The 2016 Amendments to the APA: Say Goodbye to United Wisconsin — and More
During the 2016 session, the Florida Legislature considered a number of bills affecting the Florida Administrative Procedure Act (APA) and the practice of administrative law. Among the bills that passed were 1) House Bill 183, which is a comprehensive APA bill that is similar to a bill that was vetoed last year; 2) House Bill 981, which clarifies the timeframe for an agency’s evaluation of a proposed rule’s economic impact; 3) House Bills 307 and 1313, which expedite the dispensing of medical marijuana and may also impact pending litigation involving medical marijuana; and 4) House Bill 7099, the annual “tax package,” which includes provisions that may impact recent litigation involving tax regulation. Other bills died but may be back in the future, including one that would have created a sunset review process for agency rulemaking authority.
Bills That Passed
• House Bill 183 Allows Rule Challenges Associated with F.S. §120.57 Proceedings. Relating to Administrative Procedures (C.S./C.S./C.S./H.B. 183). After previous attempts,2 including a veto last year,3 the legislature passed H.B. 183 sponsored by Representative Janet Adkins. This bill was designed to protect regulated persons from an agency’s use of an invalid or unadopted rule in enforcement, licensing, or other §120.57 proceedings. Among other things, the bill creates a new legal defense and allows a collateral rule challenge to such proceedings. The bill also requires agencies to publish a list of rules that, if violated, would constitute minor violations. In addition, the bill expedites administrative hearings on temporary special events permits.
1) New Legal Defense: H.B. 183 permits a person challenging an agency action involving disputed issues of material fact to contemporaneously raise as a defense that the agency’s rule was an invalid exercise of delegated legislative authority or that the agency’s statement was an unadopted rule.4 Effectively, the amendment allows a party to bring a rule challenge that can be applied retroactively to the specific case.5 Having this ability to challenge the validity of an adopted rule in a §120.57 proceeding has the potential to be a powerful remedy.6
Similar legislation passed during the 2015 regular session,7 but was vetoed by the governor. That legislation provided that the administrative law judge’s conclusions of law regarding a rule challenge defense under §120.57 could never be rejected by an agency in the final order.8 The governor’s veto message stated “the bill has the potential to inflict more harm on an agency’s ability to operate in an efficient and accountable manner…[and] alters the long-standing deference granted to agencies by shifting final action authority to an administrative law judge.”9 Under the 2016 legislation, the conclusions of law associated with a challenge to the validity of an existing rule under §120.57 may be rejected if the agency states with particularity that the conclusions are clearly erroneous.
2) Authorizes Collateral Rule Challenges: Additionally, H.B. 183 allows a person challenging an agency action involving disputed issues of material fact to bring a separate rule challenge under F.S. §120.56(4). This provision of the legislation directly impacts the ruling in United Wisconsin Life Insurance Co. v. Florida Department Insurance Regulation, 831 So. 2d 239, 240 (Fla. 1st DCA 2002). That case started as an enforcement proceeding. While the proceeding was pending, the insurance company brought a separate §120.56(4) action to challenge certain agency statements as nonrule policy. The administrative law judge concluded, and the First District Court of Appeal affirmed, that a petitioner “has no right to pursue a separate, collateral challenge to an alleged nonrule policy where an adequate remedy exists through a [§]120.57 proceeding.” H.B. 183 expressly allows a petitioner to bring separate §§120.56 and 120.57 actions. One potential benefit to bringing a collateral rule challenge pursuant to §120.56 is that the administrative law judge issues a final order (as opposed to a recommended order) in such cases.
The newly created defense combined with the express statement that a petitioner may bring a collateral rule challenge will provide petitioners options to ensure that invalid rules or unpromulgated statements are not used against them in enforcement or licensing cases. When evaluating these options, a petitioner should also consider the availability of an award of reasonable costs and attorneys’ fees. If a petitioner successfully brings a collateral rule challenge or argues a defense to a §120.57 action based on a determination that the agency’s action was an unadopted rule, reasonable costs and attorneys’ fees may be awarded. However, an award of reasonable costs and attorneys’ fees is not available for a successful determination regarding an existing rule, under the newly amended §120.57.10
3) Minor Violations: H.B. 183 also requires that by July 1, 2017, all agencies must review and publish a list of all rules that the agency has designated as rules that constitute a minor violation under F.S. §120.695, if violated. A violation of a rule is a minor violation if it does not result in economic harm, physical harm, the significant threat of harm, or adversely affect the public health, safety, or welfare. If an agency believes a person violated such a rule, the agency’s first response is limited to a notification. The notification must identify the specific rule that is being violated, provide information on how to comply with the rule, and specify a reasonable time for the person to comply with the rule. The notice of noncompliance may not be accompanied by a fine or other disciplinary penalty.
4) Publication: Under F.S. §120.54(7), any person may petition an agency to adopt, amend, or repeal a rule. Within 30 days from receiving such a petition, the agency must initiate rulemaking and hold a hearing to consider public comments or deny the petition. H.B. 183 requires agencies to publish a notice of rule development within 30 days after the initial public hearing.11 The agency must then publish a notice of proposed rule within 180 days of the notice of rule development, unless the agency files a statement in the Florida Administrative Register (FAR) justifying its reasons for failing to publish the notice. If rulemaking is initiated, the agency may not rely on the unadopted rule unless it publishes a statement in the FAR explaining why rulemaking is neither feasible nor practicable until the conclusion of the rulemaking proceeding. Additionally, agencies are required to publish a list in the FAR of any rules filed for adoption in the previous seven days and a list of all rules currently pending legislative ratification. H.B. 183 states each agency providing email notification services to its licensees or other registered recipients must also use such service to send out rule development and rule adoption notices with appropriate links to the rule on the secretary of state’s website or the agency’s website.
5) Expedited Hearings for Special Event Permits: Finally, a new provision was added this session. It requires an expedited administrative hearing for challenges to special event permits issued for submerged land leases. These special event permits are issued by the Department of Environmental Protection for the installation of temporary structures, including docks, moorings, pilings, and access walkways, on sovereign submerged lands solely for the purpose of facilitating boat shows and displays in, or adjacent to, established marinas or government-owned upland property. The legislation amends F.S. §403.8141 to provide that, upon the filing of a motion after a permit is challenged, a summary proceeding must be conducted within 30 days, regardless of whether the parties agree to the summary proceeding.12 This expedited procedure reduces the likelihood that a challenger can run out the clock on a temporary event.
6) Judicial Review: One issue addressed in the 2015 bill but not included in H.B. 183 relates to the judicial review of administrative orders.13 Section 120.68 provides that a party must file a notice of appeal or petition for review within 30 days in accordance with the Florida Rules of Appellate Procedure; however, the statute does not address what happens if a party — through no fault of its own — fails to obtain timely notice of an appealable administrative order. The 2015 legislation, which was vetoed by the governor, would have provided “if a party receives notice of the filing of the order later than the 25th day,” the time to file a notice of appeal is extended for 10 days after the date the party received notice.14
While this 2015 legislative proposal was well-intended, it likely would have produced significant additional litigation.15 It did not provide guidance to determine how a party “receives” notice of a final order. It failed to provide a standard or evidentiary process.16 It had the potential to cloud the current rebuttable presumption that receipt is created upon transmission.17 It also raised constitutional separation of powers concerns,18 as the Florida Supreme Court has the exclusive authority to adopt rules for practice and procedure in all Florida courts.19
Civil courts generally remedy the problem of untimely notice through an application of Fla. R. Civ. P. 1.540(b), which allows a court to vacate an order due to “mistake, inadvertence, surprise, or excusable neglect.”20 While Rule 1.540(b) does not apply to administrative actions, courts have fashioned a remedy by holding an administrative agency has the authority to reissue its final orders or correct its own orders that contain certain errors arising from mistake or inadvertence.21 Perhaps a future legislature may wish to codify this position in the APA, as parties to an administrative case should be afforded protections when the right to appeal is jeopardized through no fault of their own.
The act became effective on July 1, 2016. Ch. 2016-116, Laws of Fla.
• House Bill 981 Clarifies SERC Timing Requirements — Relating to Administrative Procedures (H.B. 981).In 2010, the legislature significantly amended the rulemaking process related to statements of estimated regulatory costs (SERC).22 A SERC must be prepared during promulgation of agency rules that are expected to affect small businesses or have an economic impact in excess of $1 million over the first five years after the rule becomes effective. H.B. 981 clarifies that if any provision of a rule is not fully implemented upon the effective date of the rule, the adverse impacts and regulatory costs associated with such provision must be adjusted to include any additional adverse impacts and regulatory costs estimated to occur within five years after full implementation of such provision.
The act became effective on July 1, 2016. Ch. 2016-232, Laws of Fla.
Several other bills that passed will be of interest to administrative lawyers, even though they do not expressly amend the APA.
• House Bills 307 & 1313 Affects Pending Litigation and Seeks to Expedite the Approval Process for the Medical Use of Cannabis — Relating to the Medical Use of Cannabis (C.S. for C.S./C.S./H.B. 307 & 1313).In 2014, the legislature enacted the Compassionate Medical Cannabis Act (CMCA), which authorizes dispensing organizations approved by the Department of Health (DOH) to manufacture, possess, sell, and dispense low-THC cannabis for medical use by patients suffering from certain conditions.
Under the CMCA, DOH was required to approve five dispensing organizations by January 1, 2015, with one in each of five designated regions. Implementation of the dispensing organization approval process initially was delayed due to litigation challenging proposed rules that addressed the initial application requirements for dispensing organizations. These rules finally took effect on June 17, 2015. The application process to become a dispensing organization closed in July 8, 2015, with 28 applications being submitted. On November 23, 2015, DOH announced the five approved dispensing organizations. Thirteen petitions23 were filed contesting DOH’s approval of these five dispensing organizations. This litigation has delayed the implementation of the CMCA.
Section 3 of C.S. for C.S./C.S./H.B. 307 and 1313 seeks to expedite this approval process, and, therefore, affects the pending litigation, by requiring DOH to grant cultivation authorization to permit operation as dispensing organization for those dispensing organizations that initially were approved under the DOH rule and meet certain other conditions.24
This section of the bill also requires DOH to grant approval to an applicant who initially received the highest aggregate score, through DOH’s evaluation process, but was disqualified based on the agency’s determination that the applicant failed to meet certain requirements,25 including that a listed owner or manager had failed a required background screening. An ALJ recently had determined that this owner/manager should not have been disqualified.26
Finally, §3 of the bill provides that, if an organization that does not meet these new criteria receives a final determination from DOAH, DOH, or a court of competent jurisdiction that it is entitled to be a dispensing organization (under the original criteria), such organization also shall be approved as a dispensing organization. This means that other applicants who challenged DOH’s initial approvals may continue to assert that their applications should be approved.27
This act took effect on March 28, 2016. Chapter 2016-123, Laws of Fla.
• House Bill 7099 Impacts Decisions Related to Tobacco Taxes — Relating to Taxation (H.B. 7099). H.B. 7099 provides tax relief to many Floridians and modifications designed to improve tax administration. The analysis below is limited to the legislative efforts to address recent administrative cases related to the regulation of other tobacco products by the Department of Business and Professional Regulation (DBPR). Other tobacco products include items such as pipe tobacco, chewing tobacco, hookah tobacco, and dipping tobacco. The first group of cases relates to the wholesale sales price of the taxable tobacco products. The second set of issues relates to whether cigar wraps constitute taxable tobacco products.
In 2012, the court in Micjo, Inc. v. Department of Business and Professional Regulation, 78 So. 3d 124 (Fla. 2d DCA 2012), interpreted the phrase “wholesale sales price” to exclude non-tobacco charges, such as federal excise taxes and shipping charges from the taxable base of the wholesale tax imposed on other tobacco products. Initially, DBPR allowed tobacco companies to seek refunds for the overpayment of taxes, but in the fall of 2013, DBPR decided to limit the Micjo decision to foreign manufacturers. A number of domestic companies challenged this change of policy, and just before the end of the 2016 regular session, DBPR’s new policy statement was found to be an unadopted rule in violation of F.S. §120.54(1)(a).28 On March 11, 2016, the legislature passed an amendment to the definition of wholesale sales price to expressly include federal excise taxes, charges for transportation and delivery, any discounts provided by an affiliate, and any other charges, even if listed as a separate item on the invoice. The legislation codified DBPR’s policy and ultimately may remove the necessity for DBPR to promulgate a permanent rule.
In Brandy’s Products, Inc. v. Department of Business and Professional Regulation, 41 Fla. L. Weekly D849 (Fla. 1st DCA Apr. 6, 2016), DBPR assessed a company nearly $72,000 in taxes, surcharges, penalties, and interest related to its distribution of cigar wraps to Florida retailers. The ALJ issued an order recommending that the assessment be set aside because “a blunt wrap is no more loose tobacco than a piece of writing paper is loose wood.”29 DBPR rejected the recommendation and issued a final order directing the company to pay the assessment in full.30 Brandy’s Products appealed, and the First District Court of Appeal reversed DBPR’s determination that cigar wraps were taxable “other tobacco products.” While an amendment to the statutory definition of “other tobacco products” did not ultimately pass the 2016 Legislature, Judge Wetherell’s opinion correctly highlights that the legislature proposed amendments during the 2015 and 2016 session to make cigar wraps taxable.31
The act became effective on July 1, 2016. Chapter 2016-220, Laws of Florida.
• House Bill 1361 Establishes Deadlines for Final Action on an ALJ’s Recommended Order Regarding a Challenged Comprehensive Plan Amendment — Relating to Growth Management (C.S./C.S./H.B. 1361). H.B. 1361, generally dealing with growth management, provides that recommended orders submitted to the Department of Economic Opportunity (DEO) by an ALJ regarding a challenged comprehensive plan amendment become final within certain periods absent agency action or an agreement to extend the time.
In cases in which the ALJ recommends that the amendment be found in compliance, the recommended order becomes the final order 90 days after issuance unless within that time: DEO finds the plan amendment to be in compliance and issues its final order; DEO finds the plan amendment not in compliance and refers the recommended order to the Administration Commission for final action; or all parties consent in writing to an extension of the 90-day period.
In expedited proceedings under F.S. §163.3184(3), if the ALJ recommends that the amendment be found in compliance, DEO must issue a final order within 45 days after issuance of the recommended order. If DEO fails to timely issue a final order, the recommended order finding the amendment to be in compliance immediately becomes the final order.
The act became effective on July 1, 2016. Chapter 2016-148, Laws of Florida.
• House Bill 5101 Exempts Certain Medicaid Hearings Conducted by AHCA from Parts of the APA — Relating to Health Care Services (H.B. 5101). A number of exceptions to the APA are listed in F.S. §§120.80 and 120.81. However, not all exceptions are so conveniently located. H.B. 5101 creates a new one of these exceptions that is not codified in the APA.
H.B. 5101 provides that appeals related to Medicaid programs administered by the Agency for Healthcare Administration (AHCA), including appeals related to Florida’s Statewide Medicaid Managed Care program and associated federal waivers, filed on or after March 1, 2017, must be directed to AHCA in the manner and form prescribed by the agency. The hearing authority for appeals heard by AHCA may be the secretary of AHCA, a panel of agency officials, or a hearing officer appointed for that purpose. The hearing authority is responsible for a final administrative decision, and the decision is binding on the agency. Here’s the new exception to the APA: The bill provides that, notwithstanding §§120.569 and 120.57, Medicaid hearings conducted by AHCA are 1) subject to federal regulations or requirements relating to Medicaid appeals; 2) exempt from the Uniform Rules of Procedure in §120.54(5); and 3) not required to be conducted by an ALJ assigned by DOAH.
The act became effective on July 1, 2016. Ch. 2016-65, Laws of Fla.
Bills That Did Not Pass
• No Sunset Review of Agency Rulemaking Authority — Relating to Legislative Reauthorization of Agency Rulemaking Authority (H.B. 953 and S.B. 1150).This proposed legislation would have created a four-year sunset review process for agencies’ rulemaking authority.32 The bill was designed to give the legislature the ability to review all grants of rulemaking authority currently in effect and any grants of rulemaking authority in the future. If a grant of rulemaking authority was not reauthorized by the legislature, such authority would be suspended. During the suspension of rulemaking authority, any rules lawfully adopted would remain in effect. Additionally, proposed rules could be adopted during the suspension of rulemaking authority, but they would not become effective until ratified by the legislature. The bill would have also allowed the governor to issue a declaration of public necessity to delay any suspension of rulemaking authority for 90 days to allow the legislature to convene and reauthorize necessary rulemaking.
• CON Review Still Required — Relating to Certificates of Need for Hospitals (H.B. 437). Once again, legislation was filed to repeal the certificate of need (CON) review requirements. H.B. 437 would have deleted the CON review requirements for hospitals and hospital services. The bill also would have removed the CON review requirement for increasing the number of comprehensive rehabilitation beds in a facility that offers comprehensive inpatient rehabilitative services.
• Special Transit/Transportation Districts Not Made Subject to APA — Relating to Special Districts (H.B. 745 and S.B. 516). Special districts and local governments are not generally subject to the APA, unless expressly made subject to it by general or special law.33 S.B. 516 would have made an independent special district that regulates transit or transportation services (including the Hillsborough County Public Transportation Commission) subject to the APA.34
• County Decisions to Use Tourist Development Tax Not Made Subject to APA
Relating to Taxation (H.B. 7099).H.B. 7099 (mentioned above) changes the purposes for which certain counties may use revenues from the tourist development tax (TDT) to include the reimbursement of expenses incurred in providing public safety services, including emergency medical services and law enforcement services relating to increased tourism and visitors to an area. These changes were controversial, and apparently in an effort to appease opponents, the bill was amended to include a provision expressly authorizing administrative review of the county’s decision pursuant to §§120.569 and 120.57.35 Standing to request an administrative hearing would have been provided to any remitter of the TDT or any organization representing multiple remitters of the TDT. During the pendency of the administrative proceeding and any resulting appeal, tax revenues collected under this section could not be used to fund the challenged use or uses. The county’s interpretation of this provision would be afforded no deference, and the decision of the ALJ would constitute a final order, subject to judicial review. A prevailing remitter or remitter organization would be awarded reasonable costs of the action plus reasonable attorneys’ fees, including those on appeal. This provision was not included in the final version of the bill that passed.
• Rule Relating to Costs for Reproducing Medical Records Not Ratified — Relating to Ratification of Rules of the Board of Medicine (PCB RORS 16-02). The Board of Medicine has adopted amendments to Fla. Admin. Code R. 64B8-10.003, regarding costs of reproducing medical records. The rule sets out the maximum reasonable cost per page reproduced that a physician may ask of the party requesting the medical records.
The statement of estimated regulatory costs showed the rule would have a specific, adverse economic effect, or would increase regulatory costs, exceeding $1 million over the first five years the rule was in effect. Accordingly, the rule must be ratified by the legislature before it may go into effect.36 PCB RORS 16-02, a proposed committee bill, would have ratified the rule. The bill was not enacted. The rule was the subject of a legal challenge. The ALJ entered a final order rejecting the challenge,37 and that final order is the subject of a pending appeal.38 In this appeal, the appellants have asked the court to determine that the appeal is moot because the rule was not ratified by the legislature during the 2016 Regular Session — the next legislative session. As of this writing, the court has not ruled on that request.39
Conclusion
During the 2016 Regular Session, the legislature considered a number of measures affecting the APA and the practice of administrative law. Some of those bills that passed already have been the subject of litigation, and some of those bills no doubt will lead to even more litigation. Some of those bills that died likely will be considered again. Stay tuned.
1 Fla. Stat. Ch. 120.
2 See 2013 H.B. 1225 and S.B. 1696; 2014 H.B. 1355 and S.B. 1626; and 2015 H.B. 435 and S.B. 718.
3 Over the history of the APA, governors often have initially vetoed many of the significant changes to the act. Most of these changes eventually became law — usually shortly thereafter. See H. French Brown & Larry Sellers, 2015 Amendments to the APA: Agency Regulatory Plans, Indexing — and Another Veto, 37 Administrative Law Section Newsletter 1 (Sept. 2015).
4 Current law provides that a party’s substantial interests cannot be determined based on an unadopted rule unless the agency can show recent legislation has directed the agency to create a rule and the agency has not had ample time to complete the rulemaking process in good faith. House Bill 183 adds the requirement that the agency prove rulemaking is neither feasible nor practicable.
5 Note, the determination that a rule was found to be invalid as part of a §120.57 hearing apparently will be limited to the particular case. It does not appear that the determination would result in the rule being declared void for all purposes, as would be the case following such a determination in a §120.56 proceeding.
6 For an example of a case in which this new defense has been applied, see Department of Financial Services, Division of Workers Compensation v. Soler and Son Roofing, DOAH Case No. 15-7356 (recommended order entered July 19, 2016) (determining that rule 69L-6.028(2) contravenes §440.107(7)(d)1, within the meaning of §120.52(8)(c), and thus is an invalid exercise of delegated legislative authority, so that the agency may not rely on this rule in this case).
7 H.B. 435 (2015).
8 Under §120.57, the agency would have retained final order authority over the remaining conclusions of law.
9 See veto letter dated June 16, 2015.
10 As amended by H.B. 183, §120.57(1)(e)4’s award of reasonable attorneys’ fees and costs only applies to a court’s rejection of the agency’s determination regarding an unadopted rule.
11 Fla. Stat. §120.54(7)(d).
12 Similar opportunities for expedited summary hearings without every party’s consent are already available for certain limited projects, including biomedical research institutions and interstate natural gas pipelines.
13 See C.S./C.S./C.S./H.B. 435, §5 (first engrossed) (2015) (amending Fla. Stat. §120.68).
14 Id.
15 See Katherine E. Giddings & Michael J. Larson, The Right to Relief: Untimely Notice of an Appealable Order, 89 Fla. B. J. 9 (Nov. 2015).
16 Id.
17 Id.
18 Id.
19 Fla. Const. art. V. §2(a) (“The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review….”); City of Jacksonville Beach v. PERC, 359 So. 2d 578, 579 (Fla. 1st DCA 1978) (“[A]ny legislative attempt to create rules of practice or procedure would be an intrusion upon the power of the Florida Supreme Court as defined in [art.] V, §2(a), Florida Constitution, and, thus, in violation of the doctrine of separation of powers as set forth in [art.] II, §3, of that [c]onstitution.”); Adhin v. First Horizon Home Loans, 44 So. 3d 1245, 1250 (Fla. 5th DCA 2010) (“[Art.] V, §2(a) of the Florida Constitution gives the Florida Supreme Court the exclusive authority to ‘adopt rules for the practice and procedure in all courts.’”).
20 See Boelter, 39 So. 3d at 1284 (holding lack of timely notice of ruling due to trial court’s mistake is grounds for relief from judgment under Rule 1.540(b)); Gibson v. Buice, 381 So. 2d 351 (Fla. 5th DCA 1980) (reversing and remanding for trial court to provide relief under Rule 1.540(b) to allow appellant timely appeal); Snelson v. Snelson, 440 So. 2d 477, 447 (Fla. 5th DCA 1983) (dismissing appeal and finding trial court may vacate order under Rule 1.540(b) and enter new order to allow timely appeal); Blastock v. Blastock, 776 So. 2d 359, 360-61 (Fla. 1st DCA 2001) (dismissing appeal without prejudice for party to obtain relief under Rule 1.540(b)).
21 See W.T. Holding, Inc. v. State Agency for Health Care Admin., 682 So. 2d 1224 (Fla. 4th DCA 1996); Fernandez, 159 So. 3d at 389; Adams v. Fla. Unemp. Appeals Comm’n, 16 So. 3d 272 (Fla. 1st DCA 2009); Reyes v. Fla. Unemp. Appeals Comm’n, 12 So. 3d 1292 (Fla. 1st DCA 2009); see also Taylor v. Dep’t of Prof’l Regulation, 520 So. 2d 557, 560 (Fla. 1988) (agency has inherent authority to correct “clerical errors and errors arising from mistake or inadvertence in its own orders”); see also Millinger v. Broward County Mental Health Division & Risk Management, 672 So. 2d 24, 27 (Fla. 1996) (finding “egregious” circumstances precluding a timely appeal could exist that merit remedy by an agency). Section 403.973(14)(b); deepwater ports in §373.4271; and everglades pollution control projects in §403.088(2)(g).
22 See Larry Sellers, 2010 Amendments to the APA: Legislature Overrides Veto to Require Legislative Ratification of “Million Dollar Rules,” 85 Fla. B. J. 5 (May 2011).
23 Petitions may be viewed at Florida Health, Resources, http://www.floridahealth.gov/programs-and-services/office-of-compassionate-use/resources/index.html.
24 This has been dubbed the “San Felasco provision” because it was presumed to benefit a particular applicant. See San Felasco Nurseries, Inc. v Dept’s of Health, et al., DOAH Case No. 15-7268 (Order Granting Dismissal of Parties and Amendment of Remaining Petition, May 2, 2016).
25 For a thoughtful discussion of this new two-part test, see McCrory’s Sunny Hill Nursery, LLC v. Dep’t of Health, DOAH Case No. 16-1934 (Recommended Order of Dismissal entered June 3, 2016).
26 Banks v. Dep’t of Health, DOAH Case No. 15-7267 (Recommended Order Feb. 26, 2016). In its final order, DOH concluded that its initial determination that banks failed the background screening should be “invalidated and voided” because he was not subject to the background screening requirement (Final Order, May 2, 2016).
27 See San Felasco Nurseries, Inc. v. Dep’t of Health, et al., DOAH Case No. 15-7268 (Order Granting Dismissal of Parties and Amendment of Remaining Petition, May 2, 2016).
28 See Florida Bee Distrib., Inc. v. Dep’t of Bus. & Prof’l. Regulation, Final Order, DOAH Case No. 15-6108RU & 15-6148RU (Mar. 3, 2016).
29 DOAH Case No. 14-3496 (Fla. DOAH Feb. 24, 2015), Rec. Order at 20.
30 DOAH Case No. 14-3496 (Final Order, June 11, 2015).
31 Brandy’s Prods., Inc., 41 Fla. L. Weekly D849, n. 4 (comparing H.B. 7099, §14 (2016) (second engrossed), with H.B. 7099 (2016) (enrolled)).
32 The legislation did not apply to emergency rulemaking under §120.54(4) or rulemaking “necessary to maintain the financial or legal integrity of any financial obligation of the state or its agencies or political subdivisions.”
33 Fla. Stat. §120.52(1)(c).
34 The Hillsborough County Transportation Commission was created by special act, Ch. 2001-299, Laws of Fla. That special act authorizes the commission to adopt rules in conformance with the APA.
35 See H.B. 7099, §1 (second engrossed).
36 See Fla. Stat. §120.541(3). For a discussion of this ratification requirement, see Eric H. Miller & Donald J. Rubottom, Legislative Rule Ratification: Lessons from the First Four Years, 89 Fla. B. J. 36 (Feb. 2015).
37 Fernandez, et al. v. Dep’t of Health, Board of Medicine, DOAH Case No. 15-1774RP (final order entered Dec. 8, 2015).
38 Fernandez, et al. v. Dep’t of Health, Board of Medicine, Case No. 1D16-0050.
39 On May 31, 2016, the court referred the request to the panel of judges determining the merits of the appeal.
H. French Brown IV is an attorney with Hopping Green & Sams, P.A., in Tallahassee.
Larry Sellers is a partner with Holland & Knight, LLP, practicing in the firm’s Tallahassee office.
This column is submitted on behalf of the Administrative Law Section, Jowanna Nicole Oates, chair, and Stephen Emmanuel, editor.
