando. On

July 9 and 11, 2016, Universal Stu-

dios did not permit Mr. Muniz-Pagan

to join the queues for the following

attractions: Skull Island: Reign of

Kong; E.T. Adventure; Jurassic Park

River Adventure; and Dudley Do-

Right’s Ripsaw Falls. According to

Mr. Muniz-Pagan, Universal Stu-

dios employees told him that power

wheelchairs could not be allowed in

the queues because they would be

a safety hazard if they lost power.

Universal Studios publishes a Rid-

ers Guide for its patrons and has an

internal operating document setting

forth general operating procedures

pertaining to guests with disabilities.

Both documents demonstrate that

Universal Studios provides unre-

stricted access to its attractions for

patrons operating manual wheel-

chairs. However, those same docu-

ments also demonstrate that Uni-

versal Studios provides no access to

its attractions for patrons operating

electric wheelchairs. If a patron using

an electric wheelchair refuses or is

unable to transfer to a manual wheel-

chair provided by Universal Studios,

then Universal Studios offers for that

patron to use the exit ramp to access

an attraction. Mr. Muniz-Pagan ﬁled

a complaint with the Florida Com-

mission on Human Relations, for

unlawful discrimination based on

disability. After FCHR’s investiga-

tion, Mr. Muniz-Pagan ﬁled a petition

for an administrative hearing, and

FCHR transmitted the case to the

Division of Administrative Hearings.

OUTCOME: The ALJ noted that

the Americans with Disabilities Act

(“the ADA”) makes no distinction

between power-driven and manu-

ally operated wheelchairs. An entity

subject to the ADA can avoid making

a reasonable modiﬁcation to its poli-

cies or procedures to accommodate

such devices only when the entity

can demonstrate that the necessary

modification would fundamentally

alter the nature of the good or service

at issue. The ALJ concluded that Uni-

versal Studios “offered no evidence

that would support a finding that

allowing power-driven wheelchairs

in its attraction queues would fun-

damentally alter the services, facili-

ties, privileges, advantages, or accom-

modations that it provides to its

patrons.” The ALJ further concluded

that “[i]n the absence of evidence

that it would fundamentally alter

the nature of its services to allow

attraction queue access to patrons

who operate power-driven wheel-

chairs, [Universal Studio]’s practice

of directing such patrons to the exit

ramp seems to be the practical equiv-

alent of telling these patrons ‘to go

around to the back.’” Accordingly, the

ALJ recommended that FCHR enter

a ﬁnal order ﬁnding that Universal

Studios subjected Mr. Muniz-Pagan

to unlawful discrimination by not

allowing him to use his power-driven

wheelchair in attraction queues at its

theme park.

Pam Stewart, as Comm’r of Educ. v.

Silva of South Fla., Inc., d/b/a New

Horizons (7502), and Yudit Silva,

Case No. 17-3898SP (Recommended

Order Dec. 11, 2017).

FACTS: Silva of South Florida, Inc.

(“SSF”), is a nonprofit corporation

that operated a private school known

as New Horizons (“the School”). Yudit

Silva served as the School’s principal

or administrator. The Department

of Education (DOE) administers the

Gardiner Scholarship Program and

the John M. McKay Scholarships

for Students with Disabilities Pro-

gram. In addition, DOE has some

administrative responsibilities for

the Florida Tax Credit Scholarship

Program. The School participated

in the three programs and received

scholarship funds paid on behalf of

its students. On March 30, 2017,

Pam Stewart, as Commissioner of

Education, issued an Administra-

tive Complaint against SSF and Ms.

Silva, giving notice that Ms. Stewart

intended to end the School’s partici-

pation in the aforementioned scholar-

ship programs based on allegations of

fraudulent activity.

OUTCOME: The Administrative

Law Judge (“ALJ”) recommended that

the Commissioner enter a ﬁnal order

revoking the School’s participation

in the scholarship programs. In the

course of doing so, the ALJ addressed

the argument by SSF and Silva that

the standard of proof should be clear

and convincing evidence because the

case amounted to a penal proceed-

ing. The ALJ concluded as follows:

“This argument is not without merit,

for a proceeding to revoke a private

school’s participation in a scholarship

program has punitive overtones, to

say the least. But a school which is

prohibited from receiving (through its

students – the school’s beneﬁt is indi-

rect) these scholarship funds is not

precluded from operating as a private

school; unlike a licensee whose license

is revoked, the school may keep its

doors open. Further, a decision to

revoke a private school’s participa-

tion in a scholarship program does

not take scholarship beneﬁts away

from any of its students (to whom

the scholarships are awarded); they

are free to continue receiving their

scholarships, so long as they transfer

continued...

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

DOAH CASE NOTES

from page 9

to another school. The undersigned

concludes that participation by a pri-

vate school in the Gardiner, McKay,

and FTC scholarship programs is

not a vested right or even an entitle-

ment, but a kind of privilege, namely

that of selling a product (education)

to customers being subsidized by the

state to make the purchase. Depriva-

tion of participation, therefore, is not

a sanction, but rather amounts to a

loss of eligibility to continue enjoying

an exceptional commercial advan-

tage. Such deprivation determines

the school’s substantial interests, but

is not punitive in character.”

Dep’t of Bus. & Prof’l Reg., Div. of

Pari-mutuel Wagering v. Summer

Jai-Alai P’ship, Case No. 17-3727

(Recommended Order Dec. 12, 2017)

FACTS: Summer Jai-Alai Partner-

ship (“Summer Jai-Alai”) has held

a summer jai-alai permit in Miami-

Dade County for more than 35 years,

the result of converting an earlier

greyhound racing permit into a sum-

mer jai-alai permit. In December

2016, Summer Jai-Alai applied for

a 2017-18 operating license based

on the permit, expressly identifying

the proposed location of the summer

jai-alai performances as a location in

Dania, Florida—which is outside of

Miami-Dade County, but is located

less than 35 miles from the location it

had previously used in Miami-Dade.

On March 10, 2017, the Depart-

ment of Business and Professional

Regulation Division of Pari-mutuel

Wagering (“the Division”) issued the

license. Following a complaint from

the landlord of Summer Jai-Alai’s

Miami-Dade County location, how-

ever, the Division determined that

it had issued the license in error. In

a notice of intent to withdraw the

license, the Division did not allege

that Summer Jai-Alai had violated

any statute or rule, but instead stated

simply that the license was issued

“in error as [Summer Jai-Alai] is not

authorized to operate summer jai-alai

performances via the Permit outside

of Miami-Dade County.”

Summer Jai-Alai timely requested

a formal administrative hearing

under sections 120.569, 120.57(1),

and 120.57(1)(e), Florida Statutes,

and the matter was referred to the

Division of Administrative Hearings.

OUTCOME: An Administrative Law

Judge (“ALJ”) recommended that the

Division enter a ﬁnal order dismiss-

ing the notice of intent to withdraw

Summer Jai-Alai’s license.

The ALJ observed that a purported

“withdrawal” of an already-issued

license is a legal nullity, unless the

invalidation is authorized by stat-

ute or rule. The Division claimed it

was permitted to withdraw or revoke

the license under section 550.0745,

Florida Statutes, which generally

authorizes the conversion to a sum-

mer jai-alai permit and provides that

the permittee may operate within its

original county. However, the ALJ said

this statute must be read together

with section 550.475, Florida Stat-

utes, which authorizes a pari-mutuel

permitholder to lease its facility to

any other holder of the same class

permit when located within a 35-mile

radius of each other—not limited to

the original county. Indeed, the ALJ

observed that the Division had previ-

ously interpreted section 550.475 in

that exact way, but at some point in

time changed its position. Thus, the

ALJ rejected the Division’s argument

that as applied to converted permits

like Summer Jai-Alai’s, the statutes

only authorized relocation up to 35

miles within the original county.

In addition, in what was described

as a close question, the ALJ found

that Division’s notice of intent to

withdraw the license amounted to

an unadopted agency statement that

qualiﬁed as a rule that deprived hold-

ers of converted permits of the ben-

eﬁt of section 550.475. The ALJ also

rejected any contention by the Divi-

sion that rulemaking was not feasible

or practicable.

Disciplinary/Enforcement

Actions

Dep’t of Bus. & Prof’l Reg., Div. of Pari-

Mutuel Wagering v. Areci Robledo,

Case Nos. 17-4870PL, 17-4871PL,

17-4872PL, & 17-4873PL (Recom-

mended Order Dec. 27, 2017).

FACTS: Areci Robledo (“Ms. Robledo”

or “Respondent”) holds a license

authorizing her to train greyhounds

in Florida. The Department of Busi-

ness and Professional Regulation,

Division of Pari-Mutuel Wagering

(“the Division”) served Ms. Robledo

with four administrative complaints

alleging that she impermissibly med-

icated or administered prohibited

substances to racing greyhounds for

which she was the trainer of record

for races held at Palm Beach Ken-

nel Club between September 27,

2016 and January 28, 2017. During

the course of the ﬁnal hearing, Ms.

Robledo presented an exhibit pur-

portedly consisting of photographs

taken at the Palm Beach Kennel

Club. The Division opposed admis-

sion of those photographs, arguing

that they had not been provided to

the Division prior to the hearing,

they had not been authenticated,

and they were irrelevant. After the

ﬁnal hearing, the ALJ became aware

of another ALJ’s ruling in McClellan

& Nemeth v. Department of Business

and Professional Regulation, Division

of Pari-Mutuel Wagering, that the

Division’s urine sampling procedures

were based on an unadopted rule.

OUTCOME: The ALJ accepted the

photographs into evidence. In doing

so, she explained as follows: “As the

Supreme Court of Florida recently

observed in Florida Industrial Power

Users Group v. Graham, 209 So. 3d

1142, 1146 (Fla. 2017), the Florida

Evidence Code is not applicable to

administrative proceedings, and

administrative agencies therefore

possess the discretion whether to

require the parties to strictly adhere

to the evidentiary rules established

in chapter 90, Florida Statutes. Here,

because Respondent appeared pro se

and is not familiar with evidentiary

principles regarding authentication;

because the photographs, if authen-

tic, are tangentially relevant to show

general conditions present at the

PBKC, albeit not necessarily on the

dates on which the greyhounds that

continued...

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

continued...

DOAH CASE NOTES

from page 10

are the subject of these proceedings

raced; and because [the Division] was

able to conduct cross-examination at

the ﬁnal hearing regarding the photo-

graphs, the undersigned determines

that they should be, and therefore

are, admitted into evidence. However,

for the reasons discussed herein, they

have been given minimal weight.”

As for the McClellan ruling and its

impact on this case, the ALJ explained

that the “[k]ey to the ALJ’s deter-

mination in McClellan that urine

sampling procedures used in that

case constituted an unadopted rule

was [the Division]’s stipulation that:

‘[t]he Division and its representatives

are still following the protocols and

procedures outlined in Section 3 of

the 2010 Manual as its protocol for

sampling racing greyhounds’ urine.’

By contrast, in the instant proceed-

ing, the parties did not stipulate or

otherwise assert that the sampling

procedures used to collect and store

the urine constitute an unadopted

rule that violates section 120.54(1)(a),

and the evidence presented in these

proceedings was not sufficiently

detailed to enable the undersigned to

determine whether these procedures

were, in fact, substantially similar or

identical to those in Section 3 of the

2010 Manual. Accordingly, under the

existing record in these proceedings,

the undersigned is not able to make

a finding that the urine sampling

procedures used in these cases con-

stitute an unadopted rule on which

[the Division] would not be entitled

to rely as a basis for agency action.

However, the undersigned is keenly

aware that section 120.57(1)(e) pro-

hibits both the ALJ and the agency

from taking agency action based on

an unadopted rule. Accordingly, if [the

Division] believes that additional evi-

dence needs to be presented in these

proceedings to enable salient ﬁndings

of fact to be made on this issue in

these cases, it may, before entering

the ﬁnal orders, remand these pro-

ceedings to the undersigned with a

request that the evidentiary hearing

be re-opened to take additional evi-

dence on this issue, that additional

ﬁndings of fact on this issue be made,

and that a recommended order after

remand be entered.” Ultimately, the

ALJ recommended that the Division

enter ﬁnal orders imposing ﬁnes and

suspensions based on Ms. Robledo’s

violations of section 550.2451, Florida

Statutes.

Rule Challenges

Fla. Society of Ambulatory Surgi-

cal Ctrs., Inc., et al. v. Dep’t of Fin.

Servs., Div. of Workers’ Comp., et al.,

Case Nos. 17-3025RP, 17-3026RP,

& 17-3027RP (Final Order Nov. 30,

2017).

FACTS: The Department of Finan-

cial Services, Division of Workers’

Compensation (“DWC”), resolves dis-

putes between health care providers

and insurance carriers over reim-

bursement for health care services

provided to injured workers, pursuant

to section 440.13(7), Florida Statutes.

On December 7, 2016, DWC proposed

amendments to existing rules regard-

ing the reimbursement dispute reso-

lution process, and also proposed to

adopt new rule 69L-31.016, entitled

“Reimbursement Disputes Involving

a Contract or Workers’ Compensa-

tion Managed Care Arrangement or

Involving Compensability or Medical

Necessity.” Subsection (1) of the pro-

posed rule provided that DWC would

no longer resolve reimbursement dis-

putes between health care provid-

ers and carriers when: (1) a contract

established the amount of reimburse-

ment to the health care provider; or

(2) health care services were provided

to the injured worker via a workers’

compensation managed care arrange-

ment. Under subsection (2) of the

proposed rule, the Division would

also not resolve reimbursement dis-

putes arising from assertions by a

carrier that particular treatment was

not compensable or medically neces-

sary. Since August 2015, the Division

has been utilizing a non-rule policy

consistent with subsection (1) of the

proposed rule. Since November 2015,

DWC has been utilizing a non-rule

policy similar to subsection (2) of the

proposed rule. Prior to the utiliza-

tion of the non-rule policies, DWC

would determine whether a carrier

had improperly adjusted or disal-

lowed a provider claim, determine

the proper reimbursement amount

pursuant to a contract or managed

care arrangement, and order the car-

rier to promptly pay that amount.

Similarly, if a carrier adjusted or dis-

allowed a provider charge based on

a lack of compensability or medical

necessity, DWC would also make the

necessary determinations and resolve

the dispute.

Three petitions were ﬁled to chal-

lenge the proposed rule provisions in

subsection (1) and subsection (2), as

well as a related proposed amend-

ment to an existing rule. Petitioners

represented the interests of health

care providers regularly participating

in DWC’s provider-carrier reimburse-

ment dispute process. The three cases

were consolidated. A group of Inter-

venors representing the interests

of insurance carriers regularly par-

ticipating in DWC’s provider-carrier

reimbursement dispute process inter-

vened in support of DWC’s proposed

rules.

OUTCOME: The ALJ issued a Final

Order invalidating the challenged

proposed rule provisions. As a thresh-

old matter, the ALJ rejected DWC’s

claim that Petitioners lacked stand-

ing because they failed to prove they

would be directly impacted by the pro-

posed rules. The ALJ pointed out the

inconsistency of DWC’s stipulation

that the carrier-Intervenors would

be directly impacted by the proposed

rules, ﬁnding that stipulation to be

an admission equally applicable to

the other side of the provider-carrier

reimbursement disputes addressed

by the proposed rules. Separately, the

ALJ rejected DWC’s argument that

to prove standing, Petitioners were

“required to quantify with precision

the amount of lost income by rea-

son of application of the unadopted

policies in order to prove they will be

injured in fact by the adoption of the

[p]roposed rules.” The ALJ deemed

DWC’s argument to be a “plain

misreading” of Ofﬁce of Insurance

Regulation v. Secure Enterprises,

LLC, 124 So. 3d 332 (Fla. 1st DCA

2013). Among other distinctions, the

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

DOAH CASE NOTES

from page 11

ALJ noted that “unlike in Secure

Enterprises, Petitioners are directly

regulated by the statute, the existing

rules, and the proposed rules. More-

over, here, the proposed rules seek to

take away (and the unadopted poli-

cies have already taken away) from

Petitioners the rights they previously

exercised to use the reimbursement

dispute process to resolve their reim-

bursement disputes involving reim-

bursement contracts or managed

care arrangements, and to resolve

disputes when carriers adjusted

or disallowed payment for any . . .

reason.”

The ALJ concluded that the chal-

lenged proposed rules exceeded

DWC’s grant of rulemaking author-

ity and enlarged, modiﬁed, or con-

travened the specific provisions of

laws to be implemented. With regard

to whether DWC had authority for

the proposed rules, the ALJ con-

cluded that “[t]he grant of rulemak-

ing authority in section 440.13(7)(e)

authorizes rules only for ‘carrying

out’ section 440.13(7), not ‘carving

out’ exceptions from the all-inclusive

scope of the statutory reimbursement

dispute process.” In addition to call-

ing into question DWC’s argument

that only Article V courts have the

authority to interpret and apply con-

tracts such as one between a health

care provider and a carrier, the ALJ

concluded that even if that argu-

ment were well-founded, that would

not create rulemaking authority “to

insinuate an exception into the stat-

ute, where none exists, to exclude

reimbursement disputes involving

contract-based reimbursement. That

is an unlawful insinuation of author-

ity by bureaucratic osmosis.”

Charles F. McClellan and Natasha

Nemeth v. Dep’t of Bus. & Prof’l Reg.,

Div. of Pari-Mutuel Wagering, Case

No. 17-5238RU (Partial Summary

Final Order Dec. 22, 2017).

FACTS: Charles F. McClellan and

Natasha Nemeth are licensed rac-

ing greyhound trainers. The Depart-

ment of Business and Professional

Regulation, Division of Pari-Mutuel

Wagering (“the Division”), served

ﬁve Administrative Complaints on

Mr. McClellan and four Adminis-

trative Complaints on Ms. Nemeth,

alleging that they violated section

550.2415(1)(a), Florida Statutes

(2017), because their racing grey-

hounds tested positive for cocaine

metabolites. On September 21, 2017,

Mr. McClellan and Ms. Nemeth ﬁled

a two-count rule challenge petition.

Count I was an unpromulgated rule

challenge, alleging that the Divi-

sion’s urine sample collection prac-

tices are based on Section 3 from

the Greyhound Veterinary Assistant

Procedures Manual (“the Manual”)

even though Section 3 had been

continued...

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

DOAH CASE NOTES

from page 12

determined to be an unpromulgated

rule in Dawson v. Department of Busi-

ness and Professional Regulation,

Case No. 14-5276RU (Fla. DOAH Jan.

29, 2015). Count II of the petition was

a challenge directed to existing rules.

With regard to Count I, the Divi-

sion acknowledged in a Pre-Hearing

Stipulation that “[t]he Division and

its representatives are still following

the protocols and procedures outlined

in Section 3 of [the Manual] as its pro-

tocol for sampling racing greyhounds’

urine.” Petitioners moved for Partial

Summary Final Order, with respect

to Count I only.

OUTCOME: The Administrative

Law Judge (“ALJ”) issued a Partial

Summary Final Order, concluding

that as to Count I of the petition,

the Division has been violating sec-

tion 120.54(4)(e), Florida Statutes,

by continuing to rely on Section 3

even after being ordered by Dawson

to cease all such reliance. The ALJ

retained jurisdiction to conduct fur-

ther proceedings on attorneys’ fees

and costs.

One week after the ALJ’s ruling,

the Division published an emergency

rule governing drug testing of rac-

ing greyhounds. As justiﬁcation for

ﬁnding that there is an immediate

danger to the public health, safety,

or welfare, the Division stated in its

“Notice of Emergency Rule” that “an

emergency rule is necessary because

the Division would be unable to test

for many prohibited substances in

greyhounds and be unable to take

subsequent administrative action in

cases where a prohibited substance

is found in such an animal. Such

substances would include perfor-

mance enhancing substances, pain

numbing substances, and others that

could lead to potential injuries or

death to the racing animals. Further,

the Division must be able to test for

such substances in order to ensure

legitimate and fair races and to pro-

tect the betting public. Although the

Division rejects the legal ﬁnding in

the Partial Summary Final Order,

the Emergency Rule is necessary

so that the Division can ensure the

greyhound races that occur during

the pendency of any legal challenges

occur under safe conditions.”

Bid Protests

Boston Culinary Group, Inc., d/b/a

Centerplate v. Univ. of Central Fla.,

Case No. 17-4509BID (Recommended

Order Nov. 21, 2017).

FACTS: Since 2007, Boston Culi-

nary Group, Inc., d/b/a Centerplate

(“Centerplate”), has held a ten-year

contract to provide concessions and

alcoholic beverages at multiple ath-

letic and performance facilities on

the campuses of the University of

Central Florida (“UCF”). In January

2016, UCF began preparing for the

end of Centerplate’s contract and the

award of a new concessions contract.

Ovation Food Services, L.P., d/b/a

Spectra Food Services and Hospital-

ity (“Spectra”), provides concessions,

venue management, and related

hosting and entertainment services.

Brian Hixenbaugh is a Spectra gen-

eral manager and has worked for

Spectra since 2006. Mr. Hixenbaugh

appears on the UCF organization

chart under Curt Sawyer, UCF’s

Associate Vice President for Uni-

versity Services. Mr. Sawyer met

with Mr. Hixenbaugh and ﬁve other

men to discuss the concessions con-

tract on February 19, 2016. Follow-

up meetings with the same people

were scheduled on approximately

April 15, 2016 and June 10, 2016.

During at least two of the aforemen-

tioned meetings, the participants

discussed important aspects of the

invitation to negotiate (“ITN”) that

would be utilized to procure a new

concessions contract. Because Spec-

tra was interested in bidding for the

new concessions contract, some UCF

ofﬁcials were concerned about Mr.

Hixenbaugh’s involvement in the

meetings about the concessions con-

tract. Nevertheless, Mr. Hixenbaugh

attended another signiﬁcant meeting

on August 29, 2016, concerning the

concessions contract. UCF issued an

Invitation to Negotiate (“ITN”) for the

concessions contract on February 28,

2017. Centerplate, Spectra, and two

other entities responded with propos-

als. On June 16, 2017, UCF invited

Spectra to attend an in-person meet-

ing to discuss aspects of a potential

agreement between the two entities.

During the course of the meeting

held between UCF and Spectra on

June 21, 2017, Spectra representa-

tives requested and received a tour

of UCF facilities relevant to the con-

cessions contract. On July 20, 2017,

UCF announced that it intended to

award the concessions contract to

Spectra. Centerplate protested that

decision, and Centerplate’s request

for a formal administrative hearing

was referred to DOAH.

OUTCOME: The ALJ found that

“[p]articipating in the ITN develop-

ment would provide a vendor the

competitive advantage of having a

hand in shaping the ITN, a head start

on preparing a proposal, and a fuller

understanding of the University’s

desires and priorities. Mr. Hixen-

baugh participated in the meetings

and gained a competitive advantage

for Spectra.” Accordingly, the ALJ

concluded that “Mr. Hixenbaugh’s

participation and the walk-through

did not just violate University rules.

They were contrary to competition.

Competitive bidding is designed to

secure fair competition on equal

terms for all bidders. Harris v. Sch.

Bd., 921 So. 2d 725 (Fla. 1st DCA

2006). Axiomatically, providing one

bidder a voice in shaping the ITN,

providing one bidder advance notice

of the ITN terms, and allowing that

bidder to develop a relationship with

the individuals who evaluate the

bid and participate in the negoti-

ation denies fair competition and

places the bidders on unequal foot-

ing. Allowing the Spectra negotiating

team to tour the University facilities

before the negotiation session in vio-

lation of the ITN requirements, with

University negotiation team mem-

ber Mr. Hansen facilitating the tour,

exacerbated the University’s anti-

competitive behavior.” As a result,

the ALJ recommended that UCF

enter a ﬁnal order declaring the ITN

invalid and rejecting all proposals.

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

was amended to create a commission

to be convened after ten years and

subsequently every twenty years, to

examine the Constitution and sug-

gest changes for consideration by

the voters.

The ﬁrst Constitutional

Revision Commission (CRC) was con-

vened in 1978; the second in 1998;

and the third in 2017. The CRC began

its work on March 20, 2017, and has

held public meetings throughout the

state and considered over 2,000 pub-

lic proposals.

Although none of the administra-

tive law proposals submitted by the

public advanced, an administrative

law proposal submitted by Commis-

sioner Roberto Martinez is currently

moving through the process. Proposal

6 seeks to amend Article V of the

Florida Constitution

by creating a

new section 21:

Section 21. Judicial interpretation

of statutes and rules – In inter-

preting a state statute or rule, a

state court or an administrative law

judge may not defer to an admin-

istrative agency’s interpretation

of such statute or rule, and must

instead interpret such statute or

rule de novo.

The proposal echoes recent efforts by

the United States Congress to legis-

latively overturn the United States

Supreme Court’s decision in Chev-

ron, USA, Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984).

In Chevron, the Court created a judi-

cial framework for reviewing an

agency’s interpretation of a statute

that it is authorized to administer:

First, always, is the question wheth-

er Congress has directly spoken

to the precise question at issue.

If the intent of Congress is clear,

that is the end of the matter; for

the court, as well as the agency,

must give effect to the unambigu-

ously expressed intent of Congress.

If, however, the court determines

Congress has not directly addressed

the precise question at issue, the

court does not simply impose its

own construction on the statute, as

would be necessary in the absence

of an administrative interpretation.

Rather, if the statute is silent or

ambiguous with respect to the spe-

ciﬁc issue, the question for the court

is whether the agency’s answer is

based on a permissible construction

of the statute.

467 U.S. at 842-43.

The Court’s deci-

sion in Chevron has been heavily

criticized by academics, industry

groups, and Supreme Court Justices

Antonin Scalia, Clarence Thomas and

Neil Gorsuch.

Florida’s Current Treatment

of the Agency Deference Doc-

trine

Although Florida’s appellate courts

have not expressly adopted Chevron,

the state’s courts have extended simi-

lar deference to an agency’s interpre-

tation of a statute.

The First District

Court of Appeal has explained the

agency deference doctrine as follows:

An administrative agency’s inter-

pretation of a statute that it applies

is usually accorded substantial def-

erence unless the interpretation

is clearly erroneous. Under that

doctrine, if the agency’s interpreta-

tion is one of several permissible

interpretations, it must be upheld

despite the existence of reasonable

alternatives.

This court recognizes exceptions

to the general rule. First, a court

need not defer to an agency’s con-

struction or application of a statute

if special agency expertise is not

required. Similarly, a court need

not defer to an agency’s construc-

tion if the language of the statute

is clear and therefore not subject to

construction.

Doyle v. Dep’t of Bus. Reg., 794 So. 2d

686, 690 (Fla. 1st DCA 2001). See also

Verizon v. Jacobs, 810 So. 2d 906, 907

(Fla. 2002). Additionally, Florida’s

appellate courts defer to an agency’s

interpretation of its own adopted

rule. See, e.g., Baptist Hospital, Inc. v.

Dep’t of Health & Rehab. Servs., 500

So. 2d 620 (Fla. 5th DCA 1986).

However, administrative law

judges (ALJs) are not required to

give deference to an agency’s inter-

pretation of a statute or a rule. Unlike

appellate courts, ALJs do “not merely

find the facts and supply the law,

as would a court. The hearing ofﬁ-

cer ‘independently serves the pub-

lic interest by providing a forum to

expose, inform, and challenge agency

policy and discretion.’” McDonald v.

Dep’t of Banking & Finance, 346 So.

2d 569, 583 (Fla. 1st DCA 1977). The

decision in The Public Health Trust of

Miami-Dade County v. Department of

Health further illustrates why ALJs

are not required to adhere to the

agency deference doctrine:

Unlike the judiciary, ALJs are par-

ticipants in the decision-making

processes that lead to administra-

tive interpretations of statutes and

rules—the very administrative in-

terpretations to which courts defer.

The ALJ’s duty is to provide the

parties an independent and impar-

tial analysis of the law with a view

towards helping the agency make

the correct decision. In fulfilling

this duty, the ALJ should not defer

to the agency’s interpretation of a

statute or rule, as a court would;

rather, the ALJ should make in-

dependent legal conclusions based

upon his or her best interpreta-

tion of the controlling law, with

the agency’s legal interpretations

being considered as the positions

of a party litigant, entitled to no

more or less weight than those of

the private party. Otherwise, when-

ever a private litigant is up against

a state agency and the outcome

depends upon the meaning of an

ambiguous statute or rule admin-

istered by that agency, the agen-

cy’s thumb would always be on the

scale, even during the putatively de

novo administrative hearing, and

the non-agency party’s interpretive

continued...

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

continued...

CONSTITUTIONAL REVISION

from page 14

arguments would never be heard

by a judge who could be completely

neutral in deciding such questions

of construction.

Case No. 15-3171 (DOAH Feb. 29,

2016) at ¶ 119. Similarly, the ALJ

in Associated Industries of Florida,

Inc. v. Department of Environmental

Protection, Case No. 16-6889 (DOAH

Dec. 30, 2016) at ¶ 37, explained that

deference to an agency’s statutory

interpretation was a “judicial prin-

ciple” and chapter 120, Florida Stat-

utes, does not require ALJs to provide

such deference.

Questions Raised by Proposal 6

1) Would use of the de novo stan-

dard of review eliminate constitu-

tional concerns associated with

the agency deference doctrine?

Critics of the agency deference

doctrine often contend that judicial

deference to an agency’s interpreta-

tion of a statute or rule violates a

litigant’s right to due process.

The

Florida Supreme Court has explained

that due process requires that liti-

gants be afforded adequate notice

and the opportunity to be heard. See

Scull v. State, 569 So. 2d 1251, 1252

(Fla. 1990). Arguably, due process is

implicated by the agency deference

doctrine because it results in an agen-

cy’s interpretation of a statute or rule

being clothed with the presumption of

correctness in a proceeding in which

the agency is a party.

This is argu-

ably unfair to the non-agency litigant.

See, e.g., Pedraza v. Reemployment

Assistance Appeals Comm’n, 208 So.

3d 1253, 1257 (Fla. 3d DCA 2017)

(Shepherd, J., concurring) (opining

that courts “should

not be so quick to

embrace a course of

conduct that results in

systemic bias towards

one of the parties.”). In

other types of proceed-

ings, a court is not per-

mitted to “favor” one

party over another.

Then-Judge Neil

Gorsuch, writing in

a concurring opinion,

opined that replacing judicial defer-

ence to an agency’s statutory inter-

pretation with de novo review would

remedy the due process issues raised

by the deference doctrine:

[D]e novo judicial review of the

law’s meaning would limit the abil-

ity of an agency to alter and amend

existing law. It would avoid the

due process and equal protection

problems of the kind documented

in our decisions. It would promote

reliance interests by allowing citi-

zens to organize their affairs with

some assurance that the rug will

not be pulled from under them to-

morrow, the next day, or after the

next election. And an agency’s re-

course for a judicial declaration of

the law’s meaning that it dislikes

would be precisely the recourse the

Constitution prescribes—an appeal

to higher judicial authority or a new

law enacted consistent with bicam-

eralism and presentment.

Gutierrez-Brizuela v. Lynch, 834 F. 3d

1142, 1158 (10th Cir. 2017) (Gorsuch,

J., concurring).

Another argument against judicial

deference to an agency’s interpreta-

tion of a statute or rule is that such

deference violates the separation of

powers doctrine.

The separation

of powers doctrine has been strictly

applied by the Florida Supreme Court,

to prevent one branch of government

from encroaching on the power of

another and to prevent one branch

of government from delegating its

power to another branch. See Whiley

v. Scott, 79 So. 3d 702, 708-09 (Fla.

2011). There is concern that judicial

deference to an agency’s interpreta-

tion of a statute or rule, results in

judges delegating their authority to

interpret the law to the executive

branch. See, e.g,. Talk America, Inc.

v. Michigan Bell Tel. Co., 564 U.S.

50, 68 (2011) (“It seems contrary to

fundamental principles of separa-

tion of powers to permit the person

who promulgates a law to interpret

it as well.”) (Scalia, J., concurring).

See also John C. Cruden, Assistant

Attorney General, Remarks on the

Enduring Nature of the Chevron Doc-

trine at the D.C. Bar’s Administrative

Law and Agency Practice Commit-

tee’s Harold Leventhal Lecture (Nov.

10, 2015) (explaining that the delega-

tion of authority to agencies makes

sense due to the agencies’ “political

accountability and responsiveness.”).

Similarly, the Florida Supreme Court

has stated that under Article II, sec-

tion 3 of the Florida Constitution,

policy decisions are to be made by the

Legislature. See, e.g., Askew v. Cross

Key Waterways, 372 So. 2d 913, 925

(Fla. 1978).

2) Would the proposal increase

the complexity of the rule adop-

tion process?

Advocates of the agency deference

doctrine maintain that the judicial

deference is necessary due to the com-

plex nature of rulemaking. Although

Ethics Questions?

Call The Florida Bar’s

ETHICS HOTLINE

1/800/235-8619

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

CONSTITUTIONAL REVISION

from page 15

the Florida Legislature is prohib-

ited from delegating its authority to

another of branch of government,

some degree of delegation is often

necessary:

Subordinate functions may be

transferred by the legislature to

permit administration of legislative

policy by an agency with the exper-

tise and ﬂexibility needed to deal

with complex and ﬂuid conditions.

Otherwise, the legislature would

be forced to remain in perpetual

session and devote a large portion

of its time to regulation. “Obviously,

the very conditions which may oper-

ate to make direct legislative con-

trol impractical or ineffective may

also, for the same reason, make the

drafting of detailed or speciﬁc legis-

lation impractical or undesirable.”

Microtel, Inc. v. Fla. Public Serv.

Comm’n, 464 So. 2d 1189, 1191 (Fla.

1985) (citations omitted).

An example

of the complexity of regulation is the

number of rules adopted per year by

Florida’s agencies versus the number

of bills passed by the Legislature.

Last year, Florida’s agencies adopted

1760 rules; in comparison, the Legis-

lature passed 249 bills.

Conversely, in reviewing concerns

with a similar federal proposal to

replace the agency deference doctrine

with de novo review, the dissenting

view of the United States House of

Representatives Judiciary Commit-

tee observed:

Leading administrative law experts

generally agree that abolishing

judicial deference to agencies’

interpretations of their statutory

authority would make the rulemak-

ing process more costly and time-

consuming. Heightened review

would force agencies to adopt more

detailed factual records and expla-

nations, effectively imposing more

procedural requirements on agency

rulemaking, which is already bur-

dened by procedural delays.

H.R. Rep. No. 114-622, at 27 (June

14, 2016). However, Florida currently

requires agencies to compile a rule-

making record “in all rulemaking pro-

ceedings.” See § 120.54(8)(a)-(h), Fla.

Stat. (2017). Since section 120.54(8),

Florida Statutes, requires an agency

to compile a fairly extensive rulemak-

ing record, it is unclear how the de

novo standard would add time to the

rulemaking process.

3) Is the proposal necessary?

A final argument that the CRC

will have to consider is whether

Proposal 6 is necessary. In Florida,

courts are not required to defer to an

agency’s interpretation of a statute,

because in reviewing ambiguities,

courts generally use canons of statu-

tory construction. See, e.g., Bautista

v. State, 863 So. 2d 1180, 1185 (Fla.

2003) (“Legislative intent is the pole-

star that guides a court’s statutory

construction analysis.”). Addition-

ally, the Legislature is always free

to revisit a statute or to pass a new

statute, where agency rulemaking

reveals a gap in statutory authority.

For example, in Associated Indus-

tries of Florida, Inc. v. Department of

Environmental Protection, the ALJ

invalidated a rule that required com-

panies to notify the public of a pol-

lution release within 24 hours after

release, because the agency did not

have authority to adopt the rule and

the rule enlarged the statutes cited

as law implemented. See DOAH Case

No. 16-6889 (Dec. 30, 2016) at ¶¶ 33

and 39. In response, the Legislature

passed the Public Notice of Pollution

Act the next session, which gave the

Department the authority needed to

adopt rules related to public notiﬁca-

tion of pollution events. See Ch. 2017-

95, Laws of Fla.

Conclusion

There are compelling arguments

for preserving the agency deference

doctrine and for replacing the doc-

trine with de novo review. Proposal

6 has passed its committees of refer-

ence and is ready for consideration

by the full commission. In order for a

proposal to be placed on the Novem-

ber 6, 2018, general election ballot, it

must receive approval from 22 mem-

bers of the full commission.

The

CRC must submit its ﬁnal report to

the Department of State no later than

May 10, 2018.

A proposal placed on

the ballot must be approved by at

least 60% of the electors voting on the

proposal.

The issues identiﬁed by

this article and others will be consid-

ered by the CRC as the process con-

tinues. If you wish to follow the pro-

posal, the CRC has announced that it

will hold additional hearings across

the state in March 2018 in order to

allow for citizen input and CRC meet-

ings are always livestreamed on the

Florida Channel.

Jowanna Nicole Oates is a Chief

Attorney with the Joint Administrative

Procedures Committee. She is

the immediate past chair of the

Administrative Law Section, serves as

a co-editor of the Administrative Law

Section Newsletter, and is a member

of The Florida Bar Continuing Legal

Education Committee. She earned her

J.D. from the University of Florida

Frederic G. Levin College of Law.

The views expressed herein are those of

the author and not intended to reﬂect

the views of the Joint Administrative

Procedures Committee or the Florida

Legislature.

Endnotes

See Article 11, section 2, of the Florida

Constitution for provisions related to the cur-

rent operation of the CRC.

Out of the 2,000 proposals, only six public

proposals were advanced. See CRC Takes Up

Six Citizen Proposals, Florida Bar News, Nov.

15, 2017. Several administrative law propos-

als were submitted by the public for consid-

eration by the CRC. See, e.g., Public Propos-

als N. 700077—Nulliﬁcation of Administra-

tive Rules (legislative nulliﬁcation of agency

rules by joint resolution); Public Proposal N.

700686—Jurisdiction of District Court of Ap-

peal (prohibition on the Legislature passing

a law to require administrative appeals to be

heard by a district court of appeal outside the

jurisdiction of the order being appealed).

Commissioner Martinez at the CRC Ex-

ecutive Committee meeting held on February

2, 2018, noted that the proposal, if approved,

should be placed in Article II, section 3, of the

Florida Constitution.

The de novo standard of review has been

described as “free review” because the appel-

late court is not required to give deference to

the lower court’s decisions of law. See Harvey

J. Sepler, Appellate Standards of Review, 73

Fla. B. J. 11, 49 (Dec. 1999).

See, e.g., Separation of Powers Restoration

Act (SOPRA), H.R. 4768, 114 Cong. § 3 (2016);

Regulatory Accountability Act of 2017, H.R. 5,

115 Cong. § 202 (2017).

continued...

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

CONSTITUTIONAL REVISION

from page 16

The United States Supreme Court has af-

forded similar deference to an agency’s inter-

pretation of a regulation. See Auer v. Robbins,

519 U.S. 452 (1997),

See Jowanna Nicole Oates, Saying Good-

bye to Chevron and Auer? New Developments

in the Agency Deference Doctrine, 91 Fla. B. J.

6 (June 2017), for an examination of recent

decisions criticizing the agency deference doc-

trine and congressional efforts to overturn the

decisions.

Section 120.68(7)(e), Florida Statutes, pro-

hibits a court from “substitut[ing] its judg-

ment for that of the agency on an issue of

discretion.” See, e.g., Dreyer v. Fla. Real Estate

Comm’n, 370 So. 2d 95 (Fla. 4th DCA 1979).

Article I, section 9 of the Florida Constitu-

tion, provides: “No person shall be deprived of

life, liberty or property without due process of

law, or be twice put in jeopardy for the same

offense, or be compelled in any criminal mat-

ter to be a witness against oneself.”

See Bd. of Optometry v. Florida Soc. of

Ophthalmology, 538 So. 2d 878, 889 (Fla.

1st DCA 1988) (stating that once a rule “has

been issued and acted or relied upon by the

agency or members of the public in conduct-

ing the business of the agency, the rule will

be treated as presumptively valid, or merely

voidable, and must be given legal effect until

invalidated in a section 120.56 rule challenge

proceeding.”). However, it should be noted

that section 120.56(2)(c) provides: “When any

substantially affected person seeks determi-

nation of the invalidity of a proposed rule

pursuant to this section, the proposed rule is

not presumed to be valid or invalid.” (empha-

sis added). See § 16, Ch. 96-159, Laws of Fla.

The separation of powers doctrine is found

in Article II, section 3, of the Florida Consti-

tution: “The powers of the state government

shall be divided into legislative, executive and

judicial branches. No person belonging to one

branch shall exercise any powers appertain-

ing to either of the other branches unless ex-

pressly provided herein.”

See Bush v. Schiavo, 885 So. 2d 321, 332

(Fla. 2004) (observing that the non-delegation

doctrine requires statutes to contain “ad-

equate guidelines and criteria.”).

See Fla. J. Admin. Procs. Comm., 2017 An-

nual Report, available at japc.state.ﬂ.us; Fla.

Leg. Div. of Law Rev. & Info., Florida Legisla-

ture – Regular Session 2017 Statistics Report,

available at http://www.leg.state.ﬂ.us/data/

session/2017/citator/Daily/stats.pdf.

See Const. Revision Comm’n R. 5.4 (4)

(2017-2018).

See FLA. CONST. art. XI, §2(c).

See FLA. CONST. art. XI, §5(e).

For more information:

Go to www.lexisnexis.com/ﬂ abar

Call 800.533.1637

LexisNexis and the Knowledge Burst logo are registered trademarks of RELX Inc. Other products or

services may be trademarks or registered trademarks of their respective companies.

The 2017 Rules of Court Procedure books are here!

• Florida Family Law Set (Rules and Statutes)

• Florida Rules of Juvenile Procedure and Rules of

Judicial Administration

• Florida Criminal, Trafﬁ c Court, Appellate Rules of Procedure,

and Rules of Judicial Administration

• Rules of Florida Juvenile Procedure and Rules of Judicial

Administration

• Florida Civil, Judicial, Small Claims, and Appellate Rules

with Florida Evidence Code

Easy access to the latest rules!

Must-have resources for your practice.

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

Agency Snapshot: Agency for State

Technology

by Rachelle Munson

Background:

The Agency for State Technol-

ogy (AST), established in 2014, is

Florida’s newest state agency. AST

was established to develop and pub-

lish information technology policy

for the management of the state’s

information technology resources,

oversee the state’s essential tech-

nology projects, manage the State

Data Center (SDC), and to house

Florida’s Chief Information Ofﬁcer.

Through collaborative partnerships

with both public and private sector,

AST is able to maximize IT resources

and save taxpayer dollars by deliv-

ering more efficient and effective

enterprise customer services to the

Sunshine State. AST holds as its

mission to achieve success through

technology and its vision is to be

the national leader in government

technology. Since rulemaking is not

a matter of agency discretion, the

agency initiates rulemaking as pre-

scribed by applicable law. Based on

the agency’s 2017-2018 regulatory

plan, AST expects to implement rule-

making in substantive areas.

In addition to various full-time

positions, including a general counsel

and senior attorney who oversee the

legal issues for the agency, a Technol-

ogy Advisory Council was also estab-

lished within the agency to consider

and make recommendations to the

Executive Director on such matters

as enterprise information technol-

ogy policies, standards, services, and

architecture.

Executive Director / Chief Infor-

mation Ofﬁcer:

Eric Larson was appointed as the

Executive Director/Chief Information

Ofﬁcer for AST on March 7, 2017. As

the Chief Information Ofﬁcer (CIO),

Mr. Larson sets information technol-

ogy policy and direction for the State

of Florida. The CIO is an advisor to

the Governor on technology issues.

Before joining the agency, Mr. Larson

was the Chief of Distributed Infra-

structure at the Department of

Financial Services and led numer-

ous internal initiatives, in addition

to architecting and implementing

a permanent multi-site Disaster

Recovery for mainframe applications.

Together with the Governor’s Ofﬁce of

Policy and Budget, Mr. Larson focuses

on bringing a “big picture” view of

agency investments and strategies,

assuring that agency investments ﬁt

into an enterprise view of IT.

Chief Information Security

Ofﬁcer:

Thomas Vaughn

Chief Data Ofﬁcer:

Burt Walsh

Geographic Information Ofﬁcer:

Ekaterina Fitos

Inspector General:

Tabitha McNulty

Legislative Affairs and Commu-

nications:

Erin Choy

General Counsel:

Anthony Miller

Governing Statutes and Rule:

Chapter 282, Florida Statutes

Section 20.61, Florida Statutes

Rule Division 74, Florida Administra-

tive Code

Headquarters Address and Con-

tact Information:

Agency for State Technology

4050 Esplanade Way

Suite 115

Tallahassee, FL 32311

Phone: 850-412-6050

[email protected]ﬂorida.com

State Data Center Location:

2585 Shumard Oak Boulevard

Tallahassee, FL 32399

Main Number: 850-413-9306

Public Records Custodian:

Erin Choy

4050 Esplanade Way

Suite 115

Tallahassee, FL 32311

Email: [email protected]ﬂorida.com

Phone: (850) 412-6050

Are drugs or alcohol

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

Spring 2018 Update from the Florida State University

College of Law

by David Markell, Steven M. Goldstein Professor

continued...

Law School Liaison

This column highlights recent

accomplishments of our College of

Law students. It also lists the rich set

of programs the College of Law has

hosted and will be hosting during the

spring 2018 semester. We hope section

members will join us for one of more

of our upcoming programs.

Recent Student Achievements

• Christina Behan, Stephen Cun-

ningham, William Hamilton,

Stuart Nincehelser, and Guerline

Rosemond have had the special

opportunity this year to engage

in externships with the Florida

Constitution Revision Commis-

sion, a body appointed every 20

years to solicit, research, and

process proposals for amending

the state constitution. Students

have assisted with legal re-

search, analysis, and redrafting

of the proposals, and drafting

of ballot measures for consid-

eration by the Florida Supreme

Court before being voted on by

the public.

• Several students participated in

administrative, environmental,

or land use law externships in

the Fall 2017 semester:

- Abrianne Brookins, Depart-

ment of Business and Profes-

sional Regulation

- Isabelle Campbell, Tallahassee

City Attorney

- Jessica Farrell, Earthjustice

- Janaye Garrett, NextEra/

Florida Power & Light

- Julianne Haun, Attorney Gen-

eral—State Programs

- Kaitlynne Wilson, Attorney

General—State Programs

- Cecilia Orozco, Executive

Ofﬁce of the Governor—Ofﬁce

of the General Counsel

- Jessica Rodriguez, Division of

Administrative Hearings

- Michelle Snoberger, Florida

Housing Finance Corporation

- Mykhaylo Vzevolodskyy,

Attorney General—Consumer

Protection

• The following students will be

working as administrative, en-

vironmental, or land use law ex-

terns this spring:

- John Barr, Department of Eco-

nomic Opportunity

- Taylor Birster, Tallahassee

City Attorney

- Marlie Blaise, Public Employ-

ees Relations Commission

- Shannon Brophy, Department

of Health

- Rachel Eilers, Department of

Health

- Andrew Faris, Department of

Health

- Kody Glazer, Leon County

Attorney

- Mark Johnson, Department of

Financial Services

- Giselle Justo, Department of

Transportation

- Nico Kairies, Division of

Administrative Hearings

- Annalise Kapusta, Division of

Administrative Hearings

- Sarah Korkuc, Department of

Financial Services

- Ashlee Polfer, Blueprint Inter-

governmental Agency

- Carly Simpson, Division of

Administrative Hearings

- Tian Wu, Florida Housing

Finance Corporation

• The College of Law has created

a new externship opportunity

this spring for a student to work

with the lawyers at the Florida

Association of Counties in Tal-

lahassee on issues of importance

to county attorneys throughout

the state.

• Several students have earned

prestigious scholarships relating

to administrative, environmen-

tal, or land use law. Congratu-

lations to this year’s Goldstein

Scholarship recipients: Keeley

McKenna, Valerie Chartier-Ho-

gancamp, and Joshua Funder-

burke, and also to this year’s

McLear Scholarship recipients:

Jill Bowen, Kacey Heekin, Jen-

nifer Mosquera, and Hannah

Rogers.

• We are delighted that several

students have had their schol-

arship accepted for publication:

James Brent Marshall, “Geoengi-

neering: A Promising Weapon or

an Unregulated Disaster in the

Fight Against Climate Change?,”

Michael Melli, “Policy Mecha-

nisms, Precedent, and Author-

ity For State Implementation of

Climate Change Agendas,” and

Jessica Farrell, “The Centen-

nial Shakeup: Is the National

Park Service losing its ability

to manage and create Aquatic

Preserves?,” will be published in

33:2 Journal of Land Use and

Environmental Law (forthcom-

ing 2018).

Valerie Chartier-Hogancamp’s

note, “Analysis of Indirect and

Cumulative Impacts: Do the Sierra

Club v. FERC Opinions Signal a

Limitation of NEPA’s Reach?,”

was published in 32 Journal of

Land Use and Environmental Law

(2017).

• The Journal of Land Use and

Environmental Law is pleased

to announce that Volume 32:2

Spring 2017 Issue has been

published and distributed. The

volume features articles from

recent FSU College of Law Dis-

tinguished Environmental Lec-

turers Professor Carol Rose and

Professor Robert V. Percival. It

also includes articles from the

College of Law’s Environmental

Law Without Courts Symposium

by Professor Eric Biber, Profes-

sor Robin Kundis Craig and

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

LAW SCHOOL LIAISON

from page 19

Catherine Danley, Professor Erin

Ryan, Professor Sarah E. Light,

Professors Robert L. Glicksman

and Emily Hammond, Profes-

sor David L. Markell, Professor

Hannah J. Wiseman, Professor

Christopher J. Walker, Profes-

sor Arden Rowell, and Professor

Mark Seidenfeld. The volume

also features comments by Pro-

fessor Shi-Ling Hsu and Profes-

sor Donna Christie.

Spring 2018 Events

The College of Law has a full

slate of administrative law events

and activities on tap for the spring

semester.

Spring 2018 Environmental Dis-

tinguished Lecture

Thomas Merrill, Charles Evans

Hughes Professor of Law, Columbia

Law School presented our Spring

2018 Distinguished Lecture, enti-

tled “The Supreme Court’s Reg-

ulatory Takings Doctrine: Com-

mon-Law Constitutionalism Runs

Aground.” Professor Merrill’s lec-

ture on February 7, 2018.

Environmental Certificate and

Environmental LL.M. Enrich-

ment Lectures

Justin Pidot, Associate Professor

with Tenure, University of Denver

Sturm College of Law, presented on

January 24, 2018.

Daniel Raimi, Senior Research

Associate, Resources for the

Future, and Lecturer, University

of Michigan Gerald R. Ford School

of Public Policy, presented on Feb-

ruary 21, 2018.

Mariana Fuentes, Assistant Pro-

fessor, Florida State University,

Earth, Ocean and Atmospheric Sci-

ence Department, will be speaking

on Wednesday, March 28, 2018,

from 12:30 – 1:30 p.m. in room 310.

Spring 2018 Environmental Stu-

dent Colloquium

The FSU College of Law Environ-

mental, Energy and Land Use Law

program will hold its annual Spring

Colloquium for student papers on

Wednesday, April 4, 2018, in room

A221 of the Advocacy Center. This

is an opportunity for students to be

recognized for their research and

writing achievements, for them to

give a short presentation of their

work, and to get feedback on their

hard work. More information,

including the names of the student

presenters, will be announced.

Environmental Law Society

Recent Events

On September 26, 2017, the Envi-

ronmental Law Society (ELS) orga-

nized a career panel that featured

professionals with diverse back-

grounds and impressive careers in

Environmental law. Participants

included Jason Wiles, President

and CEO at 7G Environmental

Compliance Management, LLC,

Ronni Moore, staff attorney with

the House of Representatives, Anne

Harvey-Holbrook, staff attorney at

Save the Manatee, Bud Vielhauer,

general counsel with the Florida

Fish and Wildlife Conservation

Commission, and Ralph DeMeo,

shareholder at Hopping, Green,

and Sams.

The ELS and the Student Animal

Legal Defense Fund (SALDF)

hosted Standing for Endangered

Species on November 2, 2017. Anne

Harvey-Holbrook, staff attorney

from Save the Manatee, spoke

regarding animal standing in other

countries versus their standing in

the United States, with a focus on

manatees.

The ELS and the SALDF part-

nered with Pets Ad Litem (PAL)

for the Twelfth Annual Puppies in

the Pool event. All donations from

the dog wash went to the City of

Tallahassee animal shelter.

The ELS and the SALDF also

worked with Pets Ad Litem as part

of the City of Tallahassee’s beau-

tiﬁcation project. Pets Ad Litem

has adopted Easterwood Drive.

This effort saves taxpayer dollars

by reducing the need for the city

to pick up litter. The ELS and the

SALDF were glad to be a part of

helping beautify Tallahassee while

changing people’s attitudes about

litter.

Student Animal Legal Defense

Fund (SALDF) Recent Events

Members of the SALDF attended

the 25th National Animal Law

Conference in Portland, Oregon.

This three-day event included the

inaugural Animal Legal Defense

Fund Student Convention. Top-

ics included animals as victims of

criminal offenses, animal sanctuar-

ies, and the worldwide growth of

animal law.

The SALDF hosted a screening of

“Unlocking the Cage” on Septem-

ber 27, 2017. This documentary fol-

lows animal rights lawyer Steven

Wise and The Nonhuman Rights

Project legal team in their unprec-

edented court challenge to break

down the legal wall that separates

animals from humans. This event

was open to the public and featured

a Q & A with Kevin Schneider,

an attorney with the Non-Human

Rights Project and a College of

Law alumnus. The following day,

the SALDF hosted an animal law

panel for law students featuring

Kevin Schneider, Ralph DeMeo

(with Pets Ad Litem and the Ani-

mal Law Section of The Florida

Bar), and Professor Sam Weisman.

The SALDF hosted a meeting

regarding Pet Trusts on October 19,

2017. FSU College of Law alum-

nus Max Solomon, from Hueler-

Wakeman Law Group, discussed

how lawyers can help their clients

financially plan for their four-

legged and winged loved ones.

Every year, the Leon County

Humane Society hosts Walk and

Wag: Humane Heroes. Humane

Heroes brings our community

together to speak for those who

have no voice of their own. The

SALDF created a team of over

16 members, both students and

alumni, and raised $900.00.

The SALDF was awarded the

United Fur Justice Award for its

contribution.

Information on upcoming events

is available at http://law.fsu.edu/aca-

demics/jd-program/environmental-

energy-land-use-law/environmental-

program-events. We hope Section

members will join us for one or more

of these events.

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

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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 eld

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.

To join, make your check payable to “THE FLORIDA BAR” and return your check in

the amount of $25 and this completed application to:

ADMINISTRATIVE LAW SECTION

THE FLORIDA BAR

651 E. JEFFERSON STREET

TALLAHASSEE, FL 32399-2300

NAME ___________________________________________ ATTORNEY NO. ______________

MAILING ADDRESS _____________________________________________________________

CITY ___________________________________ STATE ______________ ZIP ______________

EMAIL ADDRESS ________________________________________________________________

Note: The Florida Bar dues structure does not provide for prorated dues. Your

Section dues cover the period from July 1 to June 30.

For additional information about the Administrative Law Section, please visit our website:

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

FLORIDA EVIDENCE CODE

from page 1

in which the Florida Evidence Code

does not apply; there sure are a lot

of rules about evidence!) But, if rules

of evidence are now to be used at the

presiding ofﬁcer’s “discretion,” what

becomes our evidentiary standard?

Did Florida Industrial revise our

ground rules for administrative hear-

ings? Has the Supreme Court laid

out a new evidentiary barometer?

Should Administrative Law Judges

(“ALJs”) and agency hearing ofﬁcers

now consider referencing the Florida

Evidence Code prior to excluding any

evidence?

Actually, the precept presented in

Florida Industrial is rather straight-

forward. The Supreme Court did not

tell us WHAT the rules of evidence

are for administrative proceedings.

It advised us HOW we may use them.

Administrative proceedings are

governed by the Administrative Pro-

cedure Act found in chapter 120,

Florida Statutes. The admissibility of

evidence in administrative hearings

is articulated in section 120.569(2)(g),

which states:

Irrelevant, immaterial, or unduly

repetitious evidence shall be ex-

cluded, but all other evidence of

a type commonly relied upon by

reasonably prudent persons in the

conduct of their affairs shall be

admissible, whether or not such

evidence would be admissible in a

trial in the courts of Florida.

Fla. Stat. (2017) (emphasis added).

So, there it is. Simply stated, to be

admissible in chapter 120 evidentiary

hearings, evidence must meet two

requirements. It must be (1) relevant,

and it must be (2) reliable.

ALJs are tasked to make express

ﬁndings of fact. In order to do so, ALJs

must ensure that their ﬁndings are

based solely on the competent sub-

stantial evidence they allow into the

record. Whether a document or tes-

timony is “relevant” to the ultimate

disputed issue is generally straight-

forward. (Although, often the rel-

evancy/irrelevancy question is not

made clear until after all the evidence

is admitted.) As far as admitting evi-

dence that is “commonly relied upon

by reasonably prudent persons,” I

customarily adhere to the sapient

advice from one of my esteemed col-

leagues, who proclaimed: “I consider

myself the most ‘reasonable prudent

person’ in the room. Therefore, I must

be sufﬁciently satisﬁed that I can rely

upon the evidence in order to make

my ﬁndings of fact.”

So, how does Florida Industrial

ﬁt into our chapter 120 evidentiary

framework? The Florida Industrial

ruling focuses on the second prong,

reliability. In other words, admin-

istrative practitioners may use the

Florida rules of evidence to attack

or support whether documents or

testimony are sufﬁciently reliable to

support a ﬁnding of fact.

To explore how this concept works

in practice, let’s consider the follow-

ing scenario. Say that during an

administrative hearing, a party, who

is charged with misconduct, seeks to

introduce a photograph of dubious ori-

gin, which he represents exonerates

him of any wrongdoing. The opposing

attorney might (appropriately) object

and argue that the Florida Evidence

Code requires the necessary foun-

dation to be laid before evidence is

admitted in Florida courts. (In other

words, a witness with knowledge

must testify that the photograph is

a fair and accurate representation of

the scene that it depicts.) Therefore,

the photograph is simply not reliable

enough for the ALJ (the most “reason-

able prudent person” in the room) to

use as a basis for a factual ﬁnding.

Thereafter, the ALJ, using his or her

discretion, might declare, “Objection

well made! In light of Florida rules of

evidence, the photograph is not reli-

able enough for me to admit under

section 120.569(2)(g). Therefore, I will

not make any ﬁndings of fact based

on the information it might portray.”

Conversely (and just as signifi-

cantly), a party might counter any

objections to entering a photograph

by announcing that a witness who

is familiar with the photograph will

authenticate the scene depicted in the

picture. Therefore, the photograph is

reliable enough for the ALJ to admit

into the evidentiary record. (This

same concept can be seen in section

120.57(1)(c), Florida Statutes, which

allows hearsay to be used to sup-

port a ﬁnding of fact if the evidence

would be admissible over objection in

civil actions. Evidence that meets a

hearsay exception in sections 90.803

or 90.804, Florida Statutes, is quite

likely reliable enough for the pre-

siding ofﬁcer to use as a basis for a

factual ﬁnding.)

In sum, the Supreme Court in

Florida Industrial did not revise

or modify the rules of evidence for

administrative proceedings. Instead,

the Supreme Court provided guid-

ance to administrative practitioners

and presiding ofﬁcers on how to apply

the Florida Evidence Code in the

context of chapter 120 evidentiary

hearings. To be admissible, section

120.569(2)(g) directs that evidence

must meet two criteria; it must be:

1) relevant, and 2) reliable. The pro-

visions of the Florida Evidence Code

may be used to help determine the

reliability of documents or testimony

that is introduced into the record.

Bruce Culpepper has served as

an Administrative Law Judge since

2015. Judge Culpepper attended the

University of Florida for both his

undergraduate degree (history) and

his law degree. After graduating law

school, Judge Culpepper began his

law practice in the United States Air

Force as a Judge Advocate General.

In 1997, he returned to his home

town of Tallahassee and entered

private practice where he concentrated

on commercial, administrative,

and appellate litigation. In 2010,

Judge Culpepper went back into

public service and joined the Florida

Department of Financial Services.

The following year, he moved to

the Florida Office of Insurance

Regulation where he handled a

broad array of administrative

litigation and regulatory matters.

Judge Culpepper is currently serving

as a Judge Advocate in the Florida

Army National Guard. Among Judge

Culpepper’s community activities, he

has been involved in the William H.

Stafford Inns of Court, Leadership

Tallahassee, Boy Scouts, Florida Blue

Key Leadership Honorary Society, and

the Tallahassee Camellia Society.

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