18-002838RP Louis Del Favero Orchids, Inc. vs. Florida Department Of Health, Office Of Compassionate Use Status: Closed DOAH Final Order on Monday, August 6, 2018.

Summary: Petitioner proved that the Proposed Rule is an invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUIS DEL FAVERO ORCHIDS, INC.,

Petitioner,

and

MECCA FARMS, INC.,

Intervenor,

vs. Case No. 18 - 2838RP

FLORIDA DEPARTMENT OF HEALTH,

OFFICE OF COMPASSIONATE USE,

Respondent.

________________________ _______/

FINAL ORDER

Pursuant to notice to a ll parties, a final hearing

was conducted in this case on J uly 2, 20 1 8 , in Tallahassee ,

Florida, before Administrative Law Judge R. Bruce McKibben of

the Division of Administrat i ve Hearings (ÐDOAHÑ) . The parties

were represented as set forth below.

APPEARANCES

For Petitioner: Seann M. Frazier, Esquire

Marc Ito, Esquire

Parker, Hudson, Rainer & Dobbs, LLP

Suite 750

215 South Monroe Street

Tallahassee, Florida 32301

For Respondent: Eduardo S. Lombard, Esquire

Megan S. Reynolds, Esquire

William Robert Vezina, III, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

Nichole Chere Geary, General Counsel

Michael Jovane Williams, Esquire

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399

For Intervenor: Glenn Thomas Burhans, Esquire

Gigi Rollini, Esquire

Stearns Weaver Miller Weissler

Alhadeff & Sitterson

Suite 700

106 East College Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether proposed Florida

Administrative Code Rule 64 - 4.002 (the Ð Propose d RuleÑ) is an

invalid exercise of the legislative authority delegated to the

Department of Health (the ÐDepartmentÑ) .

PRELIMINARY STATEMENT

On May 1, 2018 , the Department published the P ropose d Rule

in the Florida Administrat ive Registry, Volume 44, Numbe r 85. A

public hearing was held on the Proposed Rule on May 24, 2 018.

Petitioner, Louis Del Favero Orchids, Inc. (ÐFaveroÑ), timely

filed an administrative challenge to the P roposed Rule,

resulting in the instant proceeding. Intervenor, Mecca Farms,

Inc . (ÐMeccaÑ), intervened for the purpose of declaring the

Proposed Rule an invalid exercise of delegated legislative

authority .

At the final hearing, Favero called two witnes ses: David

Vukelja; and Courtney Coppola, deputy director of the Office of

Med ical Marijuana Use (formerly known as the Office of

Compassionate Use). FaveroÓs Exhibits 2, 3, 5, 8, 9, 12 , 13 ,

and 19 were admitted into evidence. Mecca did not call any

witnesses; its Exhibits 7 through 9 were admitted into evidence.

The Department c alled one witness: Shanno n Shepp, executive

director for the Florida Department of Citrus. Department

Exhibits 9 through 12 were admitted into evidence. Joint

Exhibit 1 was also admitted into evidence.

A t ranscript of the final hearing was ordered; it was filed

at DOAH on July 12, 2018 . The parties agreed to submit proposed

final orders (PF Os) within 10 days after the Transcript was

filed , but were subsequently granted one additional day . Each

party timely submitted a P F O , and each was duly conside red in

the preparation of this Final Order.

Unless specifically stated otherwise herein, all references

to Florida Statutes shall be to the 2017 version.

FINDINGS OF FACT

1 . In order to better contextualize the facts presented at

final hearing and discu ssed below , the following excerpts from

the Proposed Rule and the underlying statutory provision are

provided:

Section 381.986 , Florida Statutes

(8) Medical Marijuana Treatment Centers. -

(a) The department shall license medical

marijuana treatment cent ers to ensure

reasonable statewide accessibility and

availability as necessary for qualified

patients registered in the medical marijuana

use registry and who are issued a physic i an

certification under this section.

* * *

2. The department shall licen se as medical

marijuana treatment centers 10 applicants

that meet the requirements of this section,

under the following parameters:

a. [ Previously denied applicants meeting

certain requirements not relevant to the

instant action.]

b. [One applicant fro m a specific class

pursuant to a federal lawsuit.]

c. As soo n as practicable, but not

later than October 3, 2017, the Department

shall license applicants that meet the

requirements of this section in sufficient

numbers to result in 10 total license s

issu ed under this subparagraph, while

accounting for the number of license s issued

under sub - subparagraphs a. and b.

3. For up to two of the licenses issued

under subpar agraph 2., the department

shall give preference to applicants that

demonstrate in their applications that they

own one or more facilities that are, or

were, used for the canning, concentrating,

or otherwise processing of citrus fruit or

citrus molasses and will use or convert the

facility or facilities for the processing of

marijuana.

(Emph asis added) .

Florida Administrative Code Rule 64 - 4.002

(Proposed)

(1)(f) Fo r applicants seeking

preference for registration as a medical

marijuana treatment center pursuant to

ss. 381.986(8)(a)3., F.S., the applicant

must provide evidence that:

1. Th e property at issue currently

is or was p reviously used for the

canning, concentrat ing, or otherwise

processing of citrus fruit or citrus

molasses. In order to demonstrate the

p roperty meets this criteria, the applicant

may provide documentation that the applicant

currently holds or has held a registration

certificate pursuant to section 601.40, F.S.

A letter from the Department of Citrus

certifying that the property currently is

or was previously used for the canning,

concentrating, or otherwise processi ng of

citrus fruit or citrus molasses will be

accept ed as sufficient evidence.

2. The appli cant as an individual holds,

in his or her name, or the applicant as an

entity holds, in the legal name of the

entity, the deed to property meeting the

criteria s et forth in subparagraph 1. above ;

and

3. A brief explanation of how the property

will be used for purposes of growing,

processing, or dispensing medical marijuana

if the applicant is selected for

registration.

* * *

(6) Subject matter experts will

s ubstantively and comparatively review,

evaluate, and score applications using [the

Scorecard incorporated by reference].

* * *

(a) 7.(b) Scores for each section of the

application will be combined to create an

applicantÓs total score. The department

wi ll genera te a final ranking of the

applicants in order of highest to lowest

scor es . . . .

(c) In accordance with ss. 391.986(8)(a)3.,

F.S. , the two highest scoring applicants

that own one or more facilities that are, or

were, used for the canning, conce ntrating,

or otherwise processing of citrus fruit or

citrus molasses and will use or convert the

facility or facilities for the processing of

medical marijuana will receive an additional

35 points to their respective total score.

(7) Licen ses will be a warded,

subject to a vailability as set forth in

ss. 381.986(8)(a)2. and 381.986(8)(a)4.,

F.S. , based on the highest total score in

the following manner:

(a) The highest scoring applicant that is a

recognized member of the Pigford or [the

Black Farmers Di scrimination Litigation]

will receive a license.

(b) The remaining highest scoring

applicants, after the addition of the

preference po ints for applicants pursuant

to paragraph (7)(c) above, will receive

licenses up to the statutory cap set forth

in ss. 381.986(8)(a)2., F.S.

(c) The remaining highest scoring

applications, after removing any preference

points received under paragraph (7)(c) ,

will receive l icenses up to the statutory

cap . . . .

(Emphasis added) .

2 . T he Department is an agency of t he State of Florida

charged with administering and enforcing laws related to the

general health of the people of the state. § 381.0011(2), Fla.

Stat. As part of this duty, the Department is charged with

implementing the Compassionate Medical Cannabis Act of 2014.

See § 381.986, Fla. Stat.

3 . Favero is a Florida corporation in good standing since

its incorporation in 1974, primarily engaged in the business of

growing orchids. Favero aspires to file an application for

licensure as a medical marijuana tr eatment center (ÐMMTCÑ).

4 . Following the passage of Senate Bill 8 A by the

2017 Florida Legislature, whic h substantially rewrote

section 318.986, Florida Statu tes, Favero decided to seek

the citrus preference described in section 381.986(3)(a)3 .

(hereinaf ter referred to as the ÐPreference StatuteÑ) . To that

end, Favero purchased a citrus processing business in Safety

Harbor, Flor ida, for approximately $775,000, including the

businessÓ s real property and all facilitie s located thereon.

The purchase took p lace prior to publication of the Proposed

Rule.

5 . The purchase of the Safety Harbor property reduced

FaveroÓs financial liquidity but, presumably, not its net worth

as the value of the property would replace the cash expenditure

made for the purchase. I t is FaveroÓs intent to convert the

citrus processing facility located on the property into a

medical marijuana processing facility if Favero receives the

requisite license as a MMTC.

6 . Favero contends, as stated in the following paragraphs

of its Peti tion Challenging the Invalidity of Proposed

Rule 64 - 4.002:

17. The Proposed Rule grants a preference

to an applica nt who owns ÐpropertyÑ that

was once u sed for citrus processing.

The statute, however, clearly grants the

preference only to applicants wh o Ðown one

or more facilities that are, or were, used

for the canning, concentr ating, or otherwise

processing . . . . Ñ

18. By using the broader word ÐpropertyÑ

rather than Ðfacility,Ñ the Department is

granting the citrus preference to a broader

group of applicants tha n the statute

permits, such as owners of packinghouses and

other properties that fail to meet the

definition of ÐprocessorÑ or were not used

for ÐcanningÑ or Ðconcentrating.Ñ The

statute is clear and unambiguous.

19. The use of the word Ð propertyÑ

rather than the statutory term ÐfacilitiesÑ

renders the rule invalid because the use

of that term exceeds the DepartmentÓs

rulemaking authority, enlarges and modifies

and contrave nes the requirements of

Section 381.986(8)(a)3., is vague, fails

to establish adequ ate standards for agency

decisions, vests unbridled discretion in the

agency and is arbitrary and capricious.

See § 120.52(8). , Fla. Stat.

* * *

21. The Proposed Rule allows for a

preference to only some applicants that

own a citrus pro cessing facility. Under

the scoring system, applicants demonstrating

that they own a citrus processing facility

may receive an additional 35 points.

However, the Proposed Rule does not

guarantee that any applicant owning a citrus

processing facility will actually receive

those points or get a license.

22. The Proposed Rule merely grants an

additional 35 points to two applicants. The

Department of Citrus has i ndicated that more

than a dozen companies will qualify for the

citrus preference. Under the Pr oposed Rule,

most of those applicants would receive no

additional points despite qualifying for the

statutory preference.

23. Additionally, the Proposed Rule

provides no assurance that any applicant

qualifying for the citrus preference will

actually rece ive a license. The Form

adopted by the Proposed Rule allows

Department evaluators to award a maximum of

1,150 points in several categories. The

additional 35 points available under the

Proposed Rule amount to an addition of just

a 3% bonus. If those ext ra 35 points are

not enough to exceed the scores of other

applicants, then no citrus - preference

qualifying applicant will receive a license.

7 . Favero contends that reduction of its liquid assets

could have a negative impact on its overall financial co ndition

when considered by the Department as it reviews FaveroÓs MMTC

application. Favero is concerned that this negative impact may

not be completely offset by the citrus preference it is seeking.

8 . Mecca is a Florida corporation located at 7965 Lantan a

Road, Lantana, Florida. It has existed since November 15, 1973,

has operated in Florida since the early 1970 s, and began

citrus farming on approximately 2,000 acres in 1983. Mecca

has been and is curren tly licensed as a citrus dealer and a

regulated ci trus processing plant and citrus packinghouse.

The ÐprocessingÑ done by Mecca does not involve canning or

concentrating citrus. Mecca ÐprocessesÑ citrus in its Ðfresh

fruit formÑ (discussed more fully below). Mecca intends to

co n vert its property and fa cilities for the purpose of growing,

processing or dispensing medical marijuana if its application

for an MMTC license is approved. Mecca contends the citrus

preference in the Proposed Rule needs further clarification.

Mecca also asserts the evaluation a nd scoring system with

respect to the citrus preference constitutes an invalid exercise

of the DepartmentÓs delegated legislative authority.

The Scoring System

9 . The MMTC application has 16 separate sections. An

applicant may be awarded up to 50 points on some sections, up to

100 points on other sections. The total number of points any

application might receive is 1150 , presuming a perfect score on

each section . Each of the indi vidual sections, whether

for 50 or 100 points, is graded in accordance with an evaluation

rubric. The rubric contains five categories of scores which are

used by reviewers, allowing for a range of points in each

section. The five categories each have a range d epending on

whether the section allows 50 or 100 points. T he rubric

directs that a category 5 respo nse could be awarded between

40 and 50 points in the 50 - point sections , or between 80 and

100 points in a 100 - point section . A category 4 response

could get between 30 and 39 points (or 60 to 79 points); a

category 3 could a ward 20 to 29 points ( or 40 to 59 points ) ; a

category 2 could be worth 10 to 19 points ( or 20 to 39 points ) ;

and a category 1 might award 0 to 9 points ( or 0 to 19 points ) .

Thus, an applicant may be awarded points anywhere within the

range in each categor y for each section of the application .

10 . By way of example, category 5 under the rubric

(wherein a reviewer may give an application 40 to 50 or 80 to

100 points) directs the reviewer as follows:

Applicant addressed all items. When

necessary, each ite m has multiple, specific

examples of experience and knowledge.

Experience and knowledge are connected to

specific, identifiable people in the

application. Plans are clear, detailed,

well document e d, and thorough. All charts,

photographs, maps, sketches, and other

supplemental information are clear and

legible. When necessary, applicant provides

full documentation for representations of

future performance. Responses related to

financial reflect robust financial resources

and clear lines of authority wit hin the

organizations.

11 . By comparison, under Category 3, which could award

20 to 29 or 40 to 59 points, the rubric directs the reviewer to

consider:

Either:

(1) Applicant res ponded to all items.

Applicant responds to items addressing

experience an d knowledge, though answers

tend to lack specificity. Plans are

provided, but are lacking in clarity,

documentation, or thoroughness. When

necessary, some supplemental information is

provided. Responses related to financials

do not reflect robust financ ial resources,

but do not raise doubts of applicantÓs

financial viability, or the organization has

unclear lines of authority, or ;

(2) Most responses are sufficient to be

considered Category 4 or 5 Responses, but

applicant fails to address some items.

12 . Favero asserts that allowing a reviewer to award

points from a n allowable range gives unbridled discretion to the

Department. The argument misses the point that the ranges in

each category direct the reviewer on how to score, while

allowing some lee way in determining which applications are

slightly better or worse than their competitors. Depending on

the strength or weakness of one applicantÓs response vis - à - vis

another applicant, it is reasonable to assign more or fewer

points in a comparative revi ew . The rubric is quite descriptive

and allows for a nuanced review of responses by the Department

reviewers.

The Preference

13 . The Preference Statute asserts a preference Ðfor up to

two of the licenses issued , Ñ i.e., past tense. There are no

licenses Ð issued Ñ during the application review process, so the

preference is actually assigned before licensure. The

Preference Statute is somewhat confusing in this regard.

14 . The Proposed Rule attempts to reconcile this

d iscrepancy by assigning preference poi nts as a part of the

application review process , while still approving the most

qualified applicants . That approach is reasonable and has

merit; it allows the preference to be assigned but does not

attempt to insert it into the actual licensure process. The

Proposed Rule assigns the preference points at the end of the

review, i.e., after an application receives its Ðtotal score.Ñ

Thus, an applicant could conceivably be awarded 1185 points on

the 0 to 1150 point scale.

15 . Regardless of how the points are assigned, Favero

contends that the 35 preference points are to o insignificant as

compared to a possible (perfect) score of 1150 during

application review. That number of points (35) would be only

about three percent of a perfect score . The lower the average

scores of all applications, however, the more the 35 points

might come into play. If all applicants received an average

score of 575 total points, the preference points would be twice

as important as compared to perfect 1150 scores.

16 . The assig nment of the preference points only

after totaling the scores is a legitimate and acceptable method .

Taking the 16 sections of the application separately, 35 points

assigned in any one section could be quite significant. In

fact, t he Department arrived a t the 35 points by taking the

average number of possible points per section, i.e., 72, and

assigning approximately half of that amount to reach the 35 -

point preference. The preference points are not just an

arbitrary number assigned by the Department.

17 . F avero also objects that the Proposed Rule only

assigns the 35 preference points to the two highest scoring,

eligible applicants , i.e., those who will convert a citrus

facility to process medical marijuana . If those two eligible

applicants were more tha n 35 points below other, non - eligible

applicants Ó scores , assign ment of the preference points would

not result in the approval of any eligible applicants.

18 . The plain language in the Preference Statute and the

Proposed Rule allows for a preference of Ðup to twoÑ applicants.

There is, therefore, no mandate that any applicants must receive

the preference. While the Legislature can be presumed to have

want ed preference points to be awarded (else why would the

Preference S tatute exist?), the language of the statute merely

limits the number of entities which could get such a preference.

19 . T he Department, interpreting a statute it is charged

with implementing, interprets section 381.986 (8)(a)3. to mean

the issuance of available licenses to as many as t wo entities

which are eligible for the preference. The Proposed Rule allows

the Department to assess an applicantÓs entitlement to the

preference, to assign the preference, and to meet its statutory

obligation.

Property versus Facility

20 . The Legislatu re clearly intended to give a preference

to applicants who Ðown . . . fac ilities that are, or were,

used for canning, concentrating, or otherwise processing of

citrus . . . and will use or convert the . . . f acilities for

the processing of medical marijuan a.Ñ The Legislature failed,

however, to provide guidance by way of definitions .

21 . While the Legislature chose the words Ðfacility or

facilitiesÑ in the Preference Statute, the Department

complicated the issue by using the word ÐpropertyÑ for the most

p art, but also using the words Ðfacility Ñ and Ð facilitiesÑ at

times. Favero contends that a property is much broader in scope

than a facility, and the Department therefore exceeded its

delegated legislative authority. The Department argues that

f acilities used to process citrus m ust be located on some

property , obviously . But, f acilities located on a property

might be leased, so that the fee simple owner of the property is

different from the leaseholder of that facility. Thus, if an

applicant for a medic al marijuana treatment center license wants

to avail itself of the preference, it would need to own the

facility. Whether that means the applicant must own the

property on which the facility is located is not clear in the

Preference Statute or in the Prop osed R ule.

22 . The Department argues that the way to show ownership

of a facility is by way of a deed to the property on which the

facility is located. In fact, Favero will use a warranty deed

to prove ownership of the facilities it purchased in order to

obtain the preference. But if Favero purchased land on which

citrus had been grown but not processed, i.e., if there had been

no facilities on the land to can, concentrate or otherwise

process the fruit , except in fresh fruit form , the preference

would n ot apply. And if an applicant obtained a leasehold

interest in a facility, it would not be able to Ðshow ownershipÑ

by way of a deed to the property.

23 . The Preference Statute requires the applicant to

convert the facility in order to gain the preferenc e. I t is

unclear how a piece of unimproved property can be Ð c onverted Ñ to

another use; land is land. This begs the question of whether

growing citrus on a piece of property, and then removing all the

citrus trees in order to grow medical marijuana, is a

ÐconversionÑ of a facility as contemplated by the Legislature.

Neither the Preference Statute nor the Proposed Rule contain any

definitional assistance to answer that question.

24 . An important question to be answered is whether the

growing of citrus con stitutes ÐprocessingÑ as alluded to by the

Legislature . T he Preference Statute provides no definition of

the word. The Citrus Code (chapter 601, Florida Statutes) also

does not define Ðprocessing,Ñ but does describe a ÐprocessorÑ of

citrus as : Ò[A]ny pe rson engaged within this state in the

business of canning, concentrating, or otherwise processing

citrus fruit for market other than for shipment in fresh fruit

form .Ñ § 601.03(32), Fla. Stat. (Emphasis added) .

25 . Processing must therefore mean somethin g other than

merely growing citrus and packing it up for shipment . That

being the case, a property where citrus is grown that is

ÐconvertedÑ to a property growing marijuana would not afford an

applicant a preference. There must be some ÐfacilityÑ that is

or has been used to process citrus , i.e., do ing something more

with the raw product, in order to constitute Ðprocessing.Ñ

26. Therefore, a Ðpackinghouse,Ñ i.e., Ð[a]ny building,

structure, or place where citrus fruit is packed or otherwise

prepared for market or shipment in fresh fruit form,Ñ would not

be engaged in ÐprocessingÑ citrus. See § 601.03(29), Fla. Stat.

27 . Mecca, which owns property where citrus was grown ,

picked, graded, sorted, polished, cleaned and packaged for

transfer Ðin fresh fruit form,Ñ would not be a processor,

either. Mecca owns a packinghouse only, not a processing

facility as that term seems to be used by the Legislature. Its

operations were not part of the Ðcanning, concentrating, or

otherwise processing citrus fruit other than for shipment in

fresh fruit form . Ñ

CONCLUSIONS OF LAW

28 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.56, 120.569 , and 120.57(1),

Florida Statutes ( 201 8) .

29 . Section 120 . 57(1)(k) states: ÐAll proceedings

conducted under this subsection shall be de novo.Ñ The de novo

standard has not been altered by section 381.986 , Florida

Statutes, or any other statute relating to the subject matter in

this case. Thus, under section 120.57(1), the final hearing at

DOAH was conducted Ðto formulate final agency action, not to

review action taken earlier and preliminarily.Ñ J.D. v. Fla.

DepÓt of Child. & Fam s. , 114 So. 2d 1127, 1132 (Fla. 1st DCA

2013) (quoting McDo nald v. DepÓt of Banking & Fin. , 346 So. 2d

569, 584 (Fla. 1st DCA 1977)).

30 . The party challenging a proposed agency rule has the

burden of going forward. Then the agency has the burden to

prove by a prep onderance of evidence that the P roposed R ule i s

not an invalid exercise of delegated legislative authority as to

the objections raised . § 120.56(2)(a), Fla. Stat.

31 . A p etitioner satisfies its burden of going forward by

establishing a factual basis for its objections to the proposed

rule. See St . Johns River Water Mgt. v. Con s ol. - Tomoka Land

Co. , 717 So. 2d 72, 76 (Fla. 1st DCA 1998)( superseded on other

grounds by chapter 99 - 379, §§ 2, 3, Laws of Fla.). This burden

requires P etitioner to offer more than mere conclusions or

allegation s that a rul e is arbitrary or capricious or is an

invalid exercise of delegated legislative authority in some

other way. See Combs Oil Co. v. DepÓ t of Fin Servs., Div. of

State Fire Marshall , Case No. 11 - 3627RP, FO at 14 ( F la . DOAH

Mar. 9, 2012). The petitioner must meet its burden by offering

competent, substantial evidence that would support the

objections .

32 . Favero met its burden of going forward, so the burden

shifts to the agency, which must demonstrate by way of a

preponderance of the evidence that the pro posed rule is not

invalid . § 120.5 6 ( 2 ) (a) , Fla. Stat. The Department must prove

that despite FaveroÓs objections, the rule nonetheless is not an

invalid exercise of delegated legislative authority. See

s ection 120.52(8), which states:

(8) ÐInvalid exercise of delegated

legislative authorityÑ means action that

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or existing rule is an invalid

exercise of delegated legislative authority

if any one of the f ollowing applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54 (3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54 (3)(a)1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrationa l; or

(f) The rule imposes regulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objectives.

A grant of ru lemaking authority is

necessary but not sufficient to allow an

agency to adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

auth ority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agencyÓs

class of powers and duties, nor shall an

agency have the authority to implement

statutory p rovisions setting forth general

legislative intent or policy. Statutory

language g ranting rulemaking authority

or generally describing the powers and

functions of an agency shall be construed

to extend no further than implementing or

interpreting the spec ific powers and duties

conferred by the enabling statute.

33 . In this case, Favero an d Mecca expressed concerns

with how the Proposed Rule impleme nt s section 381.986(8) . The

Departmen tÓs interpretation of the statute it is charged wi th

administering is entitled to great deference. Verizon Fla.,

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

Telecomms., Inc. v. Johnson , 708 So. 2d 594, 596 (F la. 1998).

That deference is given notwithstanding whet h er other viable or

reasonable interpretations exist. Atl antic 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). So long as the agency interprets the statute in a

permissible way, that interpretation will prevail over other,

even perhaps preferable, interpretations. Humhosco, Inc. v.

DepÓ t of Health and Rehab. S e rvs. , 476 So. 2d 258, 26 1 (Fla. 1st

DCA 1985). So long as the agencyÓs interpretation is within the

range of permissible interpretations, it must stand (unless

clearly erroneous). Pan Am. World Airways, Inc. v. Fla. Pub.

Serv. CommÓn. , 427 So. 2d 716 (Fla. 1983).

34 . In this instance, the Department interprets the

statutory language concerning Ðfacility or facilitiesÑ to

include Ðproperty.Ñ It is impossible to reconcile that

interpretation, especially in light of the fact the Legislature

contemplated conversion of the facilities. The DepartmentÓs

interpretation is hereby rejected as being outside the range of

permissible interpretations. See Cleveland v. Fla. DepÓt of

Child. & Fams. , 868 So. 2d 1227 (Fla. 1st DCA 2004) .

35 . The test is whether the agencyÓs proposed rule

properly implements specific laws. See § 120.52 (8)(f) , Fla.

Stat . The Preference Statute specifically provided a

preferenc es for us ing or convert ing citrus facilities, not

properties. The Proposed Rule does not implement that specific

provision of the law.

36 . As to the scoring system utilized by the Depar tment

in evaluating competing applicants, the Department proved

that its scoring rubric was reasonably effective in making a

determination as to competing applications. Though perhaps not

the best possible method for scoring applications, it is an

acceptable process.

37 . In the instant matter, Favero proved , by a

prepon derance of evidence, that the Proposed Rule is an invalid

exercise of delegated l egislative authority . The Department did

not persuasively rebut that assertion. The Proposed Rule is

therefore declared invalid.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby ORDERED that:

Proposed Florida Administrative Code Rule 64 - 4.002 is an

invalid exercise of delegated legislative authority.

Pursuant to section 120.595(2), Florida Statutes,

jurisdiction is reserved in order to consider requests for

attorneyÓs fees and costs.

DONE AND ORDERED this 6 th day of August , 2018 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

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 6 th day of August, 2018

COPIES FURNISHED:

Sean n M. Frazier, Esquire

Parker, Hudson, Rainer & Dobbs, LLP

Suite 750

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Nichole Chere Geary, General Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed )

Marc Ito, Esquire

Parker Hudson Rainer & Dobbs, LLP

Suite 750

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Eduardo S. Lombard, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

(eServed)

Me gan S. Reynolds, Esquire

Vezina Lawrence & Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

(eServed)

William Robert Vezina, III, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

(eServed)

Mi chael Jovane Williams, Esquire

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Glenn Thomas Burhans, Esquire

Stearns Weaver Miller Weissler

Alhadeff & Sitterson

Suite 700

106 East College Avenue

Tallahassee, Florida 32301

(eServed)

Gigi Rollini, Esquire

Stearns Weaver Miller Weissler

Alhadeff & Sitterson

Suite 700

106 East College Avenue

Tallahassee, Florida 32301

(eServed)

Ernest Reddick, Program Administrator

Anya Grosenbaugh

Florida Admi nistrative Code & Register

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Admin istrative Proced ure Committee

Room 680, Pepper Building

111 West Madison Street

Tal lahassee, Florida 32399 - 1400

(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

Statutes. Review proceedings are governed by the Florid a Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

t he notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.