17-006655RU Dacco Behavorial Health, Inc.; Operation Par, Inc.; And Aspire Partners, Inc. vs. Department Of Children And Families Status: Closed DOAH Final Order on Thursday, April 26, 2018.

Summary: The Emergency Rule constitutes an invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DACCO BEHAVIORAL HEALTH, INC.;

OPERATION PAR, INC. ; and ASPIRE

HEAL T H PARTNERS, INC.,

Petitioners,

and

CR C HEALTH TREATMENT CLINICS,

LLC; RIVERWOOD GROUP, LLC;

SYMETRIA, LLC; CFSATC , d/b/a

CENTRAL FLORIDA SUBSTANCE

ABUSE ; and BAY COUNTY

HEALTHCARE SERVICES, LLC,

Intervenors,

v. Case No. 17 - 6655RU

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent ,

and

PALM BEACH DRUG TESTING, LLC,

d/b/a RELAX MENTAL HEALTH CARE;

COLONIAL MANAGEMENT GROUP,

L.P.; and METRO TREATMENT OF

FLORIDA, L.P. ; and

PSYCHOLOGICAL ADDICTION

SERVICES, LLC,

Intervenors.

___________________________/

FINAL ORDER

Pursuant to notice, a final hearing was conducted in this

case on April 9, 2018, in Tallahassee , Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings (ÐDOAHÑ) .

APPEARANCES

For Petitioners: Donna Elizabeth Blanton, Esquire

Brittany Adams Long, Esquire

Radey Law Firm, P.A.

Suite 20 0

301 South Bronough Street

Tallahassee, Florida 32301

J. Carter Anderson, Esquire

Bryan D. Hull, Esquire

Bush Ross, P.A.

Post Office Box 3913

Tampa, Florida 33601 - 3913

For Respondent: William D. Hall, Esquire

Daniel Ryan Russell, Esquire

Mark W. Dunbar, Esquire

Jones Walker, LLP

Suite 130

215 South Monroe Street

Tallahassee, Florida 32301

For Intervenor CRC Health Treatment Clinics, LLC:

R. Terry Rigsby, Esquire

Matthew Bryant, Esquire

P ennington, P.A.

215 South Monroe Street, Second Floor

Post Office Drawer 10095

Tallahassee, Florida 32302 - 2095

For Intervenor Riverwood Group, LLC:

David C. Ashburn, Esquire

Michael J. Ch erniga, Esquire

Greenberg Traurig, P.A.

101 E ast College Avenue

Post Office Drawer 1838

Tallahassee, Florida 32301

For Intervenor Symetria, LLC:

J. Stephen Menton, Esquire

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florid a 32301

For Intervenor CFSATC , d/b/a Central Florida Substance

Abuse:

Maureen McCarthy Daughton, Esquire

Maureen McCarthy Daughton, LLC

Suite 304

1725 Capital Circle Northeast

Tallahassee, Florida 32308

For Intervenor Bay County Health Services:

Kyle L. Kemper, Esquire

Steven T. Mindlin, Esquire

Sundstrom & Mindlin, LLP

2548 Blairstone Pines Drive

Tallahassee, Florida 32301

For Intervenor Palm Beach Drug Testing, LLC , d/b/a Relax

Mental Health Care:

James A. McKee, Esquire

Christopher M. Kise, Esquire

Joshua M. Hawkes, Esquire

Benjamin J. Grossman, Esquire

Foley & Lardner LLP

106 East College Avenue , Suite 900

Tallahassee, Florida 32301

For Intervenors Colonial Management Group, L.P. , and

Metro Tr eatment of Florida, L.P.:

Mia L. McKown, Esquire

Eddie Williams, III, Esquire

Holland & Knight LLP

Suite 600

315 South Calhoun Street

Tallahassee, Florida 32301

For Intervenor Psychological Addiction Services, LLC:

Williams E. Will iams, Esquire

George T. Levesque, Esquire

Timothy M. Cerio, Esquire

Gray Robinson, P.A.

Suite 600

301 South Bronough Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether Florida Admini strative

Cod e E mergency R ule 65DER17 - 2 (the Ð Emergency RuleÑ)

constitutes an invalid exercise of delegated legislative

authority as defined in section 120.52(8), Florida Statutes .

(Unless specifically stated otherwise herein, all references

to Florida Statutes will b e to the 2017 version.)

More specifically, on September 19, 2017, the Florida

Department of Children and Families (the ÐDepartmentÑ),

published the Emergency Rule, which dealt with the need for

and licensing of new methadone medication - assisted treatment

c enters for persons dealing with opioid addiction. Pursuant

to the Emergency Rule, the Department decided which providers

would receive approval notices to submit licensure

applications in certain counties based on the order in which

complete and responsiv e applications were received by the

Department. A number of parties are challenging the validity

of the Emergency Rule.

PRELIMINARY STATEMENT

The Department issued emergency rule 65DER17 - 1 on

August 25, 2017. Th at emergency r u le was amended on

Septembe r 19, 2017, to change filing dates ; the changes were

codified as 65DER17 - 2 , the Emergency Rule under consideration

in this proceeding . The Emergency Rule purports to establish

a method whereby intereste d persons could apply to open

methadone medica tion - as sisted treatment facilities .

Petitioners filed a challenge to the Emergency Rule on

December 1 1 , 2017, asserting the invalidity of the Emergency

Rule on several bases set forth in section 120.5 2(8) . In

accordance with section 120 .5 6(5), the final hearing in this

matter was scheduled on the date and place set forth above.

On April 6, 2017, just three days prior to the final

hearing in this matter, parties who had intervened in this

proceeding in support of the Department filed a motion to

dismiss the petit ions challenging the Emergency Rule Ó s

validity. The basis of the motion was that the Emer gency Rule

had already expired by the time Petitioners filed their

petitions challenging the rule. IntervenorsÓ rationale is

that the Emergency Rule is merely an ame ndment to the first

emergency rule, 65DER17 - 1, and does not extend the time of

the first rule. As published in the Florida Administrative

Register (ÐFARÑ), 65DER17 - 1 had an effective date of

August 25, 2017, and expired on November 23, 2017.

Petitioners did not file their challenges to the Emergency

Rule until December 11, 2017. The Emergency Rule, as

published in the FAR, conversely, had an effective d ate of

September 19, 2017. Pursuant to section 120.54(4), the

Emergency Rule was effective for 90 days , i.e., until

December 18, 2017. As the petitions challenging the Emergency

Rule were filed prior to that date, the motion to dismiss is

denied.

An ore tenus motion in limine was made at final hearing

by Intervenor, Psychological Addiction Services, LLC ( Ð PAS Ñ) .

In that motion , which is essentially a motion to dismiss for

lack of jurisdiction, PAS argues that the Legislature has

provided an exclusive judicial remedy for challenging the

underlying declaration of an emergency by an agency. Thus,

PAS conten ds , arguments as to whether there was a legitimate

emergency must be made directly to the District Court of

Appeal rather than to DOAH. PAS contends that all DOAH can do

under section 120.56(5) is to determine the substantive

validity of the proposed rule . However, no evidence was

adduced at final hearing that any party claim ed an emergency

existed. The motion in limine is denied. See also

Administrative Law Judge ChisenhallÓs scholarly review of this

issue in Florida Association of Homes and Services f or the

Ag ing, Inc ., d/b/a LeadingA ge Florida v. Agency for Health

Care Administration and Department of Elder Affairs , Case

No. 17 - 5388 RP (Fla. DOAH Oct. 27, 2017).

At the final hearing, Petitioner s called three witnesses:

Diane Clarke, CEO of Operat ion Par, Inc . (ÐOPIÑ); Jonathan

Essenburg, OPIÓs vice president for medication - assisted and

HIV services; and Ute Gazioch, Director of Substance Abuse and

Mental Health for the Department. CRC Health Treatment

Clinics, LLC (ÐCRCÑ) , called one witness: An thony Ruscella,

vice president of business development for Acadia Health care ,

parent company of CRC. Symetria, LLC (ÐSymetriaÑ) , called one

witness: Paul Cassidy, director of New Clinic D evelopment.

No other parties herein called witnesses at the final hearing.

The following exhibits were admitted pursuant to stipulation

by the parties: Joint Exhibits 1 through 7; Department

Exhibits 1 through 8; Petitioners Exhibits 1 through 24;

PAS Exhibit 1; Symetria Exhibits 1 through 4; CFSATC Exhibits

2 through 4; Bay County Healthcare Services, LLC , Exhibits 1

through 3; and CRC Exhibit 1.

A n expedited t ranscript of the final hearing was ordered ,

with an anticipated filing date of April 12 or 13, 2018 . The

parties were given seven days from the date the trans cript was

filed at DOAH to submit p roposed f inal o rders (P F Os); the

parties request ed entry of the final o rder on or before

April 26, 2018 , due to the significant impact the final o rder

might have on the parties, as well as the fact that the

undersigned wo uld not be able to address the matter after that

date (until May 14, 2018). The T ranscript was not filed ,

however, until April 16, 2018 . The parties filed their P F O s

on April 23, 2018 , leaving two business days to complete and

issue the final o rder. Non etheless, e ach of the PFOs was

considered in the preparation of this Final Order.

FINDINGS OF FACT

Parties and Standing

1 . Respondent , the Department , is the state agency

responsible for licensing providers of care in methadone

medication - assisted trea tment facilities. It is the agency,

which promulgated the Emergency Rule.

2 . Petitioner, Dacco Behavioral Health, Inc. (ÐDaccoÑ) ,

is a not - for - profit corporation and is currently licensed to

operate methadone medication - assisted treatment clinics within

the s tate of Florida. Dacco submitted three applications for

licensure under the Emergency R ule. Its applications were

not approved by the Department. Dacco timely filed an

administrative challenge to its denied applications. Dacco

has standing in thi s proceeding.

3 . Petitioner, OPI , is a not - for - profit corporation and

is currently licensed to operate methadone medication - assisted

treatment clinics within the state of Florida. OPI submitted

six applications for licensure under the Emergency Rule. None

of its applications were approved by the Department. OPI

timely filed an administrative challenge to its denied

applications. OPI has standing in this proceeding.

4 . Petitioner, Aspire Health Partners, Inc. (ÐAspireÑ) ,

is a not - for - profit corporat ion and is currently licensed to

operate methadone medication - assisted treatment clinics within

the state of Florida. Aspire submitted two applications

for licensure under the Emergency Rule. N either of its

applications w as approved by the Department. A spire timely

filed an administrative challenge to its denied applications.

Aspire has standing in this proceeding.

5 . Intervenor, CRC, is a Del a ware limited liability

company registered to do business in Florida. CRC is

currently licensed to operate a methadone medication - assisted

treatment clinic in Florida. CRC submitted 16 applications

for licensure under the Emergency Rule. Its applications were

not approved by the Department. CRC timely filed an

administrative challen ge to its denied application s. CRC has

standing to intervene in this proceeding.

6 . Intervenor, Riverwood Group, LLC (ÐRiverwoodÑ) , is a

Del a ware limited liability company authorized to do business

in Florida. Riverwood is currently licensed to operate

methadone medication - assist ed treatment clinics within the

state of Florida. Riverwood submitted six applications for

licensure under the Emergency Rule. Its applications were not

approved by the Department. Riverwood timely filed an

administrative challenge to its denied applica tions.

Riverwood has standing to intervene in this proceeding.

7 . Intervenor, Symetria , is a Florida limited liability

company whose parent company is currently licensed to operate

methadone medication - assisted treatment clinics within the

state of Flor ida. Symetria submitted 11 applications for

licensure under the Emergency Rule. One of its applications

was approved; the other 10 were not approved by the

Department. Symetria did not file an administrative challenge

to the denial of its applications . Opposition to SymetriaÓs

standing was raised by Intervenors appearing in support of

Respondent. Symetria was allowed to participate at final

hearing pending adequate proof of standing. Symetria did not

prove its standing at final hearing. Symetria does not have

standing in this proceeding on behalf of Petitioners as it

does not satisfy the two - prong test announced in Agrico

Chemical Company v. Department of Environmental Regulation ,

406 So. 2d 478 (Fla. 1st DCA 1978) . (After entry of this

Final Order, Symetria will be stricken from the style of the

case.) It should be noted that Symetria apparently never

received notice as to its denied applications and may have

challenged those denials , if notices had been issued, but that

possibility is too speculati ve to award standing in this

matter. It should also be noted that none of the parties

hereto objected to SymetriaÓs involvement in the final

hearing, including its introduction of evid ence and

examination of witnesses.

8 . Intervenor, CFSATC , d/b/a Cent ral Fl orida Substance

Abuse (ÐCFSATCÑ) , is a Florida corporation and is currently

licensed to operate methadone medication - assisted treatment

clinics within the state of Florida. CFSATC submitted seven

applications for licensure under the Emergency Rule. N one of

its applications w ere approved by the Department. CFSATC

timely filed an administrative challen ge to its denied

applications. CFSATC has standing to intervene in this

proceeding.

9 . Intervenor, Bay County Healthcare Services, LLC ( Ð Bay

County HealthcareÑ) , is a Georgia limited liability company

and is currently licensed to operate a methadone medication -

assisted treatment clinic in Florida. Bay County Healthcare

submitted eight applications fo r licensure under the

Emergency Rule. N one of its applications w ere approved by the

Department. Bay County Healthcare timely filed an

administrative challenge to its denied applications . Bay

County Healthcare has standing to intervene in this

proceeding.

10 . Intervenor, Palm Beach Dru g T esting, LLC , d/b/a

Relax Mental Health Care (ÐRelaxÑ) , submitted 14 applications

for licensure under the Emergency Rule; eight of its

applications were approved. Invalidation of the Emergency

Rule would substantially affect the business interests of

Relax. Relax has standing to intervene in th is proceeding.

11 . Intervenor, Colonial Management Group, L.P.

(ÐColonialÑ) , operates methadone medication - assisted treatment

centers nationwide, including Florida. Colonial submitted

1 9 applications for licensure under the Em ergency Rule; all

19 of its applications were approved. Invalidation of the

Emergency Rule would substantially affect the business

interests of Colonial. Colonial has standing to intervene in

this proceeding.

12 . Intervenor, PAS , submitted 48 applicati ons for

licens ure under the Emergency Rule; twenty of its applications

were approved. Invalidation of the Emergency Rule would

substantially affect the business interests of PAS. PAS has

standing to intervene in this proceeding.

Procedural History

13. On May 3, 2017, Governor Scott signed E xecutive

O rder No. 17 - 146, alluding to the nearly 4,000 deaths in

Florida caused by opioids during calendar year 2015. Florida

had near ly 10 percent of all opioid - related deaths in the

entire country that year. Th e Governor declared that an

opioid epidemic threatens the State and has created an

emergency situation . He directed the State Health Officer and

Surgeon General to announce a statewide public health

emergency. The GovernorÓs executive order not ed that th e

United States Department of Health and Human Services had

awarded a grant of $ 27,150,403 per year for two years to the

Department to provide prevention, treatment, and recovery

support services to address the opioid epidemic . The Governor

said it was ne cessary to immediately draw down those federal

grant funds in order to provide services to Florida

communities , and that the State could not wait until the next

fiscal year (which would start two months hence, on July 1,

2017) to begin that distribution .

14 . On June 29, 2017, the Governor signed Executive

Order No. 17 - 177, extending for an additional 60 days the

state of emergency declarati on set forth in Executive

Order 17 - 146. This action was precipitated by hurricanes

threatening the State.

15 . The executive orders issued by the Governor appear

to direct State agencies to utilize the federal grant monies

to bolster existing providers of treatment . Nothing in the

executive orders issued by the Governor directs the approval

of additional opioid treatm ent centers. There is , however, a n

omnibus provision in the executive order directing the State

Health Officer to Ðtake any action necessary to protect the

public health.Ñ

16 . The DepartmentÓs response to the executive orders

was to publish e mergency r ule 65DER17 - 1 in the FAR on

August 25, 2017. That rule was superseded by the Emergency

Rule, which revised the dates during which applications for

licensure could be submitted. This change was deemed

necessary in response to the devastation wrought by Hu rricane

Irma, making travel to Tallahassee (for delivery of

applications) somewhat difficult during the time frames set

forth in emergency rule 65DER17 - 1 .

17 . The N otice of E mergency R ule , as published in the

Florida Administrative Register, states in ful l (with

strikethrough/underline in original) :

Notice of Emergency Rule

DEPARTMENT OF CHILDREN AND FAMILIES

Substance Abuse Program

RULE NO.: RULE TITLE: 65DER17 - 2 Standards

for Medication - Assisted Treatment for Opioid

Addiction

SPECIFIC REASONS FOR FINDING AN IMMEDIATE

DANGER TO THE PUBLIC HEALTH, SAFETY OR

WELFARE: On May 3, 2017, the Governor of

the State of Florida signed Executive Order

Number 17 - 146 declaring that the opioid

epidemic threatens the State with an

emergency and that, as a consequ ence of this

danger, a state of emergency exists. Also,

in the executive order, the Governor

directed the State Health Officer and

Surgeon General to declare a statewide

public health emergency, pursuant to its

authority in section 381.00315, F.S. On

Jun e 29, 2017, the Governor signed Executive

Order Number 17 - 177 to extend the state of

emergency declaration.

The department was recently awarded a

two - year grant to address this opioid

epidemic. The department will use these

funds in part to expand met hadone

medication - assisted treatment services in

needed areas of the state as part of a

comprehensive plan to address the opioid

crisis. Revising the licensure requirements

through an emergency rule is necessary to

accommodate the critical need for more

m ethadone medication - assisted treatment

providers. Due to the impact of Hurricane

Irma on providers and individuals in

treatment, the department has determined

that extending the submission dates for

applicants is necessary.

REASON FOR CONCLUDING THAT TH E PROCEDURE IS

FAIR UNDER THE CIRCUMSTANCES: The procedure

is fair under the circumstances because it

ensures equitable treatment of methadone

medication - assisted treatment providers.

SUMMARY: This rule makes changes to

permanent Rule 65D - 30.014 F.A.C., relating

to licensure requirements for methadone

medication - assisted treatment programs.

THE PERSON TO BE CONTACTED REGARDING THE

EMERGENCY RULE IS: Bill Hardin. He can be

reached at [e-mail]

or Office of Substance Abuse and Ment al

Health, 1317 Winewood Boulevard, Building 6,

Tallahassee, Florida 32399 - 0700.

THE FULL TEXT OF THE EMERGENCY RULE IS:

65DER17 - 2 (65D - 30.014): Standards for

Medication - Assisted Treatment for Opioid

Addiction. 65DER17 - 2 supersedes 65DER17 - 1 .

In additi on to Rule 65D - 30.004, F.A.C., the

following standards apply to Standards for

Medication - Assisted Treatment for Opioid

Addiction.

(1) State Authority. The state authority

is the departmentÓs Office of Substance

Abuse and Mental Health .

(2) Federal Aut hority. The federal

authority is the Center for Substance Abuse

Treatment.

(3) Determination of Need.

(a) Criteria. In accordance with

s. 397.427, F.S., the department shall not

license any new medication - assisted

treatment programs for opioid addict ion

until the department conducts a needs

assessment to determine whether additional

providers are needed in Florida. The

determination of need shall only apply to

methadone medication - assisted treatment

programs for opioid addiction. Department

of Corre cti on facilities are excluded

from this process. The department shall

use a methodology based on a formula that

identifies the number of people who meet the

criteria for dependence or abuse of heroin

or pain relievers who did not receive any

treatment, an d the number of opioid - caused

deaths. This formula will be weighted, with

70 percent driven by the number of people

with an unmet need for treatment and

30 percent driven by the number of deaths.

In its effort to determine need, the

department shall exam ine the following data:

1. Population estimates by age and by

county;

2. Number of opioid - caused deaths;

3. Estimated number of past - year nonmedical

pain reliever users; and

4. Estimated number of life - time heroin

users;

(b) Procedure. By August 28, 2017, the

department will conduct a needs assessment

to determine whether additional methadone

medication - assisted treatment providers are

needed in Florida. The department will

publish a determination of need i n the

Florida Administrative Register a nd on the

departmentÓs website at http://www.myfl

families.com/service - programs/substance -

abuse on August 30 , 2017. If the department

determines that additiona l providers are

needed, the department will also publish

instructions for submitting an appropriate

application.

1. Applicants interested in providing

methadone medication - assisted treatment must

complete and submit CF - MH 4036 titled,

ÐMethadone Medicat ion - Assisted Treatment

P rovider Application in Response to

Emergency RuleÑ, June 2017, incorporated

herein by reference. Form CF - MH 4036 is

available from the departmentÓs website

at https://eds.myflfamilies.com/DCFForms

Internet/Search/DCFFormSearch.aspx and at

http://www.myflfamilies.com/service -

programs/substance - abuse.

Applications must be complete and

re sponsive to all of the questions on this

form. Applicatio ns will be accepted at

department headquarters from October 2,

2017 September 22, 2017 at 8 a.m. Eastern

Time until October 23, 2017 October 13,

2017 , at 5 p.m. Eastern Time. Applications

must be delivered to the following address :

Florida Department of Children and Families,

Office of Substance Abuse and Mental Health,

1317 Winewood Boulevard, Building 6,

Tallahassee, Florida 32399 - 0700.

2. For the application review period in

response to this emergency rule, the

d epartment will use CF - MH 4037 titled,

ÐReview Form for Methadone Medication -

Assisted Treatment Provider Application in

Response to Emergency RuleÑ, June 2017,

incorporated herein by reference. Form CF -

MH 4037 is available from the departmentÓs

website at https://eds.myflfamilies.com/

DCFFormsInternet/Search/DCFFormSearch.aspx

and at http://www.myflfamilies.com/service -

programs/substance - abuse.

3. Should the number of applications for a

new provider in a Florida county exceed the

determined need, the selection of a provider

shall be based on the order in which

complete and responsive applications are

received by the Office of Substance Abuse

and Mental Health headquarters.

4. Applicants who are approved to apply for

licensure will receive notices from the

department by November 17, 2017 November 10,

2017 .

5. Applicants who receive approval notices

shall submit applications for licensure to

the departmentÓs regional Substance Abuse

and Mental Health off ice(s) where the

service will be provided. The regional

Substance Abuse and Mental Health office

will proces s applications for licensure in

accordance with the standards and

requirements in 65D - 30, F.A.C.

(4) through (6) No change.

Rulemaking Authority 397.321(5) F.S. Law

Implemented 397.311(25)(a)7 . , 397.321(1) ,

397.419 , FS. History Î New 5 - 25 - 00, Amended

4 - 3 - 03, Amended 8 - 25 - 17, Amended 9 - 19 - 17 .

THIS RULE TAKES EFFECT UPON BEING FILED WITH

THE DEPARTMENT OF STATE UNLESS A LATER TIME

AND DATE IS SPECIFIED IN THE RULE.

EFFECTIVE DATE: 9/19/2017

18 . Petitioners filed challenges to the Emergency Rule

at DOAH on December 11, 2017, 83 days after the effective date

set forth in the FAR. Respondent asserts that the Emergency

Rule is merely a n amendment to Rule 65DER 17 - 1, which had an

effective date of August 25, 2017. Thus, reasons Respondent,

challenges to the Emergency Rule were due on or before

November 23, 2017 , i.e., 90 days after August 25, 2017 .

However, emergency rules are not rene wable so as to expand

their validity beyond 90 days. § 120.54(4), Fla. Stat. As

set forth above, t he clear language appearing in the FAR

establishes September 19, 2017 , as the effective date of the

Emergency Rule . Had the Department wished to retain the

effective date from the prior rule, it certainly could have

done so. It did not. PetitionersÓ challenge to the Emergency

Rule was timely.

Background

19 . Florida has had rules in effect for 18 years

regarding the need for opioid treat ment centers aro und the

State. Florida Administrative Code Rule 65D - 30.014 is

entitled, Ð Standards for Medication and Methadone Maintenance

Treatment. Ñ This rule sets forth the process for providers to

request licenses to establish new opioid treatment facilities,

based on the DepartmentÓs annual determination of need.

According to the rul e, the Department is to conduct an annual

assessment of need, publishing the results of that assessment

by June 30 of each year , although, inexplicably, no assessment

was done for cale ndar year s 2016 or 2017 . After the need

assessment i s published, the Department direct s interested

parties to submit applications for licensure to the

DepartmentÓs district office in the area where the need

exists. All such applications would have to be submitted no

later than on a Ð closing date Ñ to be provided by the

Department .

20 . The DepartmentÓs di strict office would receive

the application (s) and conduct a formal rating of the

applicant(s). There were minimum requirements each applicant

must me et in order to be considered for licensure. If the

number of applicants exceed ed the determined need, the

selection of a provider would be done based on certain

substantive criteria, e.g., number of years the applicant has

been licensed; the organization al capability of the applicant;

and the applicantÓs history of non compliance with Department

rules.

21 . Pursuant to r ule 65D - 30.014, the Department had

conducted assessments in calendar years 2012, 2013, 2014, and

2015 . The award of licenses based on th e 2012 and 2013 need

assessment was delayed by litigation. A need for

31 additional treatment centers was found in 2014, but no

applications were accepted by the Department due to the

on going litigation relating to the previous years . The

following year, 2015, the Department found a need for only

f ive additional treatment cen ters , even though none of the

31 treatment centers identified as needed in 2014 had been

awarded to anyone . The 2015 assessment was lower than the

prior year due to some changes in t he methodology used by the

Department. T he Department did not accept any applications to

meet the established need in 2015 .

22 . One rationale for not accepting applications , even

though there was a need , was that the Department was drafting

new rules. That process would give stakeholders an

opportunity for input. The notices that the rule s were being

developed, however, were not filed until some 11 months after

the 2015 need projections were published. The Department

explained t hat it was busy with o ther rule making duties during

that time, causing some delay.

Developing the Emergency Rule

23 . After entry of the GovernorÓs executive orders, the

Department began the process of distributing the federal grant

money to existing treatment centers. The D epartment, though

it never met with the Governor to discuss use of the grant

funds, handed out the funds to various existing clinics in

order to help them deal with the clinicsÓ backlogs and waiting

lists. There was no discussion between the Governor and the

Department concerning the necessity for new clinics.

24 . A needs assessment was apparently conducted by the

Department . The Department based its assessment in part on

data it had gathered when applying for the federal grant.

Existing treatment cent ers had provided the Department waiting

lists, indicative of a greater need than could be met by the

existing clinic s. That data, however, was only from public

providers; private providers were not included. The public

providers were essentially those co ntracting with the

DepartmentÓs Ðmanaging entities,Ñ who act as intermediaries

between the provider and the Department.

25 . An emergency rule was proposed as the vehicle for

addr essing the need and acquiring applications for licensure.

Though the Depa rtmentÓs Director of Substance Abuse and Mental

Health thought it best to simply proceed with the rule

currently under development, the Emergency R ule was pursu ed.

The thinking at the Department was that the existing rule had

created co nsiderable litigati on that the E mergency R ule might

avoid. That did not happen.

26 . The emergent situation warranting an emergency rule

was , according to the Department, the s cenario described by

the Governor in his executive orders. The Department of

Health had declar ed a public health emergency , which was also

used as a basis for creating the Emergency Rule . The federal

grant funds, however, were not an impetus for creating the

Emergency Rule.

27 . The Emergency Rule relied upon data from calendar

year 2015, as it was the latest data available to the

Department at that time. The GovernorÓs executive orders had

also relied upon 2015 data . Some interim data had been

available, but the only full year of information available at

the time the rule was promulgated was for 2015. The interim

dat a , however, indi cated a sharp (approximately 30 percent )

increase in need.

28 . T he Department published a determination of need on

its website on August 30, 2017. Apparently the need

determination was not published in the FAR despite the

directive to do so in sub section (3)(b) of the Emergency Rule.

The Department found a need for one clinic each in 4 7 of

FloridaÓs 67 counties , a s well as for two in Hillsborough

County , for a total of 49 new clinics . Pursuant to the

Emergency Rule, interested applicants were to file an

application on the DepartmentÓs approved form (CF - MH 4036 ,

attached hereto as an Addendum) expressing an interest in

becoming licensed in one or more of those counties . Such

applications were to be Ðaccepted at department headqua rters

from October 2, 2017, at 8 a.m. , Eastern Time , until

October 27, 2017 at 5 p.m. , Easter n Time. Applications must

be delivered to [the department].Ñ In contrast to r ule 65D -

30.014, applications under the Emergency Rule were to be filed

at the DepartmentÓs headquarters in Tallahassee rather than in

the various district offices around the State.

2 9 . The application form util ized by the Department is a

one - page document . The form requests minimal identification

information concer ning the applicant and its business

(questions 1 th r ough 10). Question 11 asks if the applicant

plans to accept Medicaid - eligible, indigent, and/or pregnant

w omen as patients. The 12th question direct s the applicant to

submit documentation concerning its target population, proof

of a physician on staff, the anticipated date of initiation of

services, and proof of registration with the Department of

Revenue or Division of Corporations. The Department also

created a Ðreview form , Ñ used to check the complet eness of

application s . The review form mirrors the application ,

providing a space for the Department reviewer to state whether

the applicant had completed each section of the application

form .

30 . The Department maintains that the applicantsÓ

respon ses to Question 11 were not considered in its review of

the applications submitted under the Emergency Rule . This was

because , according to the Department, a response to that

question might favor one applicant over another. The

Department did not elabora te as to how this Ð favoritism Ñ might

negatively affect the process. The question had been used

under the prior rules and had been deeme d important,

presumably because -- as reported by some of the parties

herein -- a large majority of thei r patients were eit her

Medicaid - eligible, indigent persons, or pregnant women. It

certainly was reasonable that the Department would ensure that

those groups of citizens , who were undoubtedly accounted for

in the need assessment, had access to approved treatment

centers und er the Emergency Rule. Nonetheless, the Department

did not utilize the Question 11 responses in its review . This

is contrary to the plain language of the Emergency Rule , which

states: ÐApplications must be complete and responsive to all

questions on th is form.Ñ (emphasis added) . See 65DER17 -

2(3)(b)1.

3 1 . The Emergency Rule as published contained the

following language : ÐREASON FOR CONCLUDING THAT THE PROCEDURE

IS FAIR UNDER THE CIRCUMSTANCES : The procedure is fair under

the circumstances because i t ensures equitable treatment of

methadone medication - assisted treatment providers.Ñ Neither

the Emergency Rule language nor the Department at final

hearing provided a persuasive rationale for that statement and

conclusion. In fact, the Department acknow ledged that if the

first person in line had filed applications for all 49 new

clinics, all the other applicants would have been denied the

right to seek licensure. How is that f air?

32 . What the Emergency Rule did was to set a window

within which inte rested applicant s could either mail,

overnight - deliver, or hand - deliver a copy of the one - page

application and attachments to the DepartmentÓs headquarters

in Tallahassee. The Department felt that allowing

applications to be submitted via email would pote ntially crash

its email system, so email submission was not allowed. The

applications received first by the Department were to be

approved, notwithstanding any substantive shortcomings o r

comparative failings of those applications as compared to

applicati ons received later . No other criteria were

considered; first was deemed best. What is fair about

approving competing applications based on who file d first

rather than on substantive differences in the services being

proposed?

3 3 . What actually transpir ed vis - à - vis submission of the

applications was not foreseen by the Department or by most of

the applicants. That is, some applicants either lined up at

Department headquarters days prior to the 8:00 a.m. acceptance

time on October 2, 2017, or had someone wait in line for them.

Then, when the doors opened at 8:00 a.m. , the first person in

line presente d applications for 19 of the 49 sit es identified

by the Department as having a need. The second applicant in

line submitted 17 applications, etc. By the t ime each of the

Petitioners reached the front of the line, only minutes after

the doors had opened, applications for their prospective

counties of interest had already been filed. Under the

Emergency Rule, the earlier filed applications were accepted

with out comparison to competing applications. As a result,

Colonial was approved for 19 licenses; PAS was approved for

20 ; and Relax obtained eight ; i.e., 47 of the 49 licenses were

obtained by just three individual applicants. Again, the

Department acknowl edged that Ð[a]fter it, you know, happened

the way it did, there were many consider ation s that we should

have made. Ñ Ute Gazioch, J t . Exh. 6, page 81.

34 . Interestingly, the first application accepted by the

Department was by an applicant who did not even appear at

Department headquarters. That applicant, Lakeview Center,

Inc., submitted its application via FedEx. The FedEx box

containing Lakeview CenterÓs application was received and

clocked in by an office at Department headquarters , other than

the Substance Abuse and Mental Health office, at 7:40 a.m.,

i.e., prior to the window for filing . When the application

made its way to the appropriate office, it was deemed received

at 8:00 a.m. As a result, it was Ðfirst in line.Ñ The

incongruity of that situation was not persuasively justifi ed

by the Department. In fact, the Department testified that if

all of the applications had been filed at the wrong office, it

would likely have simply defaulted to an 8:00 a.m. arrival

time for each one.

3 5 . Upon b eing approved, an applicant would then be

allowed to submit an application for licensure. Under th e

licensure process, the applicant would be vetted in order to

assure it met at least mini mal requirements for obtaining a

license. No comparison of the app roved applicant to other

applicants was made by the Department to ascertain whether

another applicant might be superior as to services provided.

Rather, if the approved applicant could satisfy, even

minimally, the licensure requirements, it would be grant ed the

right to seek a license .

3 6 . Once licensed, it could take considerable time and

financial resources to effectuate the opening of a new opioid

treatment clinic. There are many factors to be addressed and

resolved, including but not limited to: acquisition of an

appropriate site, whether by way of purchase of undeveloped

property and new construction or lease/purchase of an existing

building; construction or renovation , as needed; zoning

concerns; permitting by state, county, and/or municipal

bo dies; staffing; coordination of state and federal licenses

or certifications; etc. It is not uncommon for the process to

take up to two years, sometimes more. In addition, the

financial expenditures could be in the hundreds of thousands

of dollars ( and e ven as much as a million dollars) for each

project. For this reason, the Department did not foresee that

any entity might apply for so many applications as actually

transpired.

3 7 . The likelihood that a single entity would have the

time, money, or othe r resources to move forward on multiple

products at one time is small. It is more likely that a

single entity receiving approval for multiple new clinics

might ÐbankÑ the approvals, expending time and money for only

a few at a time, at best. If so, that could result in far

fewer new clinics coming on line than the 49 projected by the

Department under the Emergency Rule . As the applications

contained no requirement to provide financial information, it

is impossible for the Department to determine whether the

approved entities , which received multiple approvals , could

successfully Î - and timely Î - complete their projects. There is

no specific time frame for which a granted applicant must

commence operations once approved . However, as the approvals

were done p ursuant to an Ðemergency,Ñ it follows that clinics

should be opened as soon as practicable.

38 . Petitioners assert that the Ðfirst in lineÑ scheme

enunciated in the Emergency Rule is arbitrary, capricious, and

patently contrary to a determination of th e applicantsÓ

ability to provide care to persons suffering opioid addiction.

The facts bear that assertion out.

CONCLUSIONS OF LAW

39 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

this proceedin g . § 120.5 6 , Fla . Stat.

40 . Petitioners ha ve standing pursuant to

section 120.56(1), Florida Statutes, to participate in this

proceeding as persons substantially affected by the emergency

rule. Each of the intervenors, except Symetria, has standing

to participate.

41 . There are significant differences between ÐregularÑ

rules and emergency rules. Section 120.54(4 ) sets forth the

law governing emergency rules and provides that:

(a) If an agency finds that an immediate

danger to the public health, safet y, or

welfare requires emergency action, the

agency may adopt any rule necessitated by

the immediate danger. The agency may

adopt a rule by any procedure which is

fair under the circumstances if:

1. The procedure provides at least the

procedural protecti on given by other

statutes, the State Constitution, or the

United States Constitution.

2. The agency takes only that action

necessary to protect the public interest

under the emergency procedure.

3. The agency publishes in writing at

the time of, or prio r to, its action the

specific facts and reasons for finding an

immediate danger to the public health,

safety, or welfare and its reasons for

concluding that the procedure used is fair

under the circumstances. In any event,

notice of em ergency rules, other than

those of educational units or units of

government with jurisd iction in only one

or a part of one county, including the

full text of the rules, shall be published

in the first available issue of the

Florida Administrati ve Register and

provided to the committee along with any

material incorporated by reference in the

rules. The agencyÓs findings of immediate

danger, necessity, and procedural fairness

shall be judicially reviewable.

42 . The Supreme Court of Florida has held that, Ð[I]f an

agency finds that Òa n immediate threat to the public health,

safety, or welfare requires emergency action,Ó it may adopt

Òany rule necessitated by the immediate danger,Ó i.e., an

emergency rule. See § 120.54(4), Fla. Stat. (2010). Ñ Whiley

v. Scott , 79 So. 3d 702, 71 1 - 12 (Fla. 2011 ) . In the present

case, the Department deemed the GovernorÓs executive orders

sufficient evidence of a threat to the public health, safety,

or welfare.

43 . Petitioners contend that no immedi ate danger exists

because: 1) t he data relied up on is three years old ; 2) t here

is already a rule in place to addres s the stated emergency;

and 3) t he executive o rder only directed distribution of funds

to treatment centers that already exist. While those concerns

are valid, they do not form the basis for the ultimate finding

in th is Final Order.

44 . Petitioners s eek a final o rder determining that the

DepartmentÓs emergency rule 65DER17 - 2 constitutes an invalid

exercise of delegated legislative authority in violation of

section 120 .52(8) . They are c h allenging the validity of the

r ule in accordance with section 120.56, which states in

pertinent parts:

120.56 Challenges to rules . -

(1) GENERAL PROCEDURES FOR CHALLENGING T HE

VALIDITY OF A RULE OR A PROPOSED RULE.

(a) Any per son substantially affected by

a rule or 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

legislative authority.

* * *

(e) Hearings held under this sect ion shall

be de novo in nat ure. The standard of proof

shall be the preponderance of the evidence.

Hearings shall be conducted in the same

manner as provided in ss. 120.569 and 120.57,

except that the administrative law judgeÓs

order shall be final agency action. Other

substantiall y affected persons may join the

proceedings as intervenors on appropriate

terms which shall not unduly delay the

proceedings . . . .

(2) CHALLENGING PROPOSED RULES / SPECIAL

PROVISIONS.

(a) [ T ] he petitioner h as the burden of going

forward. The agency the n has the

burden to prove by a preponderance of the

evidence that the proposed rule is not an

invalid exercise of delegated legislative

authority as to the objections raised.

* * *

(c) When any substantially affected person

seeks determination of the in validity of a

proposed rule pursuant to this section, the

proposed rule is not presumed to be valid or

invalid.

* * *

(5) CHALLENGING EMERGENCY RULES; SPECIAL

PROVISIONS. [Contains timeframes for

emergency rules which were waived by the

parties in this matter.]

45 . Petitioners met their initial burden of going

forward in this case through the presentation of their cases -

in - chief. They showed the arbitrariness of a process that

ignores substance in favor of blind luck, i.e., where you

might find yours elf in line. The burden therefore shift ed to

the Department to prove by a preponderance of the evidence

that the Emergency R ule is not an invalid exercise of

delegated legislative authority. Id. ; see also Fla. B d. o f

Med. v. Fla. Acad. of Cosmetic Surg. , Inc. , 808 So. 2d 243,

251 (Fla. 1st DCA 2002).

46 . Rulemaking is a legislative function and, as such,

it is within the exclusive aut hority of the Legislature

under the separation of powers provision of the Florida

Constitution. See S w. Fla. Water Mgmt. Dist. v. Save the

Manatee Club, Inc. , 773 So. 2d 594, 598 - 99 (Fla. 1st DCA

2000). An administrative rule is valid only if adopted under

a proper delegation of legislative authority. See I d. ,

Chiles v. Children A, B, C, D, E, and F , 589 S o . 2d 260 (Fla.

1 991); Askew v. Cross Keys Waterways , 372 So. 2d 913 (Fla.

1978).

47 . A proposed (or emergency) rule may be challenged

pursuant to section 120.56, Florida Statutes, only on the

ground that it is an Ðinvalid exercise of delegated

legislative authority ,Ñ d efined in section 120.52(8) , as :

[ A ]ction which goes beyond the powers,

functions, and duties delegated by the

Legislature. A proposed or existing rule is

an invalid exercise of delegated leg islative

authority if any one of the following

applies :

* * *

(d) [T]he rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency.

(e) T he rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a ru le is

capricious if it is adopted without though

or reason or is irrational . . . .

48 . The legislation addressing substance abuse services

is known as the Ð Hal S. Marchman Alcoh ol and Other Drug

Services ActÑ (the ÐActÑ). See § 397.301, Fla. Stat. Th e

particular statutes being implemented by the Emergency Rule

are sections 397.311(25)(a)7 . , 397.321(1), and 397.419,

Florida Statutes. The rulemaking authority is found in

section 397.321(5), which says the Department shall ÐAssume

responsibility for ado pting rules as necessary to comply with

this chapter , including other state agencies in this effort,

as appropriate.Ñ

49 . Pertinent portions of the Act include:

Section 397.305(3) Î Ð It is the purpose of

this chapter to provide for a comprehensive

continu um of accessible and quality

substance abuse prevention . . . while

protecting and respecting the rights of

individuals , primarily through community -

based, private, not - for - profit

providers . . . .Ñ

Section 397. 305(6 ) Î Ð It is the intent of

the Legis lature to ensure within available

resources a full system of care for

substance abuse services based on identified

needs, delivered without discrimination and

with adequate provision for specialized

needs. Ñ

Section 397.321 (1) Î Ð Develop a

comprehensive s tate plan for the provision

of substance abuse services. The plan must

include: [N]eed for services . . . [C]ost

of services . . . and [S]trategies to

address the identified needs and priorities.

(Emphasis added) .

50 . The DepartmentÓs interpretation of the Act is

entitled to great deference because the Department is charged

with administering th ose statutory provision s . Verizon Fla.,

Inc. v. Jacobs , 810 So. 2d 906, 908 (Fla. 2002); BellSouth

Telecom m s, Inc. v. Johnson , 708 So. 2d 594, 596 (Fla. 1998) .

The deference to a n agency interpretation of a st atu t e it is

charged with enforcing applies even if other interpretations

or alternative rules exist. Atlantic Shores Resort v. 507 S.

St. Corp. , 937 So. 2d 1239, 1245 (Fla. 3d DCA 2006); Miles v.

Fla. A & M Univ. , 813 So. 2d 242, 245 (Fla. 1st DCA 2002);

B d . of Tr s. o f Int. Imp. Trust Fund v. Levy , 656 So. 2d 1359 ,

1363 (Fla. 1 st DCA 1995 ) .

51 . Likewise, agency rulemaking efforts are afforded

deference. Agrico Chem. Co. v. State , DepÓt of Envtl. Reg . ,

365 So. 2d 759 (Fla. 1st DCA 1978). ÐAgencies are afforded

wide deference in the exercise of lawful rulemaking authority

which is clearly conferred or fairly implied and consistent

with the agencyÓs general statutory duties.Ñ Charity v. Fla.

State Uni v. , 680 So. 2d 463, 466 (Fla. 1st DCA 1996).

PetitionersÓ burden to establish that an agencyÓs rulemaking

efforts are an invalid exercise of delegated legislative

authority Ðis a stringent one indeed.Ñ Agrico , 365 S o. 2d

at 763.

5 2 . Emergency Rule 65DE R1 7 - 2 provides that an immediate

danger to the public health, safety , or welfare exists, and

that it is necessary to expand the methadone medication -

assisted treatment services in needed areas of the state as

part of a comprehensive plan to address the opi oid crisis.

The Emergency Rule does not address whether the services to be

provided will be ÐaccessibleÑ to all persons within identified

areas of need, specifically, those who are on Medicaid, are

indigent, or are pregnant. Likewise, the Emergency Rule does

not assume a Ðfull system of care . . . delivered without

discrimination . . . . Ñ § 397.305(6), Fla. Stat. Failure to

provide assurance that all people identified in the need

assessment will be served calls into question the validity of

the Emergenc y Rule.

53 . The system for accepting applications on a first -

come, first - served basis is arbitrary. It is illogical

to assume that the first applications filed, containing

s cant information , are equal or superior to later filed

applications. This sc heme contravenes the basic expectation

of law for reasoned agency decision making. See Agric o Chem.

Co . , 365 So. 2d at 763 ; see also the learned analysis of this

issue by Administrative Law Judge Watkins in Costa Farms, LLC

v. DepÓt of Health , Case No. 14 - 4296RP (F la. DOAH

Nov. 14, 2014).

54 . G e nerally, where an agency receives mut u ally

exclusive applications, i.e., wher e only a limited number

can be approved from the totality of the submissions, a

comparative review is warranted. See Bio - Med. Applicat ions of

Clearwater, Inc. v. D epÓt of HRS , O ff. of Cmty. Med.

Facilities , 370 So. 2d 19 (Fla. 2d DCA 1979) , where the Court ,

referring to Ashbacker Radio Corp. v. F.C.C. , 326 U.S. 327

(1945), said:

I n Ashbacker, the Supreme Court laid

down a general princi ple that an

administrative agency is not to grant one

application for a license without some

appro priate consideration of another Bona

fide and timely filed application to render

the same service; the principle, therefore,

constitutes a fundamental doctrin e of fair

play which administrative agencies must

diligently respect and courts must be

ever alert to enforce. Railway Express

Agency, Inc. v. United States , 205 F. Supp.

831 (S.D.N.Y.1962).

We agree that Ashbacker should apply

whenever an applicant is a b le to show that

the granting of authority to some other

applicant will substantially prejudice his

application. Great Western Packers Express,

Inc. v. United States , I.C.C., 263 F.

Supp. 347 (D.Col.1966). In such a case

fairness requires that the agency conduct a

comparative hearing at which the competing

applications are considered simultaneously.

Only in that way can each party be given a

fair opportunity to persuade the agency that

its proposal would serve the public interest

better than that of its competitor.

55 . When one applicant would be substantially prejudiced

by the approval of another applicant, fairness require s some

comparison of the competing applications. Id.

56 . Under the Administrative Procedure Act, there must

be reasoned justific ation for an agencyÓs denial of a license

(or, as in the present case, the right to seek a license).

See generally § 120.60, Fla. Stat. The Emergency Rule does

not provide any justification whatsoever ; it deprives the

denied applicants the due process af forded by the Legislature.

See Ashbacker Radio , 326 U.S. at 333.

57 . T he unbridled discretion by the Department to accept

an application submitted by way of FedEx before the designated

time for filing , and deeming it timely filed , is significant .

Obvi ously, the process was inconsistent, at best, and flawed.

Recognizing the DepartmentÓs legitimate efforts to respond as

quickly as possible to a declared emergency, the Emergency

Rule is , nevertheless , inadequate.

58 . In total, it is clear the Emergency Rule, as

published and enforced, is arbitrary, constituting an invalid

exercise of the DepartmentÓs delegated legislative authority.

ORDER

Based on the foregoing Findings of Fact and Conclusions

of Law, it is hereby

ORDERED that:

Emergency Rule 65DE R17 - 2 of the Florida Administrative

Code is an invalid exercise of delegated legislative authority

as defined in section 120.52(8), Florida Statutes; and

Jurisdiction is reserved for the undersigned to consider

motions for fees and costs pursuant to secti on 120.595(3),

Florida Statutes.

DONE AND ORDERED this 26th day o f April , 2018 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee P arkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of April , 2018 .

COPIES FURNISHED:

Rebecca Falcon Kapusta, Esquire

Depart ment of Children and Families

9393 North Florida Avenue

Tampa, Florida 33612

(eServed)

Lacey Kantor, Esquire

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399

(eServed)

Donna Elizabeth Blanton, Esquire

Brittany Adams Long, Esquire

Radey Law Firm, P.A.

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301

(eServed)

J. Carter Anderson, Esquire

Bryan D. Hull, Esquire

Bush Ross, P.A.

Post Office Box 3913

Tampa, Florida 33601 - 3913

Will iam D. Hall, Esquire

Daniel Ryan Russell, Esquire

Marc W. Dunbar, Esquire

Jones Walker, LLP

Suite 130

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

James A. McKee, Esquire

Christopher M. Kise, Esquire

Joshua M. Hawkes, Esquire

Benjamin J. Grossman, Esquire

Foley & Lardner LLP

106 East College Ave, Suite 900

Tallahassee, Florida 32301

(eServed)

Mia L. McKown, Esquire

Eddie Williams, III, Esquire

Holland & Knight LLP

Suite 600

315 South Calhoun Street

Tallahassee, Florida 32301

(eServed)

David C. Ashburn, Esquire

Michael J. Cherniga, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Post Office Drawer 1838

Tallahassee, Florida 32301

(eServed)

J. Stephen Menton, Esquire

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 Sou th Monroe Street

Tallahassee, Florida 32301

(eServed)

R. Terry Rigsby, Esquire

Matthew Bryant, Esquire

Pennington, P.A.

215 South Monroe Street, Second Floor

Post Office Drawer 10095

Tallahassee, Florida 32302 - 2095

(eServed)

Kyle L. Kemper, Esquire

Stev en T. Mindlin, Esquire

Sundstrom & Mindlin, LLP

2548 Blairstone Pines Drive

Tallahassee, Florida 32301

(eServed)

Maureen McCarthy Daughton, Esquire

Maureen McCarthy Daughton, LLC

Suite 304

1725 Capital Circle Northeast

Tallahassee, Florida 32308

(eServe d)

William E. Williams, Esquire

George T. Levesque, Esquire

Timothy M. Cerio, Esquire

Gray Robinson , P . A .

Suite 600

301 South Bronough Street

Tallahassee, Florida 32301

(eServed)

Ernest Reddick, Program Administrator

Anya Grosenbaugh

Florida Administra tive Code and Register

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallaha ssee, Florida 32399 - 1400

(eServed)

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

John Jackson, Acting General Counsel

Department of Children and Famili es

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68,

Florida Statu tes. Review proceedings are governed by the

Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing one copy of a Notice of Administrative

Appeal with the agency clerk of the Division of Administrative

Hearings and a second copy, a ccompanied 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

Administrative Appeal must be filed within 30 days of

ren dition of the order to be reviewed.