05-003532RU Henry Davis vs. Department Of Children And Family Services Status: Closed DOAH Final Order on Wednesday, February 1, 2006.

Summary: Respondent`s rescission of the statement being challenged in a Section 120.56(4), Florida Statutes, proceeding rendered the challenge moot and warranted its dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY DAVIS, )

)

Petitioner, )

)

and )

)

FLORIDA PUBLIC EMPLOYEES )

COUNCIL 79, AFSCME, AFL - CIO, )

)

Intervenor, )

)

v s. ) Case No. 05 - 3532 RU

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

__________________________________)

FINAL ORDER OF DISMISSAL

The instant case involves a challenge to the following

statement, which is contained in Respondent’s Operating

Procedure No. 60 - 02, paragraph 1 - 10.b.(4): " In no case shall a

Career Service employee who has been terminated for cause, or

has resigned in lieu of termination or while the subject of an

investigation be employed o r re - employed by the Department"

(Challenged Statement).

On December 2, 2005, the undersigned issued an Order

Placing Case in Abeyance and Requiring Status Report, which

provided, in pertinent part, as follows:

It appearing that Respondent is acting

expeditiously and in good faith to adopt a

rule that addresses the statement (contained

in Respondent’ s Operating Procedure No. 60 -

02) that is the subject of the instant

controversy, this matter is hereby placed in

abeyance pending the outcome of the

rulemaking process, as suggested by

Respondent.

No later than 30 days from the date of this

Order, Respondent shall advise the

undersigned in writing of the status of the

rulemaking process. If it appears from

Respondent’s status report t hat Respondent

is not acting expeditiously and in good

faith, or if Respondent fails to timely file

the required status report, the final

hearing in this case [which had originally

been scheduled for October 21, 2005] will be

rescheduled without delay.

On December 29, 2005, Respondent filed a Notice to Court,

in which it advi sed, among other things, that it had

"voluntarily taken" the following action: " Strikin g from

[Respondent’s Operating Procedure] 60 - 02, dated January 5, 2004,

paragraph 1 - 10.b.(4), in its entirety. " On January 3, 2006, the

undersigned issued an Order Directing Response, requiring the

parties to advise hi m in writing, within ten days, " as to what

action, if any , they suggest [ed] the undersigned should take in

light of the events recite d in Respondent’s Notice to Court."

On January 12, 2006, Petitioner and Intervenor filed their

Response to the January 3, 2006, Order Directing Response,

s uggesting that the undersigned " should continue jurisdiction of

this case, and declare the challeng ed statement a violation of

Section 12 0.54(1)(a), Florida Statutes," as well as award

“reasonable costs and attorney fees to the Petition er and his

attorney pursuant to Section 120.595(4), Florida Statutes. "

Respondent requested, and was granted, an exten sion of time

until January 23, 2006, to file its response. On January 23,

2006, Respondent filed its Respons e to Order Directing Response,

" urg[ing] denial of the petition [filed by Petitioner], or

alternatively, dism issal on the petition, as moot." Appe nded to

Respondent’s Response was a December 23, 2005, memorandum from

Respondent ’s Secretary, addressed to the " Central Office

Leadership Team, Regional Director[s], District Administrators,

[and] Hospital Administrators,” which read as follows:

This memo randum clarifies the department’s

policy relative to employment. Effective

immediately, Section 1 - 10.b.(4), Children

and Families Operating Procedure (CFOP) NO.

60 - 02, Chapter 1, Recruitment, Assessment

and Selection, is revised to read:

" (4) Approval t o hire an applicant must be

obtained in writing from the District

Administrator, Regional Director, or

Hospital Administrator for their respective

positions, and the Deputy Secretary for

Headquarters positions, if the hiring

authority recommends employment of an

applicant described below:

a) a permanent Career Service employee who

was dismissed by the department or

another state agency for cause;

b) other employees dismissed by the

department or another state agency;

c) any employee who has resigned from the

depart ment or another state agency in

lieu of dismissal, or;

d) any employee who has resigned from the

department or another state agency while

the subject of an investigation. "

The Office of Human Resources is currently

updating and revising CFOP NO. 60 - 02,

Chapt er 1, Recruitment, Assessment and

Selection, which will incorporate the above

provision. In addition, CFOP NO. 60 - 08,

Chapter 8, Employee Separations and

Reference Checks is currently being updated

to incorporate a revised Notice of

Separation form that m ust be completed for

all employees separating from the

department.

A telephone conference c all was held on January 27, 2006 ,

during which the parties were given the opportunity to present

further argument in support of their respective positions on how

th e undersigned should proceed in the instant case.

On that same day (January 27, 2006 ), following the

telephone conference call, Respondent filed a Supplemental

Notice to the Court, in which it stated the following:

( 1) Respondent does not intend to rely u pon

the s tatement appearing in CFOP 62 - 02 ,

Cha pter 1, Recruitment, Assessment and

Selection, paragraph 1 - 10.b.4., bearing an

effective date January 5, 2004, as the basis

of future agency action.

( 2) The s tatement set forth in CFOP 62 - 02 ,

Cha pter 1, Recru itment, Assessment and

Selection, paragraph 1 - 10.b.4., bearing the

effective date January 5, 2004, is abandoned

in terms of the basis of future agency

action.

( 3) By way of further clarification, the

"statement" that is the subject of this

suppleme ntal n otice reads as follows:

"( 4) In no case shall a Career Service

employee who has been terminated for cause,

or has resigned in lieu of termination or

while the subject of an investigation be

employed or re - employed by the Department

[of Children and Fam ily Services]."

For the reasons that follow , the undersigned agrees with

Respondent that , in light of Respondent's voluntary

"abandon[ment]" of its further reliance on the Challenged

Statement, dismissal of Petitioner's petition is in order.

In his petit ion ( the filing of which initiated this

action ) , Petitioner contends that the Challenged Statement

constitutes a "rule," within the meaning of Section 120.52(15),

Florida Statutes, which provides as follows"

"Rule" means each agency statement of

general ap plicability 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.

The term also includes the amendment or

repeal of a rule. The term does not

include:

(a) Internal management memoranda which do

not affect either the private interests of

any person or any plan or procedure

important to the public an d which have no

application outside the agency issuing the

memorandum.

(b) Legal memoranda or opinions issued to

an agency by the Attorney General or agency

legal opinions prior to their use in

connection with an agency action.

(c) The preparation or modification of:

1. Agency budgets.

2. Statements, memoranda, or instructions

to state agencies issued by the Chief

Financial Officer or Comptroller as chief

fiscal officer of the state and relating or

pertaining to claims for payment submitted

by sta te agencies to the Chief Financial

Officer or Comptroller.

3. Contractual provisions reached as a

result of collective bargaining.

4. Memoranda issued by the Executive Office

of the Governor relating to information

resources management.

Not every agen cy statement is a "rule ," as defined by Section

120.52(15). Only agency "statements of general applicability,

i.e., those statements which are intended by their own effect to

create rights, or to require compliance, or otherwise to have

the direct and con sistent effect of law," fall within this

definition . Department of Highway Safety and Motor Vehicles v.

Schluter , 705 So. 2d 81, 82 (Fla. 1st DCA 1997); and McDonald v.

Department of Banking and Finance , 346 So. 2d 569, 581 (Fla. 1st

DCA 1977).

Petition er further contends in his petition that the

Challenged Statement was not, but should have been, adopted in

accordance with the rulemaking procedures set forth in Section

120.54(1)(a), Florida Statutes, which provides as follows:

Rulemaking is not a matter of agency

discretion. Each agency statement defined

as a rule by s. 120.52 shall be adopted by

the rulemaking procedure provided by this

section as soon as feasible and practicable.

1. Rulemaking shall be presumed feasible

unless the agency proves that :

a. The agency has not had sufficient time

to acquire the knowledge and experience

reasonably necessary to address a statement

by rulemaking;

b. Related matters are not sufficiently

resolved to enable the agency to address a

statement by rulemaking; o r

c. The agency is currently using the

rulemaking procedure expeditiously and in

good faith to adopt rules which address the

statement.

2. Rulemaking shall be presumed practicable

to the extent necessary to provide fair

notice to affected persons of re levant

agency procedures and applicable principles,

criteria, or standards for agency decisions

unless the agency proves that:

a. Detail or precision in the establishment

of principles, criteria, or standards for

agency decisions is not reasonable under the

circumstances; or

b. The particular questions addressed are

of such a narrow scope that more specific

resolution of the matter is impractical

outside of an adjudication to determine the

substantial interests of a party based on

individual circumstanc es.

"Section 120.54(1)(a) expresses the Legislature's intent that

agencies adopt a statement that is the equivalent of a rule as a

rule through the rulemaking process whenever possible." Osceola

Fish Farmers Association, Inc. v. Division of Administrativ e

Hearings , 830 So. 2d 932, 934 (Fla. 4th DCA 2002).

Petitioner is seeking relief from this alleged violation of

Section 120.54(1)(a), Florida Statutes, pursuant to Section

120.56(4), Florida Statutes, which is entitled, "CHALLENGING

AGENCY STATEMENTS DEFI NED AS RULES; SPECIAL PROVISIONS," and

provides as follows:

(a) Any person substantially affected by an

agency statement may seek an administrative

determination that the statement violates s.

120.54(1)(a). The petition shall include

the text of the stat ement or a description

of the statement and shall state with

particularity facts sufficient to show that

the statement constitutes a rule under s.

120.52 and that the agency has not adopted

the statement by the rulemaking procedure

provided by s. 120.54.

(b) The administrative law judge may extend

the hearing date beyond 30 days after

assignment of the case for good cause. If a

hearing is held and the petitioner proves

the allegations of the petition, the agency

shall have the burden of proving that

rule making is not feasible and practicable

under s. 120.54(1)(a).

(c) The administrative law judge may

determine whether all or part of a statement

violates s. 120.54(1)(a). The decision of

the administrative law judge shall

constitute a final order. The d ivision

shall transmit a copy of the final order to

the Department of State and the committee.

The Department of State shall publish notice

of the final order in the first available

issue of the Florida Administrative Weekly.

(d) When an administrative law judge enters

a final order that all or part of an agency

statement violates s. 120.54(1)(a), the

agency shall immediately discontinue all

reliance upon the statement or any

substantially similar statement as a basis

for agency action.

(e)1. If, prior to a final hearing to

determine whether all or part of any agency

statement violates s. 120.54(1)(a), an

agency publishes, pursuant to s.

120.54(3)(a), proposed rules that address

the statement, then for purposes of this

section, a presumption is created that the

agency is acting expeditiously and in good

faith to adopt rules that address the

statement, and the agency shall be permitted

to rely upon the statement or a

substantially similar statement as a basis

for agency action if the statement meets the

r equirements of s. 120.57(1)(e).[ 1 ]

2. If, prior to the final hearing to

determine whether all or part of an agency

statement violates s. 120.54(1)(a), an

agency publishes a notice of rule

development which addresses the statement

pursuant to s. 120.54(2) , or certifies that

such a notice has been transmitted to the

Florida Administrative Weekly for

publication, then such publication shall

constitute good cause for the granting of a

stay of the proceedings and a continuance of

the final hearing for 30 days. If the

agency publishes proposed rules within this

30 - day period or any extension of that

period granted by an administrative law

judge upon showing of good cause, then the

administrative law judge shall place the

case in abeyance pending the outcome of

rulemaking and any proceedings involving

challenges to proposed rules pursuant to

subsection (2).

3. If, following the commencement of the

final hearing and prior to entry of a final

order that all or part of an agency

statement violates s. 120.54(1)(a), an

agency publishes, pursuant to s.

120.54(3)(a), proposed rules that address

the statement and proceeds expeditiously and

in good faith to adopt rules that address

the statement, the agency shall be permitted

to rely upon the statement or a

substantially similar statement as a basis

for agency action if the statement meets the

requirements of s. 120.57(1)(e).

4. If an agency fails to adopt rules that

address the statement within 180 days after

publishing proposed rules, for purposes of

this subsection, a presumption is created

that the agency is not acting expeditiously

and in good faith to adopt rules. If the

agency's proposed rules are challenged

pursuant to subsection (2), the 180 - day

period for adoption of rules is tolled until

a final order is ente red in that proceeding.

5. If the proposed rules addressing the

challenged statement are determined to be an

invalid exercise of delegated legislative

authority as defined in s. 120.52(8)(b) - (f),

the agency must immediately discontinue

reliance on the st atement and any

substantially similar statement until the

rules addressing the subject are properly

adopted.

(f) All proceedings to determine a

violation of s. 120.54(1)(a) shall be

brought pursuant to this subsection. A

proceeding pursuant to this subs ection may

be consolidated with a proceeding under any

other section of this chapter. Nothing in

this paragraph shall be construed to prevent

a party whose substantial interests have

been determined by an agency action from

bringing a proceeding pursuant to s.

120.57(1)(e).

"When section 120.54(1)(a) is read together with section

120.56(4), it becomes clear that the purpose of a section

120.56(4) proceeding is to force or require agencies [that

desire to continue to rely on agency statements defined as

ru les] into the rule adoption process. It provides [these

agencies] with incentives to promulgate [these statements as]

rules through the formal rulemaking process." Osceola Fish

Farmers Association, Inc. , 830 So. 2d at 934.

"An agency statement constitut ing a rule may be challenged

pursuant to Section 120.56(4), Florida Statutes, only on the

ground that 'the agency has not adopted the statement by the

rulemaking procedure provided by s. 120.54.' " Zimmerman v.

Department of Financial Services, Office of I nsurance

Regulation , DOAH Case No. 05 - 2091RU, slip op. at 11 (Fla. DOAH

August 24, 2005)(Summary Final Order of Dismissal ); s ee also

Southwest Florida Water Management District v. Charlotte County ,

774 So. 2d 903, 908 - 09 (Fla. 2d DCA 2001)("The basis for a

challenge to an agency statement under this section [Section

120.56(4), Florida Statutes] is that the agency statement

constitutes a rule as defined by section 120.52(15), Florida

Statutes (Supp. 1996), but that it has not been adopted by the

rule - making procedure mandated by section 120.54. In the

present case, the challenges to the existing and proposed agency

statement on the grounds that they represent an invalid

delegation of legislative authority are distinct from a section

120.56(4) challenge that the agency statements are functioning

as unpromulgated rules."); Florida Association of Medical

Equipment Services v. Agency for Health Care Administration ,

DOAH Case No. 02 - 1314RU, slip op. at 6 (Fla. DOAH October 25,

2002)(Order on Motions for Summary Fi nal Order)("[I]n a Section

120.56(4) proceeding which has not been consolidated with a

proceeding pursuant to Section 120.57(1)(e), the issue whether a

rule - by - definition is substantively invalid for reasons set

forth in Section 120.52(8)(b) - (g), Florida S tatutes, should not

be reached. That being so, the ultimate issues in this case are

whether the alleged agency statements are rules - by - definition

and, if so, whether their existence violates Section

120.54(1)(a)."); and Johnson v. Agency for Health Care

A dministration , DOAH Case No. 98 - 3419RU, 1999 Fla. Div. Adm.

Hear. LEXIS 5180 *15 (Fla. DOAH May 18, 1999)(Final Order of

Dismissal)("It is apparent from a reading of subsection (4) of

Section 120.56, Florida Statutes, that the only issue to be

decided by t he administrative law judge in a proceeding brought

under this subsection is 'whether all or part of [the agency]

statement [in question] violates s. 120.54(1)(a),' Florida

Statutes, . . . ."). The sole remedy available under Section

120.56(4) for such a violation is prospective injunctive relief.

See Zimmerman , slip op. at 11 (" The statute [Section 120.56(4),

Florida Statutes] is forward - looking in its approach. It is

designed to prevent future agency action based on statements not

adopted in accordance with required rulemaking procedures, not

to provide a remedy for final agency action (based on such

statements) that has already been taken. "). If a violation is

found , the agency must, pursuant to Section 120.56(4)(d),

" immediately discontinue all relia nce upon the statement or any

substantially similar statement as a basis for agency ac tion , "

and it must also, pursuant to Section 120.595(4), Florida

Statutes, 2 pay the challenger's reasonable costs and attorney's

fees , " unless the agency demonstrates tha t the statement is

required by the Federal Government to implement or retain a

delegated or approved program or to meet a condition to receipt

of federal funds. "

The agency statement that Petitioner is seeking to

challenge in the instant Section 120.56(4) proceeding is one

that Respondent has already "abandoned" and replaced (with a

substantially different policy statement). Because it has been

rescinded and thus will not be relied upon by Respondent as a

basis for future agency action , it is unnecessary t o adjudicate

Petitioner's claim that this s tatement violates Section

120.54(1)(a), Florida Statutes, and he thus is entitled to

prospective injunctive relief under Section 120.56(4). 3 There

being no reason for this case to remain open in light of

Responde nt's rescission of the Challenged Statement , 4

Petitioner's p etition must be, and hereby is, dismissed , and the

file of the Division of Administrative Hearings in this case is

closed . See Board of Public Instruction of Orange County v.

Budget Commission of Orange County , 249 So. 2d 6 (Fla. 1971)("We

have for review a judgment of the Circuit Court of Orange

County, wherein Chapter 63 - 878, Laws of Florida, was held

constitutional. On appeal here appellants have contended that

Chapter 63 - 878 is an invalid spe cial act. However, our

attention has been called to House Bill No. 932, enacted on

May 12, 1971, as Chapter 71 - 29, Laws of Florida, which repeals

Chapter 63 - 878, Laws of Florida. Accordingly, the controversy

over the validity of Chapter 63 - 878 has been r endered moot and

the appeal must be and is hereby dismissed."); Mullings v.

Barton , 620 So. 2d 258 (Fla. 1 st DCA 1993)("The letter attached

to appellee's motion to dismiss provides appellant with the

relief he requested, thereby rendering moot the appeal o f the

disorderly - conduct charge. We therefore dismiss appellant's

appeal of the summary denial of his petition for writ of habeas

corpus in which appellant challenged his charge of disorderly

conduct."); Fair v. Board of Elections, City of Tampa , 211 So.

2d 239 (Fla. 2d DCA 1968)("The question raised by appellant has

been rendered moot by virtue of the repeal of the contested

statute, Chapter 15533, Laws of Florida, Special Acts of 1931,

as amended by Chapter 67 - 2123, Laws of Florida, Special Acts of

1967. "); Federation of Advertising Industry Representatives,

Inc. v. City of Chicago , 326 F.3d 924, 929 - 30 (7th Cir.

2003)("Federation next argues that this case presents a live

controversy because, though the City has repealed the challenged

ordinance, the Cit y remains free to reenact it at any time. In

support of this argument, Federation cites the general principle

that a defendant's voluntarily cessation of challenged conduct

will not render a case moot because the defendant remains 'free

to return to his o ld ways.' We do not dispute that this

proposition is the appropriate standard for cases between

private parties, but this is not the view we have taken toward

acts of voluntary cessation by government officials. Rather,

'when the defendants are public of ficials . . . we place greater

stock in their acts of self - correction, so long as they appear

genuine.' To adopt Federation's view that mere repeal is

insufficient to moot a case would essentially put this court in

the position of presuming that the City has acted in bad faith --

harboring hidden motives to reenact the statute after we have

dismissed the case -- something we ordinarily do not presume.

Rather than presuming bad faith, we have repeatedly held that

the complete repeal of a challenged law renders a case moot,

unless there is evidence creating a reasonable expectation that

the City will reenact the ordinance or one substantially

similar. This rule does not, as Federation suggests, conflict

with Supreme Court precedent on the issue. In a string of

cases, the Court has upheld the general rule that repeal,

expiration, or significant amendment to challenged legislation

ends the ongoing controversy and renders moot a plaintiff's

request for injunctive relief.")(citations omitted); Cotton v.

Mansour , 86 3 F.2d 1241, 1244 - 1245 (6th Cir. 1988)("We agree with

the district court's conclusion that any request for prospective

injunctive relief was moot. MDSS had clearly changed its policy

of calculation months before plaintiff had filed suit and MDSS

had even personally informed plaintiff's counsel of this change

in MDSS policy. There was simply no ongoing violation by MDSS

to enjoin ."); Massachusetts Hospital Association v. Harris , 500

F. Supp. 1270, 1280 (D. Mass. 1980)("[T]his court lacks

jurisdiction to co nsider the plaintiff's allegations concerning

the inpatient rate methodology and reimbursement rates that are

no longer in effect."); Yuan Jen Cuk v. Lackner , 448 F. Supp. 4,

10 (D. Cal. 1977)("Since the eligibility requirements of §

14005.6(a)(3) have bee n repealed in their entirety, and no

comparable provisions enacted in their place, and since

plaintiffs would be entitled only to prospective injunctive

relief, we further conclude that this action should be dismissed

as moot."); and Simmons v. Inverness I nn , DOAH Case No. 93 - 2349,

1993 Fla. Div. Adm. Hear. LEXIS 5716 *5 (Fla. DOAH October 27,

1993)(Recommended Order)("As to the other relief available under

subsection 760.10(13), it is noted that the Inn is no longer in

business and thus the issue of whethe r a cease and desist order

should lie is rendered moot."). Inasmuch as no determination

has been (nor need be) made that the Challenged Statement

violates Section 120.54(1)(a), Petitioner is not entitled to

reasonable costs and attorney's fees pursuant to Section

120.595(4), Florida Statutes.

DONE AND ORDERED this 1st day of February, 2006 , in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of February, 2006 .

ENDNOTES

1 / Section 120.57(1)(e), Florida Statutes, provides as follows:

1. Any agency action that determines the

substantial interests of a party and that is

based on an unadopted rule is subject to de

novo review by an administrative law judge.

2. The agency action shall not be presumed

valid or invalid. The agency must

demonstrate that the unadopted rule:

a. Is within the powers, functions, a nd

duties delegated by the Legislature or, if

the agency is operating pursuant to

authority derived from the State

Constitution, is within that authority;

b. Does not enlarge, modify, or contravene

the specific provisions of law implemented;

c. Is not vague, establishes adequate

standards for agency decisions, or does not

vest unbridled discretion in the agency;

d. Is not arbitrary or capricious. A rule

is arbitrary if it is not supported by logic

or the necessary facts; a rule is capricious

if it is adopted without thought or reason

or is irrational;

e. Is not being applied to the

substantially affected party without due

notice; and

f. Does not impose excessive regulatory

costs on the regulated person, county, or

city.

3. The recommended and fi nal orders in any

proceeding shall be governed by the

provisions of paragraphs (k) and (l), except

that the administrative law judge's

determination regarding the unadopted rule

shall not be rejected by the agency unless

the agency first determines from a review of

the complete record, and states with

particularity in the order, that such

determination is clearly erroneous or does

not comply with essential requirements of

law. In any proceeding for review under s.

120.68, if the court finds that the agency 's

rejection of the determination regarding the

unadopted rule does not comport with the

provisions of this subparagraph, the agency

action shall be set aside and the court

shall award to the prevailing party the

reasonable costs and a reasonable attorney' s

fee for the initial proceeding and the

proceeding for review.

2 / Section 120.595(4), Florida Statutes, provides as follows:

CHALLENGES TO AGENCY ACTION PURSUANT TO

SECTION 120.56(4). --

(a) Upon entry of a final order that all or

part of an agency s tatement violates s.

120.54(1)(a), the administrative law judge

shall award reasonable costs and reasonable

attorney's fees to the petitioner, unless

the agency demonstrates that the statement

is required by the Federal Government to

implement or retain a delegated or approved

program or to meet a condition to receipt of

federal funds.

(b) Notwithstanding the provisions of

chapter 284, an award shall be paid from the

budget entity of the secretary, executive

director, or equivalent administrative

officer of the agency, and the agency shall

not be entitled to payment of an award or

reimbursement for payment of an award under

any provision of law.

3 / Contrary to the assertion made by Petitioner and Intervenor

in their Response to Order Directing Response, there is nothing

in Section 120.56(4)(e), Florida Statutes, suggesting that the

Legislature intended to foreclose the possibility that an agency

that no longer desired to rely on a statement under challenge in

a Section 120.56(4) proceeding could effectiv ely abort the

proceeding by voluntarily rescinding the statement. Section

120.56(4)(e) allows an agency that wants to continue to rely on

a challenged statement to do so under the circumstances

described therein. It does not purport to address the

situat ion, present in this case, where the agency desires to

discontinue its reliance on the statement.

4 / That Petitioner is also seeking an award of reasonable costs

and attorney's fees pursuant to Section 120.595(4), Florida

Statutes (which is attainable on ly if there is the " entry of a

final order that all or part of [the challenged] agency

statement violates s. 120.54(1)(a) ") is not such a reason. See

The Florida Electric Power Coordinating Group, Inc., v

Department of Environmental Protection , DOAH Case Nos. 01 - 4018,

01 - 4019, 01 - 4020, 01 - 4021, and 01 - 4257RU, 2002 Fla. ENV LEXIS

101 (Fla. DOAH April 22, 2002)(Final Order)(administrative law

judge rejected contention that an "award of attorney's fees

under Section 120.595(4) is a collateral legal consequenc e that

precludes dismissal of the underlying [Section 120.56(4)] action

for mootness "); see also Lewis v. Continental Bank Corp. , 494

U.S. 472, 480, 108 L. Ed. 2d 400, 110 S. Ct. 1249 (1990)("[An]

interest in attorney's fees is . . . insufficient to create an

Article III case or controversy where none exists on the m erits

of the underlying claim."); and Cox v. Phelps Dodge Corp. , 43

F.3d 1345, 1348 n.4 (10th Cir. 1994)("[A] n interest in

attorney's fees is insufficient to create an Article III case or

contro versy where a case or controversy does not exist on the

merit s of the underlying claim.").

COPIES FURNISHED:

Ben R. Patterson, Esquire

Patterson & Traynham

315 Beard Street

Post Office Box 4289

Tallahassee, Florida 32315 - 4 289

Herschel C. Minnis, Assistant General Counsel

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204 - N

Tallahassee, Florida 32399 - 0700

Scott Boyd, Executive Director

and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florid a 32399 - 1300

Liz Cloud, Program Administrator

Bureau of Administrative Code

Department of State

R. A. Gray Building , Suite 2 01

Tallahassee, Florida 32399

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order of

Dism issal is entitled to judicial review pursuant to Section

120.68, Florida Statutes. Review proceedings are governed by

the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original Notice of Appeal with the

agency clerk o f the Division of Administrative Hearings and a

copy, accompanied by filing fees prescribed by law, with the

District Court of Appeal, First District, or with the District

Court of Appeal in the Appellate District where the party

resides. The notice of ap peal must be filed within 30 days of

rendition of the order to be reviewed.