first district of florida case no. 1d18-2929
TRANSCRIPT
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT OF FLORIDA
Case No. 1D18-2929
FLORIDA DEPARTMENT OF HEALTH,
Appellant,
v.
NATURE’S WAY NURSERY OF MIAMI, INC.,
Appellee.
On Appeal from an Administrative Final Order of the
Florida Division of Administrative Hearings, Case No. 17-5801RE
APPELLANT FLORIDA DEPARTMENT OF HEALTH’S INITIAL BRIEF
Eduardo S. Lombard Florida Bar No. 0153590 Megan S. Reynolds Florida Bar No. 0042000 Vezina, Lawrence & Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301 (850) 224-6205 [email protected] [email protected] [email protected] Counsel for Appellant Florida Department of Health
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TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................. iii PRELIMINARY STATEMENT ............................................................................. 1 STATEMENT OF CASE AND FACTS ................................................................. 1
The Compassionate Medical Cannabis Act of 2014 ..................................... 1
The Department’s Adoption of DO-Licensing Rules .................................... 2 Application Evaluation Under the 2014 Act and Validated Rule 64-4.002 (2015) ............................................................. 3 The 2015 Point of Entry Afforded Nature’s Way ....................................... 10 The 2015 License-Denial Challenges .......................................................... 11 The Medical-Marijuana Constitutional Amendment .................................. 13 The 2017 Law and Nature’s Way’s 2017 Request for MMTC Licensure ............................................................ 14
SUMMARY OF ARGUMENT ............................................................................. 21 STANDARD OF REVIEW ................................................................................... 22 ARGUMENT ......................................................................................................... 23
I. The 2017 Law and Nature’s Way’s 2017 Request for MMTC Licensure. ............................................................................. 23
II. The Emergency Rule does not modify or contravene the specific provisions of law implemented. ..................................... 25
A. The legislature established the 2015 scores as criteria for MMTC
licensure. ...................................................................................... 25
ii
B. Historical context and legislative history also support the Department’s position. ................................................................. 31
III. DOAH should have dismissed Nature’s Way’s petition as to the 2015 Scoring Methodology allegedly being an unadopted rule. .................................................................................. 36
A. Nature’s Way’s Final Rank of 2.8833 became final
agency action in 2015 and may not be challenged now, in a proceeding initiated in 2017. ........................................ 36
B. Nature’s Way lacked standing to challenge the 2015 Scoring Methodology. ......................................................... 41
C. The 2015 Scoring Methodology is not a rule. .............................. 43
CONCLUSION ...................................................................................................... 44 CERTIFICATE OF SERVICE CERTIFICATE OF TYPE SIZE AND STYLE
iii
TABLE OF AUTHORITIES
Cases Abbott Labs. v. Mylan Pharm., Inc.,
15 So. 3d 642 (Fla. 1st DCA 2009) ...................................................................... 41 Capeletti Bros., Inc. v. State, Dep’t of Transp.,
362 So. 2d 346 (Fla. 1st DCA 1978) ............................................................. 36, 37 Dep’t of Highway Safety & Motor Vehicles v. Schluter,
705 So. 2d 81 (Fla. 1st DCA 1997) ...................................................................... 40 Fla. Birth-Related Neurological Compensation Ass’n v.
Dep’t of Admin. Hearings, 29 So. 3d 992 (Fla. 2010) .............................................................................. 22, 26
Fla. Dep’t of Offender Rehab. v. Jerry,
353 So. 2d 1230 (Fla. 1st DCA 1978) .................................................................. 42 Fla. Home Builders Ass’n v. Dep’t of Labor & Emp. Sec.,
412 So. 2d 351 (Fla. 1982). .................................................................................. 42 Fla. League of Cities, Inc. v. Admin. Comm’n,
686 So. 2d 397 (Fla. 1st DCA 1991) ............................................................. 37, 38 Fla. State Racing Comm’n v. McLaughlin,
102 So. 2d 574 (Fla. 1958) ................................................................................... 27 Grabba-Leaf, LLC v. Dep’t of Bus. & Prof’l Regulation,
-- So. 3d --, 2018 WL 5797205 (Fla. 1st DCA Nov. 6, 2018) .......................... X22 Grand Dunes, Ltd. v. Walton Cnty.,
714 So. 2d 473 (Fla. 1st DCA 1998) .................................................................... 41 Hechtman v. Nations Title Ins. of N.Y.,
840 So. 2d 993 (Fla. 2003) ................................................................................... 35
iv
Hubschman Assocs., Ltd. v. Collier Cnty., Case No. 93-8-CIV-FTM-21D, 1993 WL 761342, (M.D. Fla. Dec. 13, 1993) .................................................................................... 38
John A. McCoy Fla. SNF Tr. v. State of Fla., Dep’t of Health & Rehab. Servs.,
589 So. 2d 351 (Fla. 1st DCA 1991) .................................................................... 37 Kasischke v. State,
991 So. 2d 803 (Fla. 2008) ................................................................................... 31 McDonald v. Dep’t of Banking & Fin.,
346 So. 2d 569 (Fla. 1st DCA 1977) .................................................................... 39 Nicarry v. Eslinger,
990 So. 2d 661 (Fla. 5th DCA 2008) ................................................................... 27 Office of Ins. Regulation & Fin. Servs. Comm’n v. Secure Enters., L.L.C.,
124 So. 3d 332 (Fla. 1st DCA 2013) ............................................................. 36, 42 Oldham v. Rooks,
361 So. 2d 140 (Fla. 1978) ................................................................................... 14 Regency Towers Owners Ass’n v. Pettigrew,
436 So. 2d 266 (Fla. 1st DCA 1983) .................................................................... 29 RHPC, Inc. v. Dep’t of Health & Rehab. Servs.,
509 So. 2d 1267 (Fla. 1st DCA 1987) .................................................................. 37 Rinker Mats. Corp. v. City of N. Miami,
286 So. 2d 552 (Fla. 1973) ................................................................................... 27 S. Fla. Reg’l Planning Council v. State Land & Water Adjudicatory Comm’n,
372 So. 2d 159 (Fla. 3d DCA 1979) ..................................................................... 37 Smith v. Sylvester,
82 So. 3d 1159 (Fla. 1st DCA 2012) .................................................................... 22 St. Joseph Hosp. of Charlotte, Fla., Inc. v. Dep’t of Health & Rehab. Servs.,
559 So. 2d 595 (Fla. 1st DCA 1989) .................................................................... 36
v
State v. Burris, 875 So. 2d 408 (Fla. 2004) ................................................................................... 26
State v. J.M.,
824 So. 2d 105 (Fla. 2002) ................................................................................... 26 State, Dep’t of Health & Rehab. Servs. v. Barr,
359 So. 2d 503 (Fla. 1st DCA 1978) .................................................................... 39 State, Dep’t of Revenue v. Lockheed Martin Corp.,
905 So. 2d 1017 (Fla. 1st DCA 2005) ........................................................... 26, 27 Topps v. State,
865 So. 2d 1253 (Fla. 2004). ......................................................................... 40, 41 Village Park Mobile Home Ass’n, Inc. v. State of Fla.,
Dep’t of Bus. Regulation, 506 So. 2d 426 (Fla. 1st DCA 1987) .................................................................... 42
Whiley v. Scott,
79 So. 3d 702 (Fla. 2011) ..................................................................................... 24 Wiregrass Ranch, Inc. v. Saddlebrook Resorts, Inc.,
645 So. 2d 374 (Fla. 1994) ................................................................................... 37 Constitutional Provisions Art. X, § 29, Fla. Const. ........................................................................................... 13
Statutes and Session Laws § 11.2422, Fla. Stat. ................................................................................................. 14 § 120.52, Fla. Stat. ............................................................................................ 24, 43 § 120.54, Fla. Stat. ................................................................................................... 15
vi
§ 120.541, Fla. Stat. ................................................................................................. 15 § 120.56, Fla. Stat. .......................................................................... 23, 33, 36, 40, 41 § 120.57, Fla. Stat. ...................................................................................... 20, 39, 40 § 120.68, Fla. Stat. ................................................................................................... 22 § 381.0011, Fla. Stat. ................................................................................................. 1 § 381.986, Fla. Stat. (2014) .............................................................................. passim § 381.986, Fla. Stat. (2016) ...................................................................................... 14 § 381.986, Fla. Stat. (2017) .............................................................................. passim ch. 2014-157, Laws of Fla. ........................................................................................ 1 ch. 2017-232, Laws of Fla. ......................................................................... 14, 15, 24
Administrative Rules Fla. Admin. Code R. 28-106.111 ................................................................ 36, 37, 38 Fla. Admin. Code Ch. 64-4 (2015) ............................................................................ 2 Fla. Admin. Code R. 64-4.001(2015) ........................................................................ 4 Fla. Admin. Code R. 64-4.002 (2015) ............................................................. passim Fla. Admin. Code R. 64ER17-3 ............................................................ 16, 18, 20, 31 Fla. Admin. Code R. 64ER17-7 ....................................................................... passim
vii
Administrative Orders Baywood Nurseries Co. v. Dep’t of Health,
Case No. 15-1694RP (Fla. DOAH May 27, 2015) ............................. 2, 3, 4, 6, 43 Costa Farms, LLC v. Dep’t of Health,
Case Nos. 14-4296RP, 14-4299RP, 14-4517RP, 14-4547RP (Fla. DOAH Nov. 14, 2014) ...............................................................................2, 4
Dewar Nurseries, Inc. v. Dep’t of Health, DOAH Case No. 15-7273. ................... 12 In re License of the Low-THC Cannabis Dispensing
Organization for the Southwest Region, DOAH Case Nos. 15-7269, 15-7270, 15-7271, 15-7272 ..................................... 12
Loop’s Nursery & Greenhouses, Inc. v. Dep’t of Health,
Office of Compassionate Use, DOAH Case No. 15-7274 (Fla. DOAH Oct. 7, 2016; Fla. DOH Jan. 5, 2017) ........................................................................ 3, 6, 7, 8, 12
McCrory’s Sunny Hill Nursery, LLC v. Dep’t of Health,
Case No. 15-7275 (Fla. DOAH Dec. 12, 2016; Fla. DOH Dec. 19, 2016) .......... 12 Plants of Ruskin, Inc. v. Dep’t of Health,
Case Nos. 17-0116, 17-0117 (Fla. DOAH May 23, 2017; Fla. DOH Aug. 22, 2017) ..................................................................................... 12
Tree King–Tree Farm, Inc. v. State of Fla., Fla. Dep’t of Health,
DOAH Case No. 15-7278 ..................................................................................... 12
1
PRELIMINARY STATEMENT
The record on appeal consists of two volumes. Citations to the record are
indicated as either “R.[page number(s)]” (Record on Appeal) or “Tr. [page
number]:[line number]” (final-hearing transcript).
STATEMENT OF CASE AND FACTS
The Compassionate Medical Cannabis Act of 2014
The Department is the agency of the State of Florida charged with
administering and enforcing laws relating to the general health of the people of the
State. § 381.0011(2), Fla. Stat. (2017).1 The Florida Legislature also charged the
Department with special responsibility for implementing and enforcing the
Compassionate Medical Cannabis Act of 2014, ch. 2014-157, Laws of Fla., codified
as amended at section 381.986, Florida Statutes, and other statutes.
Through the Compassionate Medical Cannabis Act of 2014 (the 2014 Act),
the legislature legalized the licensed cultivation, processing, and dispensing of low-
THC marijuana for qualified patients who suffer from certain debilitating illnesses
and conditions. See ch. 2014-157, Laws of Fla. The 2014 Act directed the
Department to authorize five “dispensing organizations” (DOs) to cultivate, process,
and dispense medical marijuana—one DO for each of five regions: Northwest,
1 Unless otherwise indicated, all statutory citations are to the 2017 version of the Florida Statutes.
2
Northeast, Central, Southeast, and Southwest Florida. § 381.986(5)(b), Fla. Stat.
(2014). The 2014 Act set forth a general framework for an application process in
which the Department would determine which statutorily qualified applicant was the
most dependable and most qualified for each region. See id.
The Department’s Adoption of DO-Licensing Rules
The 2014 Act empowered the Department to adopt rules to implement that
act. See § 381.986(5)(d), Fla. Stat. (2014). The Department’s first set of proposed
rules under the 2014 Act was determined to be an invalid exercise of delegated
legislative authority, in part on the basis that the rules did not provide for a
comparative review of DO applications—the type of review the Florida Division of
Administrative Hearings (DOAH) concluded was required by the 2014 Act as a
matter of law. See Costa Farms, LLC v. Dep’t of Health, Case Nos. 14-4296RP, 14-
4299RP, 14-4517RP, 14-4547RP, ¶¶ 80–96 (Fla. DOAH Nov. 14, 2014) (Costa
Final Order). DOAH’s final order invalidating those rules stated that the
Department’s application evaluation must entail a comparison of applicants because
the number of available licenses was limited. Id. ¶¶ 84–96.
Accordingly, using DOAH’s Costa Final Order as a guide, Tr. 107, and using
an extensive negotiated-rulemaking process, the Department developed and
formally adopted detailed rules implementing the application, selection, and
regulatory processes for licensees. See Fla. Admin. Code Ch. 64-4 (2015); Baywood
3
Nurseries Co. v. Dep’t of Health, Case No. 15-1694RP, ¶ 10 (Fla. DOAH May 27,
2015) (Baywood Final Order). The Department’s second attempt to adopt DO-
licensing rules was also challenged. See generally Baywood Final Order, DOAH
Case No. 15-1694RP. Among other things, the method by which the Department
would score applications was contested in Baywood. See id. ¶¶ 17, 55–61, 126–28.
Administrative Law Judge (ALJ) W. David Watkins issued a final order determining
the 2015 rules to be valid in their entirety. See generally id.
Rule 64-4.002 (2015) incorporated by reference an Application for Low-THC
Cannabis Dispensing Organization Approval (Application Form) and a Scorecard
for Low-THC Cannabis Dispensing Organization Selection (Scorecard Form) for
use by the applicants and the application evaluators, respectively. See Fla. Admin.
Code R. 64-4.002 (2015). Applications would be evaluated and comparatively
scored by three evaluators. See Fla. Admin. Code R. 64-4.002(5)(a) (2015). Under
rule 64-4.002 (2015), the applicant whose application received the highest aggregate
score in a given region would be selected as that region’s licensee. Fla. Admin.
Code R. 64-4.002(5)(b) (2015).
Application Evaluation Under the 2014 Act and Validated Rule 64-4.002 (2015)
In reliance on DOAH’s Baywood Final Order, the Department proceeded with
the 2015 DO application batch. See, e.g., Loop’s Nursery & Greenhouses, Inc. v.
Dep’t of Health, Office of Compassionate Use, DOAH Case No. 15-7274, Final
4
Order at 33 ¶ 1 (adopting Rec. Order ¶ 2) (Fla. DOAH Oct. 7, 2016; Fla. DOH Jan.
5, 2017) (Loop’s Final Order).
The requirements for DO licensure were set forth in section 381.986, Florida
Statutes (2014), and Florida Administrative Code Rules 64-4.001 and 64-4.002
(2015). To be approved as a region’s exclusive DO, an applicant needed to
demonstrate to the Department not only that the applicant met the basic statutory
requirements, but also that it was the most qualified—or “the best”—applicant in the
applied-for region to further the Department’s special responsibility to ensure
reasonable statewide accessibility and availability of low-THC cannabis as
necessary for qualified patients. See § 381.986(5)(b), Fla. Stat. (2014); Costa Final
Order, DOAH Case Nos. 14-4296RP, 14-4299RP, 14-4517RP, 14-4547RP, ¶¶ 76–
77; Baywood Final Order, DOAH Case No. 15-1694RP, ¶ 7.
Rule 64-4.002 (2015), the incorporated application form, and the incorporated
Scorecard Form delineated five categories and several subcategories applicants
would be required to address in their applications. See Fla. Admin. Code R. 64-
4.002 (2015). The categories and subcategories contained over 150 individual items
or topics that would help the Department assess each applicant’s ability to satisfy
the seven statutory requirements for DO licensure and prove to the Department that
the applicant was better than the other applicants for the same region. See id.
For example, section 386.981(5)(b)1. (2014) required each applicant to
5
demonstrate that it had the ability to maintain accountability of all raw materials,
finished products, and any byproducts to prevent diversion or unlawful access to or
possession of these substances. This requirement was reiterated in rule 64-4.002
(2015)’s provisions and application form. Fla. Admin. Code R. 64-4.002(2)(d). The
rule and application also broke this requirement down further into 16 items that each
applicant needed to address in its application, such as the floor plan of each facility,
diversion and trafficking procedures, an inventory control system, and vehicle
tracking systems. Fla. Admin. Code R. 64-4.002(2)(d) (2015).
Rule 64-4.002 (2015) and the incorporated Application Form also detailed the
scoring system the Department’s evaluators would use to evaluate applications,
including the weighting system that would be applied.
a. 30% of an applicant’s total score was for the category Cultivation, which was composed of subcategories each worth 25% of the Cultivation score: Technical Ability; Infrastructure; Premises, Resources, Personnel; and Accountability.
b. 30% of an applicant’s total score was for the category Processing, which was composed of subcategories each worth 25% of the Processing score: Technical Ability; Infrastructure; Premises, Resources, Personnel; and Accountability.
c. 30% of an applicant’s total score was for the category Dispensing, which was composed of subcategories each worth 25% of the Dispensing score: Technical Ability; Infrastructure; Premises, Resources, Personnel; and Accountability.
d. 5% of an applicant’s total score was for the category Medical Director.
6
e. 20% of an applicant’s total score was for the category Financials.
See id.
The Department’s Scorecard Form also listed each category, subcategory, and
item or topic that would be scored. See id. § (5)(a). Under rule 64-4.002 (2015), the
scores from each evaluator’s Scorecard Form for a particular applicant would be
combined to generate an aggregate score for the applicant, and the applicant with the
highest aggregate score in each region would be approved as the region’s DO. See
id.
Within its application, each applicant was required to provide a written
explanation or provide written documentation, as applicable, showing how the
applicant met the statutory requirements, addressing each item listed in rule 64-4.002
(2015). See, e.g., Baywood Final Order, DOAH Case No. 15-1694RP, ¶ 57. All
timely filed applications were initially reviewed by the Department for compliance
with the minimum statutory requirements. See, e.g., Loop’s Final Order, DOAH
Case No. 15-7274, Final Order at 33 ¶ 1 (adopting Rec. Order ¶ 23). If it was
determined there were any deficiencies, the Department sent the applicant a certified
letter identifying the deficiencies and providing a deadline for the applicant to
correct the deficiencies, usually by providing additional information or
documentation. See, e.g., id. (adopting Rec. Order ¶ 23).
In July 2015, 28 applicants timely submitted applications to become the
7
exclusive DO for one of the five regions. Nature’s Way applied for the Southeast
region license, as did a number of others. R.283. After the applicants had the
opportunity to correct any deficiencies pursuant to section 120.60(1), Florida
Statutes, the three evaluators independently evaluated and scored the applications,
applying rule 64-4.002 (2015), including the Scorecard Form. See, e.g., Loop’s Final
Order, DOAH Case No. 15-7274, Final Order at 33 ¶ 1 (adopting Rec. Order ¶¶ 25–
26); Fla. Admin. Code R. 64-4.002(5) (2015).
The evaluations were performed by comparing the applications against one
another in each region to determine which applicant was the best in the categories
and subcategories. See, e.g., Loop’s Final Order, DOAH Case No. 15-7274, Final
Order at 33 ¶ 1 (adopting Rec. Order ¶¶ 25–26). The scores were then compiled in
an Excel spreadsheet with embedded mathematical-formula macros that produced a
Final Rank and a Regional Rank for each applicant whose application was reviewed,
evaluated, and scored (the Final Scorecard). See, e.g., id. (adopting Rec. Order ¶
26). Importantly, because each applicant’s final score was an aggregate score,
having the highest score in its region for a particular category, such as Cultivation,
did not make an applicant the best candidate to be that region’s DO. See, e.g., id.
Instead, it was an applicant’s overall quality as indicated by its aggregate score that
dictated whether the applicant was “the best.” See, e.g., id.
Consistent with the rules validated by ALJ Watkins, the Department
calculated applicants' scores by entering the section and subsection scores assigned
by the individual evaluators into the Final Scorecard to produce a "Final Rank" and
a "Regional Rank" for each applicant whose application was reviewed, evaluated,
and scored). See, e.g., id. The applicants' scores by evaluator, Final Rank, and
Regional Rank (the 2015 Scores) are reflected in the Final Scorecard's summary
worksheet as follows:
Applicant Region Reviewer I Reviewer 2 Reviewer 3 Final Rank Rjuoal
3 Boys Southwest 2.6875 3.1000 4.6125 3.4667 4Alpha Southwest 46750 3.5000 3.9375 4.1042 5
Perkins Southwest 1.3750 2.0375 2.9375 2.1167 1
Plants of Ruskin Southwest 2.7625 2.3375 2.6375 26458 2
Sun Bulb Southwest 3.3000 4.0250 2.1500 3.1583 3
Bills SouthQast 2.1125 t1500 1.3875 1.5500 1
Costa Southeast 4.2750 4.2375 4.6875 4.4000 5KeithsSt.Germain Southeast 2.4125 4.1250 3.1000 3.2125 4Natures Way Southeast 2.4500 3.4875 2.7125 2.8833 2Redland Southeast 3.7500 2.0000 3.7750 3.1750 3Deleon Central 1.8375 2.8875 1.0000 1.9083 1
Dewar Central 4.7500 4.5750 2.5375 3.9542 3
Knox Central 4.1750 6.5575 5.8750 5.5458 7
McCrory's Central 5.41 25 4.6875 6.5250 5.5417 6
Redland Central 6.4000 2.3375 4.5500 4.4292 4Spring Oak Central 1.4375 1.3750 3.3125 2.0417 2
Treadwell Central 3.9675 5.4375 4.2750 4.5667 5Bills Northeast 1.2500 1.4250 1.0000 1.2250 1
Chestnut Hill Northeast 4.7250 3.6500 3.0000 3.7917 4Hartss Northeast 3.2375 2.0750 2.0000 2.4375 2
Loops Northeast 2.7250 3.9875 4.0000 3.5706 3
San Folasco Northeast 3.0625 3.8625 5.0000 3.9750 5
Alpha Northwest 3.3125 2.9000 2.0000 2.7375 3
Hackney Northwest 3.6125 3.4500 4.0000 3.6675 4Harrs Northwest 1.7250 1.9250 3.0000 2.2167 2Tree King Northwest 1.3500 1.7250 1.0000 1.3583 1
R.3166.
Applicants with the highest Final Rank in each region were deemed approved
(that is, the winners) for their respective regions. Tr. 52-55. The Regional Rank
reflected an applicant's place within its region, with the highest Regional Rank
r]8
calculated applicants’ scores by entering the section and subsection scores assigned
by the individual evaluators into the Final Scorecard to produce a “Final Rank” and
a “Regional Rank” for each applicant whose application was reviewed, evaluated,
and scored). See, e.g., id. The applicants’ scores by evaluator, Final Rank, and
Regional Rank (the 2015 Scores) are reflected in the Final Scorecard’s summary
worksheet as follows:
R.3166.
Applicants with the highest Final Rank in each region were deemed approved
(that is, the winners) for their respective regions. Tr. 52–55. The Regional Rank
reflected an applicant’s place within its region, with the highest Regional Rank
reflecting the best application and the lowest Regional Rank reflecting the worst
application. Tr. 84. For example, in the Southeast region, Costa had the highest
(and best) Final Rank of 4.400 and Regional Rank of 5. R.3166. Nature's Way
received the Southeast region's second -lowest Final Rank of 2.8833 and was second
to last with a Regional Rank of 2. R.3 166. The Department calculated applicants'
aggregate scores, or Final Ranks, by entering the section and subsection scores
assigned by the individual evaluators into the Final Scorecard.2 Tr. 112; R.3163-
65. The Southeast region applicants' scores by evaluator and Final Rank are
reflected in the Final Scorecard's summary worksheet as follows:
F.-8iI5
1I-:.].
2.1125 1.151)0
i11iT
1.3875 1.5500 1
Costa Southeast 4.2750 4.2375 4.6875 44000 5
KeithsSt.Gerrnain Southeast 2.4125 4.1Z50 3.1000 3.2U5 4
Natures Way Southeast 2.4S00 34S75 2.7125 28833 2
Redland Southeast 3.7500 20000 3.7750 31750 3
See R.3166.
The section -score and subsection -score weighting required by rule 64-4.002
(2015), along with the averaging of the scores assigned by the three evaluators,
necessarily resulted in fractional section scores and Final Ranks for every applicant.
R.2342-43, 3166. Because rule 64-4.002 (2015) contained a special process for
resolving tied Final Ranks and because applicants in one region earned extremely
2 ease of reference, the aggregate score (or Final Rank) was shown as an average.Tr. 55. The aggregate score was derived by simply multiplying the Final Ranknumber by three. Tr. 112-13.
9
reflecting the best application and the lowest Regional Rank reflecting the worst
application. Tr. 84. For example, in the Southeast region, Costa had the highest
(and best) Final Rank of 4.400 and Regional Rank of 5. R.3166. Nature’s Way
received the Southeast region’s second-lowest Final Rank of 2.8833 and was second
to last with a Regional Rank of 2. R.3166. The Department calculated applicants’
aggregate scores, or Final Ranks, by entering the section and subsection scores
assigned by the individual evaluators into the Final Scorecard.2 Tr. 112; R.3163–
65. The Southeast region applicants’ scores by evaluator and Final Rank are
reflected in the Final Scorecard’s summary worksheet as follows:
See R.3166.
The section-score and subsection-score weighting required by rule 64-4.002
(2015), along with the averaging of the scores assigned by the three evaluators,
necessarily resulted in fractional section scores and Final Ranks for every applicant.
R.2342–43, 3166. Because rule 64-4.002 (2015) contained a special process for
resolving tied Final Ranks and because applicants in one region earned extremely
2 For ease of reference, the aggregate score (or Final Rank) was shown as an average. Tr. 55. The aggregate score was derived by simply multiplying the Final Rank number by three. Tr. 112–13.
10
close Final Ranks but could still be differentiated, the Department decided to carry
the scores out to the fourth decimal place, or ten-thousandths of a point. R.2298,
2306–07; Tr. 68–69. For the same reasons, the Department did not consider
rounding any score (including the Final Rank) to the nearest whole number.
R.2306–07, 2312, 2315; Tr. 94–95.
The Department used this scoring methodology (the 2015 Scoring
Methodology) one time, for the 2015 application batch. Tr. 109–10; R.2282. At
that time, the Department did not intend to use the 2015 Scoring Methodology again,
as it had no statutory authority to issue more than the five licenses the 2014 Act
directed the Department to issue. Tr. 110. The Department still does not intend to
use the 2015 Scoring Methodology again because—at a minimum—the current
medical-marijuana statute does not differentiate between regions of the state and the
current license statutes and rules do not include the same requirements as rule 64-
4.002 (2015). Tr. 109; R.2282.
The 2015 Point of Entry Afforded Nature’s Way
By letters dated November 23, 2015, the Department notified each losing
applicant, including Nature’s Way, that the applicant was not the highest-scored
applicant for its region and therefore its application was denied (the 2015 Denial
Letter(s)). See, e.g., R.1854–55. The 2015 Denial Letters included the following
notice of chapter 120 rights:
11
This notice is agency action for purposes of section 120.569, Florida Statutes. A party whose substantial interest is affected by this action may petition for an administrative hearing pursuant to sections 120.569 and 120.57, Florida Statutes. A petition must be filed in writing and must be received by the Agency Clerk within twenty-one (21) days from receipt of this notice. The petition may be mailed to the Agency Clerk, Department of Health, 4052 Bald Cypress Way, BIN #A-02, Tallahassee, FL 32399-1703; hand delivered to the Agency Clerk, Department of Health, 2585 Merchants Row Blvd., Prather Building, Suite 110, Tallahassee, FL; or sent by facsimile to (850) 413-8743. Such petition must be filed in conformance with Florida Administrative Code Rules 28-106.201 or 28-106.301, as applicable.
Mediation is not available.
Failure to file a petition within 21 days shall constitute a waiver of the right to a hearing on this agency action.
See, e.g., R.1855.
Although the 2015 Denial Letter the Department sent to Nature’s Way did not
include Nature’s Way’s or Costa’s Final Ranks, the 2015 Scores of all applicants
were public record and were provided to many applicants and nonapplicants in
response to public records requests. Tr. 59, 111–12. There was no evidence the
Department prevented Nature’s Way from learning its or any other applicant’s 2015
Scores. Additionally, the Final Scorecard was repeatedly published during the
several administrative proceedings brought by other denied 2015 applicants
challenging their application denials. R.1970–71, 2303–05.
The 2015 License-Denial Challenges
In December 2015, the Department received 13 petitions from denied DO-
12
license applicants—but not from Nature’s Way. Nature’s Way did not then, nor has
it ever, challenged its 2015 application denial or requested to see its or anyone else’s
score—even though Nature’s Way’s vice president and co-owner testified at final
hearing that after the Department denied Nature’s Way’s 2015 application, Nature’s
Way “just [wasn’t] sure how to go about understanding what our final score was and
why [Nature’s Way wasn’t] the highest scoring applicant in the southeast region.”
Tr. 17, 19–21.
The Department referred the 13 petitions to DOAH. Some petitioners
voluntarily dismissed their petitions prior to final hearing. See In re License of the
Low-THC Cannabis Dispensing Organization for the Southwest Region, DOAH
Case Nos. 15-7269, 15-7270, 15-7271, 15-7272; Dewar Nurseries, Inc. v. Dep’t of
Health, DOAH Case No. 15-7273; Tree King–Tree Farm, Inc. v. State of Fla., Fla.
Dep’t of Health, DOAH Case No. 15-7278. Others, like Nature’s Way, failed to
avail themselves of the points of entry provided in the 2015 Denial Letters. Just four
applicants proceeded to final hearing, and those matters were resolved by final order.
See, e.g., Loop’s Final Order, DOAH Case No. 15-7274; McCrory’s Sunny Hill
Nursery, LLC v. Dep’t of Health, Case No. 15-7275 (Fla. DOAH Dec. 12, 2016; Fla.
DOH Dec. 19, 2016); Plants of Ruskin, Inc. v. Dep’t of Health, Case Nos. 17-0116,
17-0117 (Fla. DOAH May 23, 2017; Fla. DOH Aug. 22, 2017).
13
The Medical-Marijuana Constitutional Amendment
Effective January 3, 2017, the Florida Constitution was amended to include
article X, section 29, titled Medical marijuana production, possession and use (the
Amendment). The primary purpose of the Amendment (as reflected by the statement
of public policy found at the beginning of the Amendment) was to exempt qualifying
patients and caregivers, qualifying physicians, and the Department and its employees
and agents from criminal liability for their actions relating to medical marijuana so
long as those persons comply with Department regulations and applicable regulatory
statutes. See art. X, § 29(a)(1)–(3), Fla. Const.
Among other things, the Amendment (1) authorizes the establishment of
“medical marijuana treatment centers” (MMTCs) to cultivate, process, and dispense
medical marijuana and (2) authorizes the use of full-strength-THC medical
marijuana by qualified patients with a broader range of medical conditions than
previously permitted by statute—all subject to Department regulations and statutory
provisions. See art. X, § 29, Fla. Const. The Amendment empowers the Department
to “issue reasonable regulations necessary for the implementation and enforcement
of this section. The purpose of the regulations is to ensure the availability and safe
use of medical marijuana by qualifying patients.” See art. X, § 29(d), Fla. Const.
The Amendment also provides, “Nothing in this section shall limit the
legislature from enacting laws consistent with this section.” See art. X, § 29(e), Fla.
14
Const.
The 2017 Law and Nature’s Way’s 2017 Request for MMTC Licensure
In a 2017 special session, the legislature completely rewrote section 381.986
(2016) (the 2017 Law). See ch. 2017-232, § 3, Laws of Fla. The 2017 Law repealed
the 2014 Act in its entirety. See, e.g., id. (“Section 381.986, Florida Statutes is
amended to read: (Substantial rewording of section. See s. 381.986, F.S., for present
text.)”); § 11.2422, Fla. Stat.; Oldham v. Rooks, 361 So. 2d 140, 143 (Fla. 1978). In
its place, the legislature provided a comprehensive regulatory structure to implement
the Amendment. See, e.g., id. First, the 2017 Law provided for former DOs to
receive MMTC licenses, or “registration,” upon meeting certain statutory
requirements:
[T]he department shall license as a medical marijuana treatment center any entity that holds an active, unrestricted license to cultivate, process, transport, and dispense low-THC cannabis, medical cannabis, and cannabis delivery devices, under former s. 381.986, Florida Statutes 2016, before July 1, 2017, and which meets the requirements of this section.
§ 381.986(8)(a)1., Fla. Stat. (2017). Only those DOs licensed when the 2017 Law
took effect were eligible to obtain MMTC licenses under this provision. See, e.g.,
id.
Second, the 2017 Law permitted the Department to issue a batch of 10 licenses
to applicants meeting the following conditions and requirements:
(8) MEDICAL MARIJUANA TREATMENT CENTERS.—
15
(a) . . .
2. The department shall license as medical marijuana treatment centers 10 applicants that meet the requirements of this section, under the following parameters:
a. As soon as practicable, but no later than August 1, 2017, the department shall license any applicant whose application was reviewed, evaluated, and scored by the department and which was denied a dispensing organization license by the department under former s. 381.986, Florida Statutes 2014; which had one or more administrative or judicial challenges pending as of January 1, 2017, or had a final ranking within one point of the highest final ranking in its region under former s. 381.986, Florida Statutes 2014; which meets the requirements of this section; and which provides documentation to the department that it has the existing infrastructure and technical and technological ability to begin cultivating marijuana within 30 days after registration as a medical marijuana treatment center.
§ 381.986(8)(a)2.a, Fla. Stat. (2017) (emphasis added) (the One-Point Provision).
The 2017 Law expressly authorized the Department to adopt rules to
implement the One-Point Provision, § 381.986(8)(k), Fla. Stat. (2017), and granted
the Department special emergency rulemaking powers,3 ch. 2017-232, § 14, Laws
of Fla. But the Department did not immediately do so, as the Department believed
the One-Point Provision to be unambiguous, with a self-evident meaning: the
Department read the One-Point Provision’s phrase final ranking within one point of
3 Chapter 2017-232, Laws of Florida, also exempted the Department’s emergency rulemaking under that law from the requirements of sections 120.54(3)(b), 120.54(4)(c) and 120.541, Florida Statutes. Ch. 2017-232, § 14, Laws of Fla. Thus, any emergency rule adopted under the law did not require publication of a statement justifying the rule.
16
the highest final ranking in its region literally—meaning a score listed in the Final
Scorecard’s Final Rank column that is no more than 1 point lower than the region’s
highest aggregate score as listed in the highest-scoring applicant’s Final Rank
column. R.2290–92.
After the 2017 Law was enacted, another denied Southeast-region applicant,
Keith St. Germain Nursery Farms (KSG), applied for an MMTC license under the
One-Point Provision, R.2862, 2865. Because KSG’s Final Rank was not within one
point of Costa’s Final Rank, the Department denied KSG’s request. R.2862, 2865.
Under the Administrative Procedure Act (APA), chapter 120, Florida Statutes, KSG
challenged that preliminary agency action and challenged the Department’s
interpretation of the One-Point Provision as being an unadopted rule. R.2866. KSG
contended that the Department was required by mathematical principles to round all
the 2015 Final Ranks to the nearest whole number, which would render KSG’s Final
Rank within one point of Costa’s Final Rank. R.539–41, 2240. KSG also challenged
the 2015 Scoring Methodology as being an unadopted rule. R.542.
While KSG’s rule-challenge proceeding was pending at DOAH—and to
clarify the Department’s interpretation of the One-Point Provision—the Department
adopted Florida Administrative Code Emergency Rule 64ER17-3. R.284.
Emergency rule 64ER17-3 provided,
(1) For the purposes of implementing s. 381.986(8)(a)2.a., F.S., the following words and phrases shall have the meanings
17
indicated:
(a) Application—an application to be a dispensing organization under former s. 381.986, F.S. (2014), that was timely submitted in accordance with Rule 64-4.002(5) of the Florida Administrative Code (2015).
(b) Final Ranking—an applicant’s aggregate score for a given region as provided in the column titled “Final Rank” within the November 2015 [Final Scorecard], incorporated by reference and available at http://www.floridahealth. gov/programs-and-services/office-of-medical-marijuana-use /medical-marijuana-treatment-centers/dispensing-application -process/index.html, as the final rank existed on November 23, 2015.
(c) Highest Final Ranking—the final rank with the highest point value for a given region, consisting of an applicant’s aggregate score as provided in the column titled “Final Rank” within the November 2015 Aggregated Score Card, as the final rank existed on November 23, 2015.
(d) Within One Point—one integer (i.e., whole, non-rounded number) carried out to four decimal points (i.e., 1.0000) by subtracting an applicant’s final ranking from the highest final ranking in the region for which the applicant applied.
(e) Qualified 2015 Applicant—an individual or entity whose application was reviewed, evaluated, and scored by the department and that was denied a dispensing organization license under former s. 381.986, F.S. (2014) and either: (1) had one or more administrative or judicial challenges pending as of January 1, 2017; or (2) had a final ranking within one point of the highest final ranking in the region for which it applied, in accordance with Rule 64-4.002(5) of the Florida Administrative Code (2015).
(f) Region—the Northwest, Northeast, Central, Southwest, or Southeast region of Florida, individually, as each existed on November 23, 2015, in accordance with Rule 64-4.001(9) of the Florida Administrative Code (2015).
18
(g) Reviewed, Evaluated, and Scored—the review, evaluation, and scoring conducted by the department during the July 2015 through November 23, 2015 application cycle, of applications submitted to the department by applicants under former s. 381.986, F.S. (2014).
(2) To be considered for registration as a medical marijuana treatment center in accordance with s. 381.986(8)(a)2.a., F.S., qualified 2015 applicants must file a request for registration with the department’s Office of Medical Marijuana Use.
Fla. Admin. Code R. 64ER17-3 (2017).
After the Department adopted rule 64ER17-3, KSG amended its unadopted-
rule petition to then challenge rule 64ER17-3, arguing that the One-Point Provision’s
term final ranking should be interpreted to mean the applicants’ positional ranks,
labeled in the Final Scorecard as Regional Ranks. Tr. 74; R.2240, 2316–17, 2866.
Under KSG’s interpretation, Costa’s final ranking would be 5, KSG’s would be 4,
and Nature’s Way’s would be 2. Nature’s Way also filed a petition challenging rule
64ER17-3 and the 2015 Scoring Methodology. R.21–31. The KSG and Nature’s
Way rule-challenge proceedings were consolidated. R.61.
During the course of the KSG proceeding, the Department was persuaded that
KSG’s interpretation of the One-Point Provision was not unreasonable and not
necessarily inconsistent with the statute. Tr. 73–76; R.2316–19. Accordingly, the
Department adopted Florida Administrative Code Emergency Rule 64ER17-7 (the
Emergency Rule), which includes an amended definition of the statutory term final
ranking. R.2321. The Emergency Rule expressly supersedes rule 64ER17-3 and
19
provides, in pertinent part,
64ER17-7 Registration as Medical Marijuana Treatment Centers for Qualified 2015 Applicants.
This emergency rule supersedes the emergency rule 64ER17-3 which was filed and effective on September 28, 2017.
(1) For the purposes of implementing s. 381.986(8)(a)2.a., F.S., the following words and phrases shall have the meanings indicated:
. . .
(b) Final Ranking—an applicant’s aggregate score for a given region as provided in the column titled “Final Rank” or the applicant’s regional rank as provided in the column titled “Regional Rank” within the November 2015 [Final Scorecard], incorporated by reference and available at http://www.floridahealth.gov/programs-andservices/office-o f-medical-marijuana-use/medical-marijuana-treatment-cente rs/dispensing-application-process/index.html, as the final rank existed on November 23, 2015.
(c) Highest Final Ranking—the final rank with the highest point value for a given region, consisting of an applicant’s aggregate score as provided in the column titled “Final Rank” or the applicant’s regional rank as provided in the column titled “Regional Rank” within the November 2015 Aggregated Score Card, as the final rank existed on November 23, 2015.
(d) Within One Point—for the aggregate score under the column “Final Rank” one integer (i.e., whole, nonrounded number) carried out to four decimal points (i.e., 1.0000) or for the regional rank under the column “Regional Rank” one whole number difference, by subtracting an applicant’s final ranking from the highest final ranking in the region for which the applicant applied.
Fla. Admin. Code R. 64ER17-7(1)(b)–(d) (underscored type reflects additional
20
language).
When Nature’s Way filed its petition challenging emergency rule 64ER17-3,
Nature’s Way also submitted to the Department an application for MMTC licensure
pursuant to the One-Point Provision. R.1856–57. The Department adopted the
Emergency Rule when Nature’s Way’s rule-challenge petition was pending. R.77.
Nature’s Way then amended its rule-challenge petition to assert a challenge to the
Emergency Rule’s subsections 64ER17-7(b)–(d) as well as to the 2015 Scoring
Methodology. R.76–97.
On January 17, 2018, the Department issued its decision denying Nature’s
Way’s 2017 application for MMTC licensure under the One-Point Provision.
R.1860–61. The same day, Nature’s Way filed a petition requesting a “formal”
(section 120.57(1), Florida Statutes) administrative hearing on its licensure denial.
R.220–31. The Department referred this petition to DOAH, where the licensure-
denial proceeding was consolidated with Nature’s Way’s rule challenge. By that
point, the Department had settled with KSG and the KSG and Nature’s Way
proceedings at DOAH were severed. R.72–73.
A one-day evidentiary hearing was held on March 28, 2018, before ALJ John
G. Van Laningham. R.419. The ALJ issued a final order finding the Emergency
Rule’s subsections 64ER17-7(b)–(d) to be an invalid exercise of delegated
legislative authority and the 2015 Scoring Methodology to be an unadopted rule.
21
R.509. According to the ALJ, those subsections of the Emergency Rule (1) “[are]
ambiguous because [they] confuse[] the concepts of ranking and scoring,” R.481;
(2) exceed the Department’s grant of rulemaking authority as the subsections attempt
to impermissibly “exercise quasi-judicial authority,” R.497–98; and (3) are arbitrary
because they are based on a purportedly incorrect view “that the aggregate scores
truly are interval data that tell us precisely how much suitability one applicant was
found to have had in comparison to another” and are capricious for being irrational,
R.498–99. The ALJ also concluded that the 2015 Scoring Methodology is an
unadopted rule because it is generally applicable and used to determine applicants’
substantial interests. R.502–03. This appeal followed.
SUMMARY OF ARGUMENT
The Emergency Rule’s subsections 64ER17-7(b)–(d) are not an invalid
exercise of delegated legislative authority. The Emergency Rule is consistent with
and does not contravene or modify the statute implemented, the One-Point
Provision. Through the One-Point Provision, the legislature established the 2015
Scores as criteria for licensure under that provision. Although Nature’s Way and the
ALJ contend the Department was required to round the 2015 Final Ranks to the
nearest whole number, the One-Point Provision does not authorize the Department
to round or otherwise modify any 2015 Score.
As to Nature’s Way’s challenge to the 2015 Scoring Methodology as being an
22
unadopted rule, DOAH should have dismissed that portion of Nature’s Way’s
petition. Nature’s Way’s Final Rank became final agency action in 2015 and may
not be challenged now, in a proceeding initiated in 2017. Because it waived all rights
to bring such a challenge when it failed to timely challenge its 2015 application
denial, Nature’s Way lacked standing to challenge the 2015 Scoring Methodology.
For the same reason, DOAH lacked subject-matter jurisdiction to consider Nature’s
Way’s unadopted-rule challenge. Finally, the 2015 Scoring Methodology is simply
not a rule, as it was used and intended to be used only one time, for a single batch of
DO applications under a statute and rule that have been repealed.
STANDARD OF REVIEW
A final order in a rule-challenge or unadopted-rule-challenge proceeding is
subject to the general standards of review set forth in section 120.68, Florida
Statutes. Although an ALJ’s findings of fact in a rule challenge or unadopted-rule
challenge are generally reviewed for support by competent, substantial evidence,
here the ALJ’s erroneous findings of fact are based on the ALJ’s incorrect
construction of a statute and administrative rules, requiring de novo review, e.g.,
Fla. Birth-Related Neurological Compensation Ass’n v. Dep’t of Admin. Hearings,
29 So. 3d 992, 997–98 (Fla. 2010); Smith v. Sylvester, 82 So. 3d 1159, 1161 (Fla.
1st DCA 2012). The Court reviews an ALJ’s conclusions of law in a rule challenge
or unadopted-rule challenge de novo. E.g., Grabba-Leaf, LLC v. Dep’t of Bus. &
23
Prof’l Regulation, -- So. 3d --, 2018 WL 5797205, at *2 (Fla. 1st DCA Nov. 6, 2018).
ARGUMENT
I. The Emergency Rule is not an invalid exercise of delegated legislative authority.
The Emergency Rule is consistent with and does not contravene or modify the
One-Point Provision or any other provision of section 381.986, Florida Statutes.
Nature’s Way challenged three subsections of the Emergency Rule: 64ER17-7(b)–
(d), which contain definitions for implementing the One-Point Provision. As
explained below, those definitions are reasonable and are consistent with the plain
language of and legislative intent behind the One-Point Provision.
An agency rule may be challenged only on the basis that the rule is an invalid
exercise of delegated legislative authority. See, e.g., § 120.56(1)(a), Fla. Stat. A
proposed rule is an invalid exercise of delegated legislative authority if:
a. The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in chapter 120, Florida Statutes;
b. The agency has exceeded its grant of rulemaking authority, citation to which is required by section 120.54(3)(a)1;
c. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by section 120.54(3)(a)1;
d. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
e. The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is
24
capricious if it is adopted without thought or reason or is irrational; or
f. The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.
§ 120.52(8), Fla. Stat.
An agency is empowered to adopt rules where there are both (1) a statutory
grant of rulemaking authority, or statutory language explicitly authorizing or
requiring the agency to adopt rules, and (2) a specific law to be implemented. E.g.,
Whiley v. Scott, 79 So. 3d 702, 710 (Fla. 2011). The legislature delegates rulemaking
authority to agencies because agencies generally have expertise in the particular area
for which they are given oversight. E.g., id. Section 381.986(8), Florida Statutes
(2017), is both the statutory authority for and the law implemented by the Emergency
Rule.4
Here, Nature’s Way limited its attack to four legal bases, arguing that the
Emergency Rule’s subsections 64ER17-7(b)–(d) (1) modify or contravene the
specific provisions of law implemented, (2) exceed the Department’s grant of
rulemaking authority, (3) are arbitrary and capricious, and (4) are vague. Am. Pet.,
¶ 16. However, the crux of Nature’s Way’s challenge can be boiled down to a single
4 Nature’s Way did not argue and the ALJ did not conclude that the Department lacked authority to adopt the Emergency Rule. Indeed, the Department has express authority to do so. See ch. 2017-232, § 14(1).
25
argument: that the Department should not have used the 2015 Final Ranks and
Regional Ranks as they existed in November 2015 in the Emergency Rule. Instead,
Nature’s Way contends that the Department should have modified those scores by
rounding.
But the legislature did not authorize the Department to round or otherwise
modify the 2015 Final Ranks as the baseline criteria for licensure under the One-
Point Provision. See § 381.986(8)(a)2.a., Fla. Stat. (2017). Instead, the legislature
directed the Department to look to and use the 2015 Final Ranks and other scores as
criteria of licensure.
II. The Emergency Rule does not modify or contravene the specific provisions of law implemented.
A. The legislature established the 2015 scores as criteria for MMTC licensure.
As stated above, in 2017 the legislature amended section 381.986 to (among
other things) instruct the Department to grant 10 MMTC licenses in addition to those
licenses the Department had previously issued. The amended statute also instructed
the Department to grant 10 additional licenses to applicants meeting specific criteria.
Most relevant here, any denied 2015 applicant that met the following conditions and
criteria would be eligible for a license:
As soon as practicable, but no later than August 1, 2017, the department shall license any applicant whose application was reviewed, evaluated, and scored by the department and which was denied a dispensing organization license by the department under former s. 381.986, Florida Statutes 2014;
26
which . . . had a final ranking within one point of the highest final ranking in its region under former s. 381.986, Florida Statutes 2014; which meets the requirements of this section; and which provides documentation to the department that it has the existing infrastructure and technical and technological ability to begin cultivating marijuana within 30 days after registration as a medical marijuana treatment center.
§ 381.986(8)(a)2.a., Fla. Stat. (2017) (emphasis added).
The polestar guiding a court’s statutory-interpretation analysis is legislative
intent. See, e.g., State, Dep’t of Revenue v. Lockheed Martin Corp., 905 So. 2d 1017,
1020 (Fla. 1st DCA 2005). The legislature is presumed to have expressed its intent
through the words it chose to use in the statute—words the legislature is presumed
to know the meaning of. See, e.g., id. Therefore, the first step in construing a statute
is to examine the plain language of the statute itself. See, e.g., State v. J.M., 824 So.
2d 105, 109 (Fla. 2002).
When a statute’s language is unambiguous and conveys a clear and definite
meaning, courts are precluded from looking beyond that language or turning to
statutory construction rules to determine the legislative intent behind the statute.
Lockheed Martin, 905 So. 2d at 1020. Rather, the plain and ordinary meaning of the
statute’s words controls. State v. Burris, 875 So. 2d 408, 410 (Fla. 2004). Thus, a
court may not depart from the plain meaning of an unambiguous statute even if the
court is convinced that the legislature really meant or intended something not
expressed in the phraseology of the statute. Fla. Birth-Related Neurological Injury
27
Compensation, 29 So. 3d at 997–98. Likewise, a court may not look beyond the
statute to seek a reason to doubt the statute’s language, then use that outside reason
as a basis for giving the statute a meaning different than that the legislature settled
on to express its intent. See Fla. State Racing Comm’n v. McLaughlin, 102 So. 2d
574, 576 (Fla. 1958).
Only when a statute is ambiguous may courts turn to statutory construction
rules, such as an examination of legislative history. See, e.g., Lockheed Martin, 905
So. 2d at 1020; see also Rinker Mats. Corp. v. City of N. Miami, 286 So. 2d 552, 554
(Fla. 1973) (reiterating “the first rule of statutory construction” that “the legislative
history of an act is important to courts only when there is doubt as to what is meant
by the language employed” (citation and internal quotation marks omitted)). But
ambiguity is more than the litigants’ disagreement over the application of a statute;
if such were the case, every lawsuit would involve ambiguity. Rather, ambiguity
exists only when a statute’s language on its face is subject to more than one
reasonable interpretation and may permit more than one outcome based on the plain
language. See Nicarry v. Eslinger, 990 So. 2d 661, 664 (Fla. 5th DCA 2008). As
this Court has recognized, “although virtually every English sentence contains some
level of uncertainty, rules of statutory construction are reserved for cases in which a
fair reading of the statute leaves a court in genuine doubt about the correct
application of the statute.” Lockheed Martin, 905 So. 2d at 1020 (citation omitted).
28
When drafting the One-Point Provision, the legislature plainly spelled out the
criteria for licensure. To qualify under the One-Point Provision for one of the 10
new MMTC licenses, the applicant must have submitted an application in 2015 that
“was reviewed, evaluated, and scored by the department” and the applicant must
have been “denied a dispensing organization license by the department under
former s. 381.986, Florida Statutes 2014” and have “had a final ranking within
one point of the highest final ranking in its region under former s. 381.986,
Florida Statutes 2014.” § 381.986(8)(a)2.a, Fla. Stat. (2017) (emphasis added).
First, those words are expressed in the past tense, referring directly to applications
in the 2015 application batch. Indeed, to qualify under the One-Point Provision, an
applicant’s 2015 application must have been reviewed, evaluated, and scored. Thus,
in the One-Point Provision the legislature conditions licensure on events occurring
during a specific time: the 2015 application batch cycle in which the Department
reviewed, evaluated and scored more than two dozen applications.
Second, and again using the past tense, the legislature refers to the “final
ranking in its region,” § 381.986(8)(a)2.a, Fla. Stat. (2017) which is another direct
reference to the “final” rankings from November 2015. The legislature’s use of the
phrase in its region is also meaningful because although under the 2014 Act the state
was divided into regions for the 2015 application batch, regional licensing was
eliminated by the 2017 revisions to section 381.986. Thus, on the whole, the One-
29
Point Provision on its face establishes the 2015 Scores as criteria for MMTC
licensure pursuant to that provision. The Emergency Rule is entirely consistent with
and does not modify or contravene the One-Point Provision in this regard. If the
legislature wanted different eligibility criteria or wanted to use different words, it
could have. See, e.g., Regency Towers Owners Ass’n v. Pettigrew, 436 So. 2d 266,
268 (Fla. 1st DCA 1983) (noting that courts are not at liberty to ignore language
legislature chose to use). But it did not.
The next critical aspect of the One-Point Provision—and the crux of the case
below—is the statutory phrase (expressed in the past possessive tense) had a final
ranking within one point of the highest final ranking in its region. One point is not
an ambiguous term. Accordingly, to challenge denial of its 2017 MMTC-licensure
request, Nature’s Way argued that the Department was required to round the 2015
Final Ranks and other scores to account for “spurious digits” allegedly generated by
the 2015 Scoring Methodology. Despite his acknowledgement that the One-Point
Provision required consideration of the 2015 Scores, the ALJ agreed with Nature’s
Way. But the legislature did not direct the Department to base MMTC licensure on
rounded or recalculated Final-Rank or Regional-Rank numbers. See
381.986(8)(a)2.a., Fla. Stat. (2017). Instead, the One-Point Provision reflects the
legislature’s intent that the Department look to the final ranking an applicant “had”
received in 2015 based on the Department’s 2015 review, evaluation, and scoring of
30
the applications for each region.
There is no basis to conclude, as the ALJ did here, that the One-Point
Provision requires the Department to round to the nearest integer, or whole number,
every 2015 Final Rank reflected in 2015’s Final Scorecard. The mathematical
principles of significant and spurious digits do not apply here, where the legislature
established the licensure criteria and instructed the Department which specific
numbers to consider in determining licensure eligibility. There is nothing in the One-
Point Provision (or the Florida Statutes generally) requiring, warranting, or even
authorizing the Department to round Final Ranks to the nearest whole number when
determining a 2015 applicant’s eligibility for MMTC licensure under the One-Point
Provision. Again, if the legislature wanted the Department to do so, the legislature
could have used different words. Again, the legislature did not.
The mathematical principles of significant and spurious digits also do not
apply here because rule 64-4.002 (2015)’s required weighting of section and
subsection scores and the nature of averaging the scores assigned by the three
evaluators by mathematical necessity resulted in Final Ranks consisting of fractional
numbers. The Department’s decision to carry Final Ranks out to the fourth decimal
place, or ten-thousandths of a point, was justifiable and reasonable under the
circumstances in 2015. Moreover, the legislature is presumed to have been aware
that the Final Ranks were carried out to the fourth decimal place, but did not enact a
31
statutory provision authorizing or directing the Department to disregard those
numbers.
B. Historical context and legislative history also support the Department’s position.
Assuming for argument’s sake that the One-Point Provision’s plain language
is susceptible of more than one reasonable interpretation, the same conclusion must
be reached: either way, the legislature intended for the 2015 Scores—unmodified—
to be criteria for MMTC licensure under the One-Point Provision.5
The Department’s initial construction of the One-Point Provision (as set forth
in former Florida Administrative Code Rule 64ER17-3) was that the phrase a final
ranking within one point of the highest final ranking referred to the aggregate scores
the Department assigned DO-license applicants in 2015, as reflected in the Final
Rank column of the Final Scorecard. This construction was based in part on the
One-Point Provision’s plain language and in part on the Department’s knowledge of
the legislative intent behind the One-Point Provision. R.1970, 1990–91, 2293, 2303,
2305; Tr. 103–05.
5 The ALJ was incorrect when he declared that the One-Point Provision cannot be both “unartfully crafted” and written in plain language, R.454. In Kasischke v. State, 991 So. 2d 803, 807 (Fla. 2008), the Florida Supreme Court construed a statute that the court described as “undeniably susceptible to multiple and irreconcilable interpretations.” Id. at 807 (citation omitted). The court then explained that “[t]he plain language of the statute could be construed in at least four ways,” id. (emphasis added)—thus recognizing that statutory language can be both “plain” and susceptible to more than one interpretation.
32
The uncontroverted evidence admitted at final hearing showed that the
Department possesses substantial knowledge—obtained through the Department’s
Office of Medical Marijuana Use then-Director Christian Bax’s extensive
discussions about the Final Scorecard with legislators and legislative staff, R.1970,
1990–91, 2293, 2303, 2305; Tr. 103–05—of what the legislature intended when
enacting the One-Point Provision. This fact, coupled with the fact that the Final
Scorecard was included in the legislative record (including staff analyses) as the bill
that was adopted as the 2017 Law (SB8-A) moved through various legislative
committees, R.3172, shows that in enacting the One-Point Provision, the legislature
intended the Department to use the 2015 Final Ranks and other scores set forth in
the Final Scorecard. R.1970, 1989, 2293, 2303, 2305, 2314–15; Tr. 103–05; R.3172.
Courts and administrative agencies (like the Department and DOAH) may not
presume the legislature would have chosen different statutory language had the
legislature known during the 2017 Special Session of what the ALJ considered to be
deficiencies in the 2015 Scoring Methodology.
As stated above, during the rule-challenge proceeding brought by denied
Southeast-region 2015 applicant KSG, the Department was persuaded that KSG’s
interpretation of the One-Point Provision was not unreasonable and not inconsistent
with the statute’s plain language. Tr. 73–76; R.2316. The Department therefore
adopted the Emergency Rule, amending its definition of the statutory term final
33
ranking to include the scores in the Final Scorecard’s Regional Rank column.
R.2321.
In short, the One-Point Provision’s plain language could be construed two
ways—neither of which involves the Department rounding the applicants’ 2015
Final Ranks, but both of which allow the “second best” 2015 applicant in a region
to receive a license. If the Court determines this amended definition including
Regional Ranks constitutes an invalid exercise of delegated legislative authority,
then only that portion of the Emergency Rule6 should be deemed invalid—not the
rest of the rule. See, e.g., § 120.56(3)(b), Fla. Stat.
Ultimately, the One-Point Provision’s plain language; former-Director Bax’s
discussions with legislators and legislative staff; the legislature’s reliance on the
Final Scorecard; and the lack of any statutory language authorizing the Department
to round, recalculate, or otherwise modify the 2015 Final Ranks and other scores
show that through the One-Point Provision, the legislature was validating and
intended the Department to use the scores contained in the Final Scorecard—as-is,
without any rounding or recalculation. The first reasonable interpretation is that
the statutory term final ranking refers to the aggregate scores the Department
6 That portion would be subsection 64ER17-7(b)’s language or the applicant’s regional rank as provided in the column titled “Regional Rank”); subsection 64ER17-7(c)’s language or the applicant’s regional rank as provided in the column titled “Regional Rank”; and subsection 64ER17-7(d)’s language or for the regional rank under the column “Regional Rank” one whole number difference.
34
assigned DO applicants in 2015, as reflected in the Final Scorecard’s Final Rank
column. The second reasonable interpretation is that the statutory term final ranking
refers to the scores listed in the Final Scorecard’s Regional Rank column. In either
instance, the statutory term within one point means within 1.0000 points of the
highest Final Rank or Regional Rank.
In contrast, an unreasonable interpretation of the One-Point Provision is the
one advanced by Nature’s Way and the ALJ himself: that the Department was
required to round the Final Ranks to the nearest whole number, or integer. But the
statute simply does not provide as much, nor does the legislative history support that
interpretation. Nature’s Way and the ALJ’s interpretation conflicts with the One-
Point Provision’s plain language and thus is not a reasonable interpretation of that
provision.
Further, the ALJ erred in concluding that the legislature plainly intended that
a one-point difference between any two DO applicants would be the same as a one-
point difference between any other two DO applicants. There is simply no basis for
this conclusion—not in the One-Point Provision, not in the One-Point Provision’s
legislative history, not in the evidence admitted below, and not elsewhere in Florida
law. Courts and administrative agencies (including DOAH and the Department) may
not presume legislative intent not reflected in the statute in question or its legislative
history.
35
Finally, it bears noting that if the ALJ’s line of erroneous reasoning were
correct, the entire 2015 scoring and final-ranking processes would be void. Because
the legislature did not direct or authorize the Department to re-score the 2015 DO
applications or to round or otherwise recalculate the Final Ranks and Regional Ranks
found in 2015’s Final Scorecard, adoption of the ALJ’s reasoning would leave all
2015 applicants without any Final Ranks or Regional Ranks on which to base
MMTC licensure. Adoption of the ALJ’s reasoning would impermissibly render the
statutory language superfluous and lacking in effect, see, e.g., Hechtman v. Nations
Title Ins. of N.Y., 840 So. 2d 993, 996 (Fla. 2003) (“It is an elementary principle of
statutory construction that significance and effect must be given to every word,
phrase, sentence, and part of the statute if possible, and words in a statute should not
be construed as mere surplusage.”)
In sum, the legislature established the 2015 Scores as criteria for licensure and
directed the Department to use the 2015 Scores as criteria for approving MMTC
licensure for those 2015 applicants that received Final Ranks within one point of the
highest-ranked applicant in their respective regions. The numbers contained in the
Final Scorecard must be used as-is, without any rounding or other modification,
when applying the One-Point Provision. The Emergency Rule correctly construes
and comports with the One-Point Provision and thus is not an invalid exercise of
delegated legislative authority.
36
III. DOAH should have dismissed Nature’s Way’s petition as to the 2015 Scoring Methodology allegedly being an unadopted rule.
Approximately two years after the Department scored and denied Nature’s
Way’s application, Nature’s Way filed a petition challenging the 2015 Scores as
being based on an unadopted rule: the 2015 Scoring Methodology. Yet Nature’s
Way lacked standing to challenge the 2015 Scoring Methodology as being an
unadopted rule, as Nature’s Way waived any right to bring such an action and as it
was not substantially affected in 2017 by any alleged unadopted rule from 2015.
Standing is a jurisdictional, threshold issue, and only a party that is substantially
affected by an agency statement has standing to challenge the statement as being an
unadopted rule, see, e.g., § 120.56(4)(a), Fla. Stat.; Office of Ins. Regulation & Fin.
Servs. Comm’n v. Secure Enters., L.L.C., 124 So. 3d 332, 336 (Fla. 1st DCA 2013).
A. Nature’s Way’s Final Rank of 2.8833 became final agency action in 2015 and may not be challenged now, in a proceeding initiated in 2017.
Preliminary agency action generally becomes final agency action 21 days
after a substantially affected party receives notice of the action, unless a petition
challenging the action is filed within that time. See, e.g., Fla. Admin. Code R. 28-
106.111(4); Capeletti Bros., Inc. v. State, Dep’t of Transp., 362 So. 2d 346, 348–49
(Fla. 1st DCA 1978). A party that fails to challenge final agency action within the
21-day window waives its opportunity to challenge the final agency action. See,
e.g., Fla. Admin. Code R. 28-106.111(4); St. Joseph Hosp. of Charlotte, Fla., Inc. v.
37
Dep’t of Health & Rehab. Servs., 559 So. 2d 595 (Fla. 1st DCA 1989); S. Fla. Reg’l
Planning Council v. State Land & Water Adjudicatory Comm’n, 372 So. 2d 159,
166–67 (Fla. 3d DCA 1979). This is true even where a petitioner timely files a
petition, but voluntarily dismisses the petition before a final order is entered. See,
e.g., John A. McCoy Fla. SNF Tr. v. State of Fla., Dep’t of Health & Rehab. Servs.,
589 So. 2d 351, 352 (Fla. 1st DCA 1991) (declaring that when a challenge to
preliminary agency action “is abandoned by voluntary dismissal, [the] preliminary
action becomes effective as final agency action”), disapproved on other grounds,
Wiregrass Ranch, Inc. v. Saddlebrook Resorts, Inc., 645 So. 2d 374 (Fla. 1994);
RHPC, Inc. v. Dep’t of Health & Rehab. Servs., 509 So. 2d 1267, 1268 (Fla. 1st
DCA 1987) (holding that once petitioner voluntarily dismissed petition, “the earlier
free-form denial . . . by [the agency] took force and became final agency action”).
A party that never files a petition to begin with fares no better. This is a legislative
directive, as the APA itself provides for warning persons that failure to challenge an
agency decision within the time allotted will result, as a matter of law, in the waiver
of any rights to later challenge the agency decision under the APA. See, e.g., Fla.
League of Cities, Inc. v. Admin. Comm’n, 686 So. 2d 397, 413 (Fla. 1st DCA 1991).
Nature’s Way’s Final Rank of 2.8833 became final in December 2015, 21
days after the Department’s denial of Nature’s Way’s 2015 DO application through
the 2015 Denial Letter. See, e.g., Fla. Admin. Code R. 28-106.111(4); Capeletti,
38
362 So. 2d at 348–49. The 2015 Denial Letter contained a plain and unequivocal
notice of rights. By not challenging its 2015 application denial, Nature’s Way
accepted and waived the right to challenge the Final Rank (and all other 2015 Scores)
the Department determined its application merited. See Fla. Admin. Code R. 28-
106.111(4).
Contrary to what the ALJ concluded, that the Department did not specifically
include Nature’s Way’s and Costa’s Final Ranks in the 2015 Denial Letter is legally
irrelevant here. The 2015 Denial Letter contained the statutorily mandated notice of
APA rights, see, e.g., Fla. League of Cities, 686 So. 2d at 413, and expressly
informed Nature’s Way that the failure to file a petition within 21 days would
constitute a waiver of the right to request a hearing on the Department’s agency
action.
Importantly, if an agency provides a clear point of entry to challenge agency
action—as the Department did through the 2015 Denial Letter containing notice of
Nature’s Way’s APA rights, R.1855—those objections to the agency action that
could have been asserted in an administrative proceeding are deemed waived. See,
e.g., Hubschman Assocs., Ltd. v. Collier Cnty., Case No. 93-8-CIV-FTM-21D, 1993
WL 761342, at *1 (M.D. Fla. Dec. 13, 1993). In other words, in addition to the
Department’s scoring decision, all actions the Department took during the free-form
process underlying the decision, which included the evaluation and scoring of
39
applications and the calculation of Final Ranks and Regional Ranks, became final in
December 2015.
Moreover, Nature’s Way’s Final Rank of 2.8833 may not be collaterally
attacked in an unadopted-rule challenge, such as Nature’s Way’s challenge to the
2015 Scoring Methodology. Although the APA allows an unadopted-rule challenge
to be initiated through the same petition initiating a challenge to agency action where
material facts are disputed or consolidated with a challenge to agency action where
material facts are disputed, see § 120.57(1)(e), Fla. Stat., an unadopted-rule
challenge may not be used to collaterally attack prior final agency action. See, e.g.,
State, Dep’t of Health & Rehab. Servs. v. Barr, 359 So. 2d 503, 505 (Fla. 1st DCA
1978) (“Nothing in the [Administrative Procedure] Act gives hearing officers
collateral review power over final agency action taken after regular proceedings
under other provisions of the Act.” (emphasis added)). Once agency action becomes
final (through a substantially affected party’s inaction or through an administrative
or judicial determination that the action is not precluded by law), the action may not
be invalidated—regardless of the legal theory advanced by the petitioner.
Here, the ALJ erred in concluding otherwise. To rationalize his conclusion
that the “truth”7 of Nature’s Way’s Final Rank has never been adjudicated, the ALJ
7 Despite the ALJ’s conclusions, the scores were never “not truthful” or “untruthful”; they are opinion derived by evaluators after comparatively reviewing the merits of 28 applications over a three-month period, McDonald v. Dep’t of Banking & Fin.,
40
disregarded long-settled law. Throughout the proceeding, the Department
contended that Nature’s Way waived its right to challenge its 2015 Scores by failing
to challenge its 2015 application denial. In his separate recommended order
addressing denial of Nature’s Way’s 2017 MMTC-licensure request,8 the ALJ stated
that “[w]hat the Department is really trying to say is that . . . Nature’s Way is barred
by administrative finality from ‘relitigating’ matters, such as the truth of the
aggregate scores as quantifiable facts, which were supposedly decided conclusively
in the final agency action on its DO application in 2015.” The ALJ was mistaken,
setting up a straw man. After characterizing the Department’s argument as one
urging application of res-judicata or collateral-estoppel principles, the ALJ framed
the issue as whether the correctness of the Final Rank Nature’s Way earned in 2015
was ever adjudicated.9 Of course, as Nature’s Way never challenged its 2015
346 So. 2d 569, 579 (Fla. 1st DCA 1977), superseded by statute on other grounds as stated in Dep’t of Highway Safety & Motor Vehicles v. Schluter, 705 So. 2d 81, 87 & n.3 (Fla. 1st DCA 1997). The “truth” of those opinions could have been challenged by Nature’s Way in 2015. Nature’s Way knowingly elected not to do so, thereby waiving all rights to any APA proceedings regarding its 2015 Final Rank and other scores. 8 Although DOAH has final-order authority in a rule-challenge proceeding, such as Nature’s Way’s 2017 request for MMTC licensure, see § 120.56, Fla. Stat., DOAH has only recommended order authority in a proceeding involving denial of a license application, see § 120.57(1)(k), Fla. Stat. 9 The doctrine of res judicata bars relitigation of claims that were raised or could have been raised in prior litigation between the same parties involving the same cause of action. See, e.g., Topps v. State, 865 So. 2d 1253, 1255 (Fla. 2004). The doctrine of collateral estoppel bars relitigation of issues actually adjudicated in prior litigation between the same parties or their privies involving a different cause of
41
application denial, no adjudication was necessary. The Final Rank earned by
Nature’s Way in 2015 went from being preliminary agency action to being final
agency action, and Nature’s Way waived its right to APA proceedings to contest that
action. See supra § III.A.
B. Nature’s Way lacked standing to challenge the 2015 Scoring Methodology.
Standing is a jurisdictional, threshold issue in an APA proceeding, the
equivalent of subject-matter jurisdiction. See, e.g., Abbott Labs. v. Mylan Pharm.,
Inc., 15 So. 3d 642, 651 n.2 (Fla. 1st DCA 2009); Grand Dunes, Ltd. v. Walton Cnty.,
714 So. 2d 473, 475 (Fla. 1st DCA 1998). For this reason, where the complainant
lacks standing, a tribunal not only is prohibited from ruling on the merits of the suit,
but also is obligated to dismiss the suit. See, e.g., Abbott Labs., 15 So. 3d at 651 n.2;
Grand Dunes, 714 So. 2d at 475 (“This court has the right and the obligation to
remand a cause for dismissal where the party seeking relief did not have the initial
right to institute the suit.”).
Section 120.56(1)(a), Florida Statutes, provides that any person substantially
affected by “a proposed rule may seek an administrative determination of the
invalidity of the rule on the ground that the rule is an invalid exercise of delegated
action. See, e.g., id. The Department does not argue that either doctrine applies here. Instead, the Department has simply argued for application of the black-letter principle that when a point of entry is provided and not timely taken advantage of, waiver results.
42
legislative authority.” To establish that it is “substantially affected,” the party must
show (1) that the rule or policy will result in a real or immediate injury in fact and
(2) that the alleged interest is within the zone of interest to be protected or regulated.
Secure Enters., 124 So. 3d at 336.
A “real or immediate injury in fact” does not include an injury that is abstract,
conjectural, speculative, or hypothetical. See Village Park Mobile Home Ass’n, Inc.
v. State of Fla., Dep’t of Bus. Regulation, 506 So. 2d 426, 433 (Fla. 1st DCA 1987).
Rather, an unadopted-rule challenge petitioner must allege that it has sustained or is
immediately in danger of sustaining some direct injury as a result of the challenged
official conduct. Id. Stated differently, the petitioner’s allegations must be of
sufficient immediacy and reality to confer standing. Id. (citing Fla. Dep’t of
Offender Rehab. v. Jerry, 353 So. 2d 1230, 1236 (Fla. 1st DCA 1978), disapproved
on other grounds, Fla. Home Builders Ass’n v. Dep’t of Labor & Emp. Sec., 412 So.
2d 351 (Fla. 1982)).
Assuming for argument’s sake that the 2015 Scoring Methodology is an
unadopted rule, Nature’s Way was not substantially affected. First, the ruling would
not change the final agency action of Nature’s Way’s 2015 application denial, which
encompassed the Department’s Final-Rank, Regional-Rank, and other scoring
determinations. See supra § III.A. Second, the ruling would not override the 2017
legislative mandate that the Department use the existing 2015 Scores as reflected in
43
the Final Scorecard when applying the One-Point Provision. See supra § II.
Therefore, the ALJ erred in concluding that Nature’s Way has standing to
challenge the 2015 Scoring Methodology as an unadopted rule, and DOAH lacked
jurisdiction to determine whether the 2015 Scoring Methodology is an unadopted
rule.
C. The 2015 Scoring Methodology is not a rule.
Section 120.52(16), Florida Statutes, defines rule as an “agency statement of
general applicability that implements, interprets, or prescribes law or policy or
describes the procedure or practice requirements of an agency and includes any form
which imposes any requirement or solicits any information not specifically required
by statute or by an existing rule.” § 120.52(16), Fla. Stat. (emphasis added).
Rule 64-4.002 (2015) did not include an external benchmark or scoring scale.
Instead, the Application Form indicated that the applications for a given region
would be compared to each other. See id. This is the scoring system and process
that ALJ Watkins validated by final order in 2015. See Baywood Final Order,
DOAH Case No. 15-1694RP. It is the scoring process called for by Department
rule: rule 64-4.002 (2015). The 2015 Scoring Methodology therefore could not be
an unadopted rule. Further, the 2015 Scoring Methodology cannot be an unadopted
rule as the Department did not round the numbers, but instead applied the provisions
of rule 64-4.002 (2015), including the Application Form. Rule 64-4.002 (2015) itself
44
called for fractions or decimals as that rule assigned weights. Thus, the 2015 Scoring
Methodology was a natural consequence of the written, validated rule 64-4.002
(2015).
Additionally, the 2015 Scoring Methodology was used and intended to be
used only one time to select applicants for DO licensure under a statute and set of
administrative rules that are no longer in effect. The 2015 Scoring Methodology
allowed the Department to determine which applicants from a one-time batch were
entitled to receive the five exclusive DO licenses in 2015. The version of section
381.986 in effect at that time did not allow the Department to issue any additional
DO licenses. See generally § 381.986, Fla. Stat. (2014). Thus, there was no reason
for the Department to expect the 2015 Scoring Methodology ever to be used in the
future and no reason for the Department to adopt the 2015 Scoring Methodology
through the APA’s rulemaking process.
Accordingly, the 2015 Scoring Methodology is not a rule. The ALJ erred in
deeming it as such.
CONCLUSION
For the reasons explained above, the Court should reverse and vacate the final
order appealed and hold that the Emergency Rule is not an invalid exercise of
delegated legislative authority and the 2015 Scoring Methodology is not an
unadopted rule. Alternatively, the Court should reverse and vacate the final order
45
appealed and remand this matter to DOAH with instructions to enter a final order
consistent with the arguments asserted in this brief.
/s/ Eduardo S. Lombard Eduardo S. Lombard Florida Bar No. 0153590 Megan S. Reynolds Florida Bar No. 0042000 Vezina, Lawrence & Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301 (850) 224-6205 [email protected] [email protected] [email protected] Counsel for Appellant Florida Department of Health
CERTIFICATE OF SERVICE
I certify that on December 20, 2018, a copy of the foregoing was emailed to:
.
/s/ Eduardo S. Lombard Eduardo S. Lombard Florida Bar No. 0153590 Megan S. Reynolds Florida Bar No. 0042000 Vezina, Lawrence & Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301 (850) 224-6205 [email protected] [email protected] [email protected] Counsel for Appellant Florida Department of Health
CERTIFICATE OF TYPE SIZE AND STYLE
I certify that the font style and size in this brief is Times New Roman 14-point
font, meeting the font requirements of Florida Rule of Appellate Procedure
9.210(a)(2).
/s/ Eduardo S. Lombard Eduardo S. Lombard Florida Bar No. 0153590