19-001035F Louis Del Favero Orchids, Inc. vs. Florida Department Of Health, Office Of Compassionate Use Status: Closed DOAH Final Order on Wednesday, April 28, 2021.

Summary: Respondent failed to demonstrate that its deviation from the statutory language was substantially justified or that special circumstances exist which would make an award of fees unjust.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L OUIS D EL F AVERO O RCHIDS , I NC . ,

Petitioner ,

vs. Case No. 19 - 1035F

F LORIDA D EPARTMENT OF H EALTH ,

O FFICE OF C OMPASSIONATE U SE ,

Respondent .

/

A MENDED F INAL O RDER ON R EMAND

Louis Del Favero Orchids , Inc. ( Ñ Del Favero Ò ) , filed a Ñ Petition

Challenging Validity of Proposed Rule 64 - 4.002 Ò on June 1 , 2018 , seeking a

determination that the Florida Department of Health , Office o f

Compassionate Use Ô s ( Ñ the Department Ò ) , Proposed Rule 64 - 4.002 ( Ñ the

Proposed Rule Ò ) was an invalid exercise of delegated legislative authority.

After a final hearing on July 2 , 2018 , Administrative Law Judge ( Ñ ALJ Ò )

Bruce McKibben issued a Final Order o n August 6 , 2018 , concluding that the

Proposed Rule was an invalid exercise of delegated legislative authority.

Del Favero then filed a Ñ Motion for Section 120.595(2) Attorneys Ô Fees Ò on

September 5 , 2018 , and the case was ultimately transferred to the

u ndersigned on August 16 , 2019. The undersigned issued a Final Order ( Ñ the

Final Order Ò ) on December 5 , 2019 , ruling that Del Favero was entitled to an

award of attorneys Ô fees and costs pursuant to section 120.595(2) , Florida

Statutes (2017).

The Departm ent appealed the Final Order , and the First District Court of

Appeal issued an Opinion on February 17 , 2021 , reversing the Final Order

and remanding Ñ with instructions to enter an order denying Del Favero Ô s

motion for fees and costs. Ò The Mandate associate d with the aforementioned

opinion issued on April 20 , 2021.

In accord with the First District Court of Appeals Ô Mandate , Del Favero Ô s

Ñ Motion for Section 120.595(2) Attorneys Ô Fees Ò is D ENIED .

D ONE A ND O RDERED this 28th day of April, 2021 , in Tallahas see , Leon

County , Florida.

S

G. W. C HISENHALL

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee , Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative H earings

this 28th day of April, 2021 .

C OPIES F URNISHED :

Glenn Thomas Burhans , Esquire Seann M. Frazier , Esquire

Stearns , Weaver , Miller , Weissler , Alhadeff Parker , Hudson , Rainer & Dobbs , LLP

& Sitterson Suite 750

Suite 700 215 South Monroe Street

106 East College Avenue Tallahassee , Florida 32301

Tallahassee , Florida 32301

Marc Ito , Esquire

Nichole Chere Geary , General Counsel Parker Hudson Rainer & Dobbs , LLP

Department o f Health Suite 750

Bin A - 02 215 South Monroe Street

4052 Bald Cypress Way Tallaha ssee , Florida 32301

Tallahassee , Florida 32399

Eduardo S. Lombard , Esquire Gigi Rollini , Esquire

Radey Law Firm , P.A. Stearns Weaver Miller

Suite 200 Suite 700

301 South Bronough Street 106 East College Avenue

Tallahassee , Florida 32301 Tallahassee , Florida 32301

Louise Wilhite - St Laurent , General Michael Jovane Williams , Esquire

Counsel Department of Health

Department of Health Bin C - 65

4052 Ba ld Cypress Way , Bin A - 02 4052 Bald Cypress Way

Tallahassee , Florida 32399 Tallahassee , Florida 32399

Scott Rivkees, M.D., State Surgeon General Angela D. Miles , Esquire

Department of Health Radey Thomas Yon & Clark , P.A.

4052 Bald Cypress Way, Bin A00 Suite 200

Tallahassee, Florida 32399 - 1701 301 South Bronough Street

Tallahassee , Florida 32301

Wanda Young, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

N OTICE O F R IGHT T O J UDICIAL R EVIEW

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 Florida 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 wi thin 30 days of

rendition of the order to be reviewed , and a copy of the notice , accompanied

by any filing fees prescribed by law , with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.