From the Chair Appellate Case Notes

See “Appellate Case Notes,” page 7

See “From the Chair,” next page

From the Chair

By Bruce D. Lamb

NewsleerNewsleer

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

INSIDE:

DOAH Case Notes ................................... 3

Law School Liaison

Florida State University College of Law

Spring 2021 Update .............................. 6

Membership Application ......................... 10

Appellate Case Notes

By Tara Price, Melanie Leitman, Robert Walters, Gigi Rollini, and Larry Sellers

Vol. XLII, No. 4 Jowanna N. Oates and Tiffany Roddenberry, Co-Editors June 2021

As I prepare this report, we have

received word that the CDC has lifted

the mask mandate for individuals

who have been vaccinated. Regretta-

bly, the progress that has been made

in regard to the COVID pandemic

has developed too late for sections

to hold live meetings at the upcom-

ing annual meeting of The Florida

Bar. Therefore, our Executive Council

meeting of June 10, 2021 will be held

via a virtual platform. The meeting

will begin at 12:20 p.m. We hope that

you will consider participating. De-

spite the challenging times that we

have faced, your Administrative Law

Section has continued to perform its

core functions of offering educational

opportunities and reports of legal

developments to its members. At our

Executive Council meeting we will

have reports from our standing com-

mittees as well as other section and

division liaison reports. In addition,

the annual election of ofﬁcers will

take place. Our Long Range Planning

Committee meeting was delayed so as

to allow us the opportunity to have an

in person meeting. The Long Range

Planning Committee will meet on

July 29, 2021.

I hope that most of you are familiar

Attorneys’ Fees – “Substantially

Justiﬁed” Exception in Proposed

Rule Challenge

Dep’t of Health v. Louis Del Favero

Orchids, Inc., 313 So. 3d 876 (Fla. 1st

DCA 2021)

Louis Del Favero Orchids (Del

Favero) challenged proposed rules

delineating the preference for a com-

pany to receive a medical marijuana

license based on whether the facility

or property to be used does or did

process citrus. While the statute con-

templated the preference applying

to conversion of citrus-related facili-

ties, the rule allowed the preference

to be applied to citrus-related prop-

erty, which Del Favero argued was

an invalid and unauthorized expan-

sion of the statutory language. The

ALJ agreed with Del Favero, found

the rule to be an invalid exercise of

legislative authority, and declared it

invalid.

Del Favero then sought recovery

of attorneys’ fees and costs under

section 120.595(2), Florida Statutes,

which the ALJ awarded, ﬁnding that

the Department of Health (DOH) had

not acted reasonably in substituting

“property” for “facility” in its proposed

rule. DOH appealed.

The appeals court, ﬁnding a dearth

of cases analyzing the “substan-

tially justiﬁed” standard in section

120.595(2), instead looked to section

57.111, Florida Statutes, which has

nearly identical language.

In reversing the fee award, the

court found that the ALJ had improp-

with our new bulletin which is being

published to supplement our other

reports to members including the

newsletter. The bulletin is less formal

Administrative Law Section Newsletter Volume XLII, No. 4 • June 2021

FROM THE CHAIR

from page 1

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

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

Stephen C. Emmanuel (semmanuel@ausley.com) .......................................................Chair-elect

Tabitha Jackson (tjackson@ls-law.com) ......................................................................... Secretary

Suzanne Van Wyk (Suzanne.VanW[email protected].ﬂ.us) ...............................................Treasurer

Tiffany Roddenberry (Tiffany.Roddenberry@hklaw.com) ..............................................Co-Editor

Jowanna N. Oates (oates.jowanna@leg.state.ﬂ.us) ........................................................Co-Editor

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

Colleen P. Bellia, Tallahassee ........................................................................... Production Artist

Statements or expressions of opinion or comments appearing herein are those of the contributors

and not of The Florida Bar or the Section.

than the newsletter and we welcome your contributions.

Contributions to the bulletin can include all types of fun

information, photos, trivia, jokes, and recipes. Of course,

more serious content is also welcomed. If you have content

for the bulletin please contact Tabitha Jackson at tjack-

[email protected]. I would again like to thank

Maria Pecoraro-McCorkle, Tabitha Jackson, and Judge

Gar Chisenhall for their dedication and devotion of time

to this project.

Our CLE committee is actively planning for a webinar

series and the return to live CLE events. In addition, we

are in the planning stages for a networking event in Tal-

lahassee. This is tentatively scheduled for June 5, 2021,

beginning at 3:00 p.m. at Proof Brewing Company. We

are planning to have live music and great comradery. We

hope that you can attend. Further announcements will be

made as the date approaches. Inasmuch as this may be my

ﬁnal From the Chair, I would like to take this opportunity

to thank Calbrail Banner, our section administrator, for

her assistance to me and the members of the Executive

Council. Calbrail is a great resource and has performed

with precision during this difﬁcult year.

Correction: The article “DEP and 404 Program Assumption” published in the March 2021 Administrative

Law Section Newsletter, Vol XLII, No. 3, expressed the individual views of the author, and not those of

the Department of Environmental Protection. Florida’s application for assumption of the 404 program

was approved on December 17, 2020, and became effective on December 22, 2020, upon publication in

the Federal Register. For more information on Florida’s 404 program please go to https://ﬂoridadep.

gov/water/submerged-lands-environmental-resources-coordination/content/state-404-program.

Administrative Law Section Newsletter Volume XLII, No. 4 • June 2021

continued...

DOAH Case Notes

By Gar Chisenhall, Matthew Knoll, Dustin Metz, Paul Rendleman, Tiffany Roddenberry, and Katie Sabo

Substantial Interest Proceedings

Lane v. Patio Casual, LLC, Case No.

20-5354 (Recommended Order March

29, 2021). https://www.doah.state.

ﬂ.us/ROS/2020/20005354.pdf

FACTS: Mr. Lane ﬁled a complaint

with the Pinellas County Ofﬁce of

Human Rights against his former

employer, Patio Casual, assert-

ing disability discrimination when

the employer, among other things,

required only him to wear a mask and

then terminated him over fears for

his health when he refused to do so.

Mr. Lane began working for the

employer as a sales and marketing

administrator on April 25, 2020—

that is, during the early stage of the

COVID-19 pandemic. Mr. Lane has a

liver condition, which he disclosed to

the employer during his interview.

On May 14, 2020, the co-owner texted

Mr. Lane, asking him if he would be

willing to wear a mask in the store:

“[b]ecause of your medical condition

we think you should always wear

a mask at work.” Mr. Lane agreed.

At the time, health agencies issued

guidance that masks helped prevent

the spread of the coronavirus, but no

national, state, or local mask man-

date was in effect. When Mr. Lane

arrived to work that day, he noticed

that other employees were not wear-

ing masks. At that point he took off

his own mask. The co-owner again

told Mr. Lane that she would like him

to wear the mask. Fifteen minutes

after he refused to wear the mask,

the co-owner terminated him.

OUTCOME: The ALJ found the co-

owner’s text message was direct evi-

dence of unlawful discrimination. The

ALJ acknowledged that the employer

undoubtedly had genuine concern

for Mr. Lane and believed his liver

condition made him more prone to

the potentially deadly effects of the

coronavirus. The ALJ however con-

cluded the “direct threat” defense

under the Americans with Disabili-

ties Act was inapplicable under the

facts of the case. 29 C.F.R. § 1630.2(r)

(differential treatment for a disabled

employee is justified where there

is a “signiﬁcant risk of substantial

harm to the health or safety of the

individual or others that cannot be

eliminated or reduced by reason-

able accommodation …this assess-

ment shall be based on a reason-

able medical judgment that relies on

the most current medical knowledge

and/or on the best available objec-

tive evidence”). Here, the ALJ found

the defense inapplicable because the

employer offered no medical evidence

that would justify requiring Mr. Lane

to wear a mask, but not the other

employees.

Lifestream Behavioral Ctr., Inc. v.

Dep’t of Child. & Families, Case No.

20-4322 (Recommended Order Feb. 1,

2021, adopted in toto by DCF Final

Order Mar. 3, 2021). https://www.

doah.state.ﬂ.us/ROS/2020/20004322.

pdf

FACTS: Methadone Medication-

Assisted Treatment (“MAT”) is sub-

stance abuse treatment utilizing

medications, counseling, and behav-

ioral therapies. The Department of

Children and Families (“Depart-

ment”) regulates MAT providers,

and a new MAT provider may not be

established without the Department

determining that there is a need for

one. If the number of prospective

MAT providers seeking licensure

in a particular county exceeds the

Department’s determination of how

many providers are needed in that

county, then Florida Administrative

Code Rule 65D-30.0141 requires

the Department to have a team of

industry experts evaluate the appli-

cants in order to determine which

ones should be licensed. On June 20,

2020, the Department announced in

the Florida Administrative Register

that Lake County needed one new

MAT clinic. Six prospective providers

applied for licensure in Lake County,

and the Lake County evaluation team

gave Lifestream Behavioral Center,

Incorporated (“Lifestream”) a score of

633.5 and Metro Treatment of Flor-

ida, L.P. (“Metro”) a score of 619. How-

ever, a member of the evaluation team

inexplicably gave Metro no points for

a particular category and gave a non-

sensical response when asked about

the anomaly. The Department deter-

mined that the aforementioned score

could not be justiﬁed, and the Depart-

ment adjusted Metro’s score on that

particular factor to a level coinciding

with a score that substantively iden-

tical responses had received. This

adjustment raised Metro’s overall

score to 639, and the Department

published notice on July 10, 2020,

of its intent to award the new MAT

license in Lake County to Metro.

Lifestream petitioned for a formal

administrative hearing and argued

that the Department deviated from

its own rule by overriding the Lake

County evaluation team’s scoring of

Metro’s application.

OUTCOME: The ALJ rejected

Lifestream’s argument by conclud-

ing that the Department followed

its promulgated process by hiring

outside evaluators and allowing

then to submit their scores without

interference. “When the Department

reviewed those scores and found ones

that facially violated the promulgated

instructions in the Scoring Form, it

took the only reasonable step and

overrode those scores. It was more

than reasonable for the Department

to conclude that this was the most

equitable and legally appropriate

action.”

Dep’t of Agric. & Consumer Servs. v.

Tampa Maid Foods, LLC, Case No.

20-5566 (Recommended Order April

12, 2021). https://www.doah.state.

ﬂ.us/ROS/2020/20005566.pdf

Administrative Law Section Newsletter Volume XLII, No. 4 • June 2021

continued...

FACTS: The Department of Agricul-

ture and Consumer Services (“Depart-

ment”) regulates food establishments

in Florida pursuant to Chapter 500,

Florida Statutes (“the Food Safety

Act”), and Florida Administrative

Code Chapter 5K-4. The Department

contracts with the federal Food and

Drug Administration to perform

various types of inspections includ-

ing Hazard Analysis Critical Con-

trol Points (“HAACP”) inspections.

At all relevant times, Tampa Maid

operated a shrimp and shellﬁsh pro-

cessing plant in Lakeland, Florida.

On March 9, 2020, two Department

inspectors arrived at the processing

plant in order to conduct HAACP and

FDA contract inspections. However,

no inspection occurred because Tampa

Maid’s Director of Food Safety and

Quality Assurance would not allow

the inspectors to enter the plant with

their Department-issued cell phones/

cameras. On November 5, 2020, the

Department issued an administrative

complaint seeking to impose a $5,000

ﬁne on Tampa Maid for violating sec-

tion 500.04(6), Florida Statutes, by

denying inspectors entry into a food

establishment.

OUTCOME: The ALJ recommended

that the Department issue a final

order imposing a $1,000 ﬁne and sus-

pending Tampa Maid’s food permit

until the Department has free access

to the processing plant. In the course

of doing so, the ALJ rejected Tampa

Maid’s argument that the Depart-

ment’s inspectors had no authority to

utilize cameras during their inspec-

tion. While acknowledging that the

Food Safety Act does not expressly

mention the use of photography dur-

ing inspections, the ALJ cited Dow

Chemical. Co. v. United States, 476

U.S. 227 (1996), for the proposition

that “it was unnecessary for the Flor-

ida Legislature to explicitly include

the use of cameras, a thermometer,

ﬂashlight, pen, or paper in chapter

500 for the Department to utilize such

equipment in conducting its inspec-

tions.” The ALJ also concluded that

precluding the Department’s inspec-

tors from using any tools not spe-

DOAH CASE NOTES

from page 10

ciﬁcally mentioned in the Food Safety

Act would lead to an absurd result.

Corcoran v. Leger, DOAH Case No.

20-2987PL (Recommended Order

Feb. 10, 2021). https://www.doah.

state.ﬂ.us/ROS/2020/20002987.pdf

FACTS: Richard Corcoran, as Com-

missioner of Education (“Petitioner”),

filed an administrative complaint

against Ruth S. Gaillard Leger

(“Respondent”) on July 1, 2020, alleg-

ing that Respondent left a student

unsupervised and alone in her class-

room while Respondent took her other

students to P.E. During the course of

the ensuing formal administrative

hearing, the Petitioner attempted to

introduce evidence of other alleged

misdeeds of Respondent and prior

incidents in which Respondent alleg-

edly left students unsupervised.

OUTCOME: The ALJ found that the

Petitioner failed to prove by clear and

convincing evidence that Respondent

committed the alleged violation and

recommended that the administra-

tive complaint be dismissed. In the

course of doing so, the ALJ noted that

section 120.57(1)(d), Florida Statutes,

prohibits the admission of evidence

that is only intended to prove bad

character or propensity. The statute

allows admission of evidence regard-

ing other violations or wrongs when

relevant to prove motive, opportu-

nity, intent, preparation, plan, knowl-

edge, identify, or absence of mistake.

However, a party intending to offer

evidence for one of the aforemen-

tioned purposes must furnish to the

party in question a writ-

ten description, 10 days

prior to the administra-

tive hearing, of the acts

or offenses it intends to

offer into evidence. With

regard to the instant case,

the ALJ noted that no

such statement was sub-

mitted by the Petitioner.

Moreover, the ALJ con-

cluded that the prior acts

of offenses in question

were only being offered to

demonstrate propensity

or bad character.

Attorney’s Fees

Still v. Suwannee River Water

Mgmt. Dist., SRWMD No. ERP-

0070233697-2 (Final Order Feb. 9,

2021). https://www.doah.state.ﬂ.us/

ROS/2020/20000091_282_02242021

_13273823_e.pdf

FACTS: 101st Avenue (“Road”)

is a dirt road in Bradford County,

Florida (“County”). After a series of

storm events and Hurricane Irma

damaged the Road in August and

September 2017, the County, pursu-

ant to emergency authority, began

repairing the Road in December

2017. On December 10, 2019, the

Suwannee River Water Manage-

ment District (“District”) entered

a notice granting an after-the-fact

application and determined that the

repairs met Florida Administrative

Code Rule 62-330.051(4)(e)’s crite-

ria for an exempt activity. Dr. Paul

Still resides at an address abutting

the aforementioned repair work. On

approximately December 23, 2019,

Dr. Still petitioned for a hearing to

challenge the exemption. In DOAH

Case No. 20-91, the ALJ entered an

order recommending that the District

approve the application and impose

attorney’s fees against Dr. Still pur-

suant to section 120.595(1)(d), Flor-

ida Statutes. In recommending that

fees be awarded, the ALJ stated that

“[t]he only conclusion that can be

objectively drawn, given the facts

of this case, is that the action chal-

lenging the Exemption was taken

primarily to harass the County and

the District, for frivolous purpose,

Administrative Law Section Newsletter Volume XLII, No. 4 • June 2021

APPELLATE CASE NOTES

from page 4

or to needlessly increase the cost of

securing the Exemption.”

OUTCOME: The District issued a

ﬁnal order adopting the ALJ’s rec-

ommendation. With regard to an

award of attorney’s fees, the District

stated that it and the County were

each owed $30,000 in fees. However,

the ﬁnal order stated that neither

the County nor the District would

seek to enforce their awards unless

one of the following events occurred:

(1) Dr. Still and/or his wife petitioned

for a hearing of any kind with the

District, the St. Johns River Water

Management District (“SJRWMD”),

the Florida Department of Environ-

mental Protection (“DEP”), or DOAH;

(2) Dr. Still or his wife appear as a

party or amicus in an administrative

proceeding of any kind in which the

District, the SJRWMD, DEP, and/

or the County is a party; (3) Dr. Still

and/or his wife appear as a qualiﬁed

representative in any administrative

proceeding in which the District, the

SJRWMD, DEP, and/or the County

is a party; (4) Dr. Still and/or his wife

ﬁle a complaint or petition of any kind

with any court or tribunal against the

District, the SJRWMD, DEP, and/or

the County; or (5) Dr. Still and/or his

wife participate as a party or amicus

in any proceeding before any court

or tribunal in which the District, the

SJRWMD, DEP, and/or the County

is a party. The ﬁnal event listed in

the District’s ﬁnal order stated that

the fee awards would be enforced

if Dr. Still or his wife were used to

establish the associational standing

of a group in any administrative or

judicial proceeding in which the Dis-

trict, the SJRWMD, DEP, and/or the

County is a party.

Rule Challenges—Unadopted

Rule

Brooks v. Dep’t of Health, Bd. of Physi-

cal Therapy, Case No. 21-76RU (Final

Order of Dismissal). https://www.

doah.state.ﬂ.us/ROS/2021/21000076.

pdf

FACTS: Patricia Brooks is a Flor-

ida-licensed physical therapist who

entered the Department of Health’s

(“Department”) impaired practitio-

ner’s program in January 2015. In

April 2015, Ms. Brooks agreed to have

her aftercare monitored for ﬁve years

by the Professional Resource Net-

work (“PRN”). Ms. Brooks also agreed

to have her blood tested for alcohol

consumption on a regular basis. On

June 17, 2020, the Department ﬁled

an administrative complaint alleging

that Ms. Brooks stopped submitting

to the aforementioned testing and did

not submit to an evaluation required

of those seeking an early termina-

tion of their monitoring agreement.

The Department further alleged

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 Florida Bar Journal

, please email Lylli Van Whittle (Lyyli.

VanWhit[email protected]yﬂorida.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 either

The Florida Bar Journal

or the Section’s newsletter.

FOR

that Ms. Brooks violated: (a) section

456.072(1)(x), Florida Statutes, by

failing to timely report a guilty plea

to DUI; and (b) section 456.072(1)(hh),

by being terminated from an impaired

practitioner program without good

cause. On January 8, 2021, Ms.

Brooks ﬁled a petition with DOAH

alleging that PRN’s monitoring con-

tract contains unadopted rules of the

Department and the Board of Physical

Therapy (“Board”) requiring licensees

with a previously diagnosed illness to:

(1) incur substantial costs associated

by agreeing to be monitored for ﬁve

years; and (2) obtain a non-treating

professional’s opinion as to whether

the licensee is ﬁt to end his or her

monitoring agreement.

OUTCOME: The ALJ determined

that the Board was not a proper

party to the rule challenge proceed-

ing because the Department “has the

responsibility to contract with PRN

or other consultants to implement an

impaired practitioners program. The

Board has no role in that aspect of the

statutory scheme.” In addition, “[t]he

Board has not caused [Ms. Brooks’]

injury and cannot provide her any

relief from the requirements of her

contract.” The ALJ further concluded

that the statements at issue are not

unadopted rules because they are not

statements of an “agency” as deﬁned

in section 120.52, Florida Statutes.

The statements at issue are those

of PRN, and PRN is a private entity

rather than a state agency.

Administrative Law Section Newsletter Volume XLII, No. 4 • June 2021

Law School Liaison

continued...

Florida State University College of Law Spring 2021

Update

by Erin Ryan, Associate Dean for Environmental Programs

Remembering Dave Markell

It is with enormous sadness that

I announce the loss of FSU Professor

Emeritus David Markell, who passed

away on March 22, 2021, surrounded

by family, after a heroic battle with

cancer.

Markell retired from teaching

in 2020 after 18 years at FSU. He

served as the FSU College of Law

Associate Dean for Academic Affairs

(2007-2008), Associate Dean for Envi-

ronmental Programs (2012-2015),

and Associate Dean for Research

(2016-2018). He was a recipient of

the FSU University Graduate Teach-

ing Award (2016-2017). Over the

course of his career, Markell served

as the David Sive Visiting Scholar

at Columbia Law School, and as a

visiting professor at the University

of Virginia School of Law, Lewis and

Clarke College of Law, Melbourne

Law School (Australia), and IDC Her-

zliva Radzyner Law School (Israel).

Markell published six books and

more than 50 articles and book

chapters on topics including climate

change, compliance and enforcement,

and North American environmental

law and policy. One of his books was

cited as “the most outstanding work

of legal scholarship in the ﬁeld” of

administrative law and earned the

annual ABA Section of Administra-

tive Law and Regulatory Practice

Award for Scholarship. Since 2000,

four of his articles have been selected

by peers as among the best law review

articles in the ﬁeld of environmental

law. Three other articles have been

selected as ﬁnalists for this honor.

Markell’s extensive government

experience included service with the

NAFTA Environmental Commis-

sion, the U.S. Department of Jus-

tice’s Environmental Enforcement

Section, U.S. EPA Region 1, and the

New York State Department of Envi-

ronmental Conservation (as acting

Deputy Commissioner of the Ofﬁce of

Environmental Remediation and as

Director of the Division of Environ-

mental Enforcement). Markell also

served as a member of the U.S. EPA

National Advisory Committee, as an

external advisor to the Government

of Canada’s Ofﬁce of the Auditor Gen-

eral, and as a mediator and expert

witness.

“Dave was beloved here for his

kindness, his generosity, his hard

work, and his impressive teaching,

scholarly productivity, and service to

the law school and broader commu-

nity,” said FSU College of Law Dean

Erin O’Connor. “We will all miss him

terribly.”

From the beginning until the very

end, Dave was a remarkable friend,

colleague, family member, and fellow

citizen. He devoted himself profes-

sionally to the highest aspirations

of the environmental ﬁeld and suc-

ceeded in a career marked by both

academic and real-world accomplish-

ments. Yet despite his many profes-

sional accomplishments, Dave was

even more devoted to the people in his

life—loving his family, nurturing his

students, and bettering his commu-

nity at every opportunity. Everyone

who knew him was quietly awestruck

by his simple and straightforward

goodness. I know I join everyone in

the wider FSU and environmental

community in feelings of profound

loss and grief at his passing.

Updates on the FSU Environmen-

tal Law Certiﬁcate Program

The U.S. News and World Report

(2022) has ranked the Florida State

University College of Law as the

nation’s 18

best Environmental Law

Program, tied with Tulane Univer-

sity. FSU College of Law ranked 48

overall.

Below highlights the activities and

events of the FSU Environmental

Law Certiﬁcate Program. It also lists

recent faculty scholarship.

Recent Student Achievements

and Activities

• The following students par-

ticipated in environmental law

externships this spring:

* Katherine Hupp – Division of

Administrative Hearings

* Richard Adetutu – Pub-

lic Employees Relation

Commission

* Alessandra Norat Mousinho –

Department of Business & Pro-

fessional Regulation Ofﬁce of

General Counsel

* Jaelee Edmond – Department of

Business & Professional Regu-

lation Division of Alcoholic Bev-

erages and Tobacco

* Tanner Kelsey – Department of

Environmental Protection

* Keirsey Carns – Florida Fish

and Wildlife Conservation

Commission

* Megan Clouden – Florida Fish

and Wildlife Conservation

Commission

* Kevin Kane – NextEra Juno

Beach

* Kamilla Yamatova – NextEra

Tallahassee

* Kevin Harris – Tallahassee City

Attorney’s Office, Land Use

Division

Administrative Law Section Newsletter Volume XLII, No. 4 • June 2021

LAW SCHOOL LIAISON

from page 6

continued...

• Jonathan McGowan authored a

chapter in Impact Investing, edited

by Robert Brown and Alan Gutter-

man, which will be published by

the American Bar Association in

late 2021.

• Katherine Hupp and Catherine

Bauman participated in the

National Energy and Sustainabil-

ity Moot Court Competition hosted

by the West Virginia University

College of Law on March 10-13,

2021.

Alumni Accomplishments

• Travis Voyles (FSU Law ’17) is the

Oversight Counsel in the U.S. Sen-

ate Committee on Environment

and Public Works.

• Ashley Joan Englund (FSU Law

’20) co-authored an article with

Kelsey Beirne in The Fl or id a

Bar Journal entitled Courtroom

Canines Are Leading Courtroom

Accommodations for Children.

Environmental Law Lectures

The FSU Environmental, Energy,

and Land Use Law Program hosted a

full slate of impressive environmen-

tal and administrative law events

and activities via Zoom this spring.

To access the recordings, please email

us at jroxas@law.fsu.edu.

erly narrowed its analysis to whether

the substitution of the word “facil-

ity” for “property” was substantially

justified, when the proper inquiry

should have looked at DOH’s deci-

sion to initiate rulemaking in the

ﬁrst place. The court held that when

determining whether invalidated

proposed rules were “substantially

justiﬁed” for the purposes of deter-

mining entitlement to attorney fees,

courts should examine the decision to

initiate rulemaking and not only the

defect which caused the proposed rule

to be invalidated. The court found

that DOH met its burden to establish

that its actions were substantially

justiﬁed, as the text of the proposed

rule reasonably tracked the pertinent

statute and DOH sought guidance

from the Department of Citrus in

drafting the rule.

Judge Makar dissented from the

majority opinion, ﬁnding that DOH

failed to meet its burden to show

the “substantially justiﬁed” excep-

tion applied. The dissent found that

the majority improperly substituted

its judgment for that of the agency

rather than applying the deferen-

tial standard the order was due, and

that the result of the case was to

excuse DOH “substituting its will

for the Legislature’s as to who was

eligible for the citrus preference.”

APPELLATE CASE NOTES

from page 1

Judge Makar emphasized textualist

principles in his disagreement with

the majority that the nuance between

“property” and “facility” was incon-

sequential, and agreed with the ALJ

that it was “impossible to reconcile”

DOH’s interpretation.

Due Process – General Assertions

of Disputed Fact Insufﬁcient to

Require Formal Hearing

Burnett Int’l Coll. v. Fla. Bd. of Nurs-

ing, 46 Fla. L. Weekly D869a (Fla. 1st

DCA Apr. 14, 2021)

Burnett International College

(Burnett) appealed an order of the

Florida Board of Nursing (Board) ter-

minating its nursing program. Bur-

nett claimed that the Board denied

it due process by failing to conduct a

formal hearing prior to terminating

its program and by not providing the

necessary notice.

The Board took action against Bur-

nett after its program failed to meet

the statutorily required passage rates

on a national licensing exam. Pursu-

ant to statute, the passing rate of a

nursing program’s graduates tak-

ing the exam for the ﬁrst time must

meet or exceed the minimum passing

rate, which the statute speciﬁes is ten

points lower than the average pass-

ing rate of graduates taking the exam

nationally for the ﬁrst time.

The Board served Burnett with a

Notice of Intent to Terminate Nurs-

ing Education Program. In response,

Burnett ﬁled a petition requesting

a formal hearing at the Division of

Administrative Hearings pursuant

to sections 120.569(1) and 120.57(1),

Florida Statutes. In its petition,

Burnett contested the passage rates

used by the Board, claiming that they

were unproven and false, and that

the Board failed to provide Burnett

proper notice of the hearing. The

Board denied Burnett’s petition for

a formal hearing after determining

that the petition failed to identify a

disputed issue of material fact.

Following an informal hearing pur-

suant to section 120.57(2), the Board

issued a ﬁnal order terminating Bur-

nett’s nursing program.

On appeal, Burnett argued that

the passage rates submitted by the

Board created a disputed issue of

material fact. The court rejected this

argument, noting that generalized

assertions that disputed issues of

material fact exist, do not create dis-

puted issues of material fact.

Burnett also argued that its due

process rights were violated when it

was not afforded the opportunity to

amend its petition for formal hearing.

The court also rejected this argu-

ment, ﬁnding there was no amend-

ment that could identify any disputed

issue of material fact because the

necessary passage rates were set by

law, and the rates disclosed by the

Board reﬂected that the Board was

statutorily required to terminate the

program.

Administrative Law Section Newsletter Volume XLII, No. 4 • June 2021

Finally, while Burnett argued that

its due process rights were further

violated for failure to receive proper

notice, the court found that Burnett

received the required notice in the

form of the Notice of Intent to Ter-

minate Nursing Education Program

and the Notice of Hearing.

Accordingly, the court afﬁrmed the

Board’s order terminating Burnett’s

nursing program.

Exhaustion of Administrative

Remedies

Fla. Carry, Inc. v. Thrasher, 46 Fla.

L. Weekly D550a (Fla. 1st

DCA

Mar. 11, 2021)

Florida Carry, Inc. appealed from a

trial court order dismissing its chal-

lenges to administrative regulations

and policies regarding possession of

ﬁrearms on Florida State Universi-

ty’s campus. The trial court dismissed

the action because Florida Carry had

not exhausted the administrative

remedies available pursuant to the

process established by FSU under the

authority of section 1001.706(2)(c),

Florida Statutes, which requires

notice, public comment, and a “pro-

cess for a substantially affected per-

son to challenge a statement of gen-

eral applicability that has not been

properly adopted as a regulation” or

“an unlawful regulation.”

The court rejected Florida Carry’s

assertion that it could ﬁle a lawsuit

directly in circuit court rather than be

required to pursue available admin-

istrative remedies before doing so.

The court recognized that Florida

Carry has the right to challenge the

lawfulness of restrictions on ﬁrearms,

as provided by section 790.33, Florida

Statutes, which creates enforceable

rights against state agencies that

adopt unlawful enactments that con-

ﬂict with state ﬁrearms laws. How-

ever, the court also recognized that,

as a general rule, a litigant must

exhaust available administrative

remedies, absent a recognized excep-

tion. In this case, the court concluded

APPELLATE CASE NOTES

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that no exception applies, and that

Florida Carry is required to exhaust

its available administrative remedies

before resorting to a judicial forum.

Accordingly, the appellate court

affirmed the trial court’s order of

dismissal.

Legislative Preemption – Stat-

utory Penalties Against Local

Governments

State v. City of Weston, 46 Fla. L.

Weekly D813a (Fla. 1st DCA Apr. 9,

2021)

After the Legislature enacted laws

in 2011 that imposed statutory penal-

ties against governmental entities for

violating Florida’s preemption stat-

ute regarding ﬁrearms and ammuni-

tion, a group of cities sought to enact

local ﬁrearm-safety measures they

believed were not preempted. The

group challenged the law imposing

the penalties in circuit court, and

were successful in striking the law.

The State of Florida appealed.

Appellees, which included thirty

cities, three counties, and more than

seventy elected ofﬁcials of those enti-

ties, sought declaratory judgments

invalidating sections 790.33(3)(f)

and 790.335(4)(3), Florida Statutes,

for violating government function

immunity. The statutes created pen-

alties against governmental entities

that violated the Legislature’s pre-

emption of ﬁrearm and ammunition

regulations. Appellees argued they

had legislative immunity against

the imposition of these fines. The

trial court agreed with Appellees, and

invalidated the statutes.

The First District disagreed with

the trial court in two primary ways:

(1) that government function immu-

nity does not shield entities that act

contrary to or more restrictively than

state law in the completely preempted

ﬁeld of ﬁrearm and ammunition regu-

lation; and (2) that legislative immu-

nity does not shield individuals who

knowingly and willfully act contrary

to or beyond the limits of Florida law.

Accordingly, the court reversed,

ﬁnding the statutes imposing such

penalties against local government

ofﬁcials constitutional.

License Revocation – Burden for

Stay of License Revocation Pend-

ing Review

Freeman v. Dep’t of Health, 312 So. 3d

1068 (Fla. 1st DCA 2021)

After the Alabama Medical Licen-

sure Commission denied Dr. Free-

man’s application for a medical license

in that state, the Florida Board of

Medicine (Board) revoked his license

in Florida. Dr. Freeman appealed the

ﬁnal order of revocation and sought a

stay pending appellate disposition.

Dr. Freeman, a Florida licensed

medical doctor, was rebuffed in his

effort to become a licensed medical

practitioner in Alabama when that

state’s licensing board determined

not only that he had committed fraud

in his application, but also that he

lacked the “basic medical knowledge

or clinical competency” necessary for

him to practice “with reasonable skill

and safety to patients.”

Upon learning of this, the Florida

Department of Health (DOH) filed

an administrative complaint with

the Board seeking disciplinary action

against Dr. Freeman’s Florida license

based solely upon section 458.331(1)(b),

Florida Statutes, which permits disci-

plinary action if a licensee is denied

licensure in another state. DOH pro-

vided no additional basis for discipline

and relied exclusively upon the Ala-

bama board’s conclusions. The Board

approved and adopted DOH’s allega-

tions and recommendation, and issued

a ﬁnal order revoking his license. The

ﬁnal order, similar to the administra-

tive complaint, contained no details

about Dr. Freeman’s conduct, nor did

it explain how his conduct posed a

danger to the public.

When Dr. Freeman appealed the

revocation, he also sought a stay. DOH

opposed the stay. Pursuant to section

120.68(3), Florida Statutes, for DOH

to overcome a licensee’s statutory enti-

tlement to an interim stay of a license

revocation pending appeal, it must

establish that a stay “would constitute

a probable danger to the health, safety,

or welfare of the state.” In its opposi-

tion, however, DOH merely rehashed

the same basic facts alleged in the

administrative complaint, offered

continued...

Administrative Law Section Newsletter Volume XLII, No. 4 • June 2021

APPELLATE CASE NOTES

from page 8

no details to support the Alabama

board’s decision to deny licensure,

and did not point to any evidence

that it had conducted its own inves-

tigation into the danger of appellant

continuing to practice.

Accordingly, the court found that

“[t]he department’s conclusory asser-

tion that there is a probable danger—

based on the department’s unelabo-

rated reference to a licensing decision

by an agency of another state—does

not sufﬁce,” and granted Dr. Free-

man’s stay pending appeal.

Medicaid Beneﬁts -- Timeliness of

Motion for New Hearing

C.B. v. Dep’t of Child. & Families, 310

So. 3d 1282 (Fla. 5th DCA 2021)

C.B. timely appealed the denial

by the Department of Children and

Families (DCF) of her application for

Medicaid beneﬁts. An administrative

hearing was scheduled for October 22,

2019. C.B.’s counsel ﬁled a motion for

continuance, which the hearing ofﬁ-

cer granted, stating that “[a]ll parties

will be notiﬁed in the future of the

new hearing date.” On the same day,

a separate notice was issued by a

different hearing ofﬁcer setting the

rescheduled hearing for November 5,

2019. Although this notice indicated

that copies were furnished to C.B. and

her counsel, no address was listed for

either person.

C.B. and her counsel did not attend

the rescheduled hearing and the case

was closed as abandoned as a result.

No notice of closing the case was sent

to C.B. or her counsel, and the hearing

ofﬁcer did not issue a ﬁnal order. Sub-

sequently, C.B.’s counsel contacted

DCF’s Ofﬁce of Appeal Hearings to

determine the status of the case and

learned that the case was closed as

abandoned on November 13, 2019,

due to the failure to appear at the

administrative hearing.

C.B.’s counsel ﬁled a motion (sup-

ported by afﬁdavits) for a new hear-

ing alleging, among other things,

that she never received notice of the

rescheduled hearing. On March 5,

2020, the hearing officer issued an

Order Denying the Motion for a New

Hearing and a Final Order of Aban-

donment. The Order relied exclusively

on Florida Administrative Code Rule

65-2.061, which provides in pertinent

part, “[w]ritten explanation for failure

to appear must be received by the

Ofﬁce of Appeal Hearings within 60

calendar days from the date of the

hearing when the appellant alleges

nonreceipt of the notice of hearing[.]”

The hearing officer concluded that

C.B.’s motion was untimely because it

was ﬁled more than 60 days after the

November 5, 2019 hearing date.

On appeal from the order denying

her motion for new hearing and the

ﬁnal order of abandonment, the court

noted that procedural due process

requires both fair notice and an oppor-

tunity to be heard, and that section

120.68(7)(c), Florida Statutes, autho-

rizes the court to set aside agency

action when it ﬁnds that “[t]he fairness

of the proceedings or the correctness

of the action may have been impaired

by a material error in procedure.” The

court determined that the mechanical

application of the rule would contra-

vene due process principles in this

case. As a result, the court reversed,

concluding that C.B. was entitled to

have her motion for a new hearing

considered on the merits.

Public Records – Marsy’s Law

Protections for Law Enforcement

Ofﬁcers

Fla. Police Benevolent Ass’n v. City of

Tallahassee, 46 Fla. L. Weekly D755a

(Fla. 1st DCA Apr. 6, 2021)

Two Tallahassee Police Depart-

ment ofﬁcers were involved in fatal

shootings with suspects in two sepa-

rate incidents. In both incidents, the

ofﬁcers’ lives were threatened by the

suspects, and both ofﬁcers fatally shot

the suspects. After initially denying a

request to reveal the identities of the

ofﬁcers, the City of Tallahassee (City)

changed course. The ofﬁcers sued the

City seeking to prevent their identi-

ties being revealed, citing protections

under Marsy’s Law.

The circuit court determined that

the protections afforded to crime vic-

tims pursuant to Marsy’s Law did not

extend to law enforcement ofﬁcers,

even when suspects threatened their

lives. The court also suggested that to

receive the protections under Marsy’s

Law, criminal proceedings must begin

and, because both suspects were

deceased, no prosecution could com-

mence. Finally, the court determined

that even if they were crime victims,

their names were not entitled to con-

fidential treatment because of the

conﬂict between Marsy’s Law and the

Sunshine Law.

On appeal, the First District Court

of Appeal reversed the circuit court’s

order directing the City to reveal

the identities of the appellants. The

court found that Marsy’s Law and

the Sunshine Law do not conﬂict, and

that the two articles of the Florida

Constitution can be read in harmony.

The Sunshine Law, by its express

terms, does not provide that all public

records are subject to disclosure, and

Marsy’s Law’s express purpose is “to

preserve and protect” certain rights

of crime victims. Thus, because of the

plain language of the two articles,

even when law enforcement ofﬁcers

are acting in their ofﬁcial duty, they

can still become crime victims and

are thus afforded the protections of

Marsy’s Law. The court found regard-

less of whether criminal proceedings

will begin, the protections of Marsy’s

Law start when victims are victim-

ized, and are afforded conﬁdential

treatment from that point forward.

The City of Tallahassee has

invoked the Florida Supreme Court’s

discretionary jurisdiction to review

the decision, see SC21-651.

Gigi Rollini, Melanie Leitman,

and Robert Walters practice in the

Tallahassee ofﬁce of Stearns Weaver

Miller P.A.

Tara Price and Larry Sellers

practice in the Tallahassee ofﬁce of

Holland & Knight LLP.

Administrative Law Section Newsletter Volume XLII, No. 4 • June 2021

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