21-002707RE Florida State Conference Of Naacp; Florida Student Power Network; J. W. By And Through Her Next Friend John Walsh; S. W. By And Through Her Next Friend John Walsh; John Walsh In His Individual Capacity; Z. L. By And Through His Next Friend Tera Thaddies; vs. State Of Florida, Department Of Health Status: Closed DOAH Final Order on Monday, September 20, 2021.

Summary: Petitioners? rule challenge petition is dismissed because Petitioners lack the ?injury in fact? necessary to challenge the emergency rule.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

T HE S CHOOL B OARD OF B ROWARD C OUNTY ,

F LORIDA , T HE S CHOOL B OARD OF A LACHUA

C OUNTY , F LORIDA , A ND T HE S CHOOL

B OARD OF O RANGE C OUNTY , F LORIDA ,

Petitioners ,

vs. Case No. 21 - 2696RE

S TATE OF F LORIDA , D EPARTMENT OF

H EALTH ,

Respondent .

/

S CHOOL B OARD OF M IAMI - D ADE C OUNTY ,

F LORIDA ,

Petitioner ,

vs. Case No. 21 - 2697RE

F LORIDA D EPARTMENT OF H EALTH ,

Respondent .

/

F LORIDA S TATE C ONFERENCE OF N AACP ;

F LORIDA S TUDENT P OWER N ETWORK ; J. W.

B Y A ND T HROUGH H ER N EXT F RIEND J OHN

W ALSH ; S. W. B Y A ND T HROUGH H ER N EXT

F RIEND J OHN W ALSH ; J OHN W ALSH I N H IS

I NDIVIDUAL C APACITY ; Z. L. B Y A ND

T HROUGH H IS N EXT F RIEND T ERA

T HADDIES ,

Petitioners ,

vs. Case No. 21 - 2707RE

F LORIDA D EPARTMENT OF H EALTH ,

Respondent .

/

S CHOOL B OARD OF L EON C OUNTY ,

F LORIDA , A ND R OCKY H ANNA , A S

S UPERINTENDENT , L EON C OUNTY

S CHOOLS ,

Petitioner s ,

vs. Case No. 21 - 2721RE

F LORIDA D EPARTMENT OF H EALTH ,

Respondent .

/

F INAL O RDER G RANTING R ESPONDENT Ô S M OTION T O D ISMISS THE NAACP

P ETITIONERS Ô R ULE C HALLENGE

This cause came before the undersigned on RespondentÔs Motion to Dismiss for

Lack of Jurisdiction directed to Petitioners in NAACP, et al. (hereafter the NAACP

Petitioners) , filed September 14, 2021. Respondent contends that the NAACP

Petitioners (consisting of two associations and individuals from five separate

families) lack standing to challenge the emergency rule, and that the Division of

Administrative Hearings lacks jurisdiction to consider their challenge to the subject

emergency rule for this reason . Upon consideration of RespondentÔs motion and

the NAACP PetitionersÔ response, and RespondentÔs reply, the undersigned

concludes that the NAACP Petitioners lack standing to challenge emergency

rule 64DER21 - 12.

The Law on Standing

To challenge a rule, a party must be Ñsubstantially affe ctedÒ by it. § 120.56(1)(a),

Fla. Stat. In Jacoby v. Florida Board of Medicine , 917 So. 2d 358, 360 (Fla. 1st DCA

2005), the court explained that in order to establish that someone is Ñsubstantially

affectedÒ by a rule, the person or entity must demonstrate: Ñ(1) that the rule or

policy will result in a real and immediate injury in fact, and (2) that the alleged

interest is within the zone of interest to be protected or regulated.Ò A hypothetical

future injury is insuffi cient to confer standing . Fla. DepÔt of Offender Rehab. v.

Jerry , 353 So. 2d 1230, 1236 (Fla. 1st DCA 1978) , cert denied , 359 So. 2d 1215 (Fla.

1978) ( disapproved on other grounds by Fla. Home Builders AssÔn v. DepÔt of Labor

& Emp. Sec. , 412 So. 2d 351 (F la. 1982)) .

In Jerry , the court refused standing to a prison inmate to challenge a rule that

placed inmates in disciplinary confinement for committing assault . Id . The inmate

was previously found guilty of assault, p laced in disciplinary confinement and then

released. Id . at 1231. The court rejected the inmateÔs argument that he would be

injured by the rule in the future if he was charged with assault again, stating:

Whether this will occur, however, is a matter of speculation

and conjecture and we will not presume that Jerry, having

once committed an assault while in custody, will do so

again. To so presume would result only in illusory

speculation which is hardly supportive of issues of

Ñsufficient immediacy and realityÒ necessary to confer

standin g.

Id . at 1236.

In Department of Health and Rehabilitative Services v. Alice P. , 367 So. 2d 1045

(Fla. 1st DCA 1979) , the agency proposed rules that denied Medicaid funding for

elective abortions. The hearing officer below found women of child - bearing age who

received Medicaid had standing to challenge the rules. The First District applied

the standing test articulated in Jerry to deny standing to a woman who was not

pregnant. The court stated that a pregnant Medicaid recipient and a physician

w hose practice would decline from reduced Medicaid funding of abortions were

substantially affected. However, these rulings were dicta because the court

dismissed their petitions as untimely filed. Id . at 1051.

In Ward v. Board of Trustees of the Internal Improvement Trust Fund , 651 So. 2d

1236, 1237 (Fla. 4th DCA 1995), the court explained that a sufficient and immediate

injury exists when a person or entity will be subject to a penalty by a proposed rule.

In Ward , an engineer argued that complying with th e rules relating to the

construction of docks on aquatic preserves would create unsafe docks, which would

subject him to discipline under the engineering licensing statutes. The court agreed

that he would be subject to discipline and, thus, was substantial ly affected by the

rule.

I n Lanoue v. Florida Department of Law Enforcement , 751 So. 2d 94, 98 (Fla. 1st

DCA 1999), the court found that the party who failed a breathalyzer test could

challenge the rules providing specifications for the breathalyzer test because he had

been charged with driving under the influence, and if he were to be found guilty, he

would be subject to penalties.

In NAACP v. Board of Regents , 822 So. 2d 1 (Fla. 1st DCA 2002), the board

proposed rule amendments restricting the use of affirmative action based on race

and gender for certain university admissions. A civil rights organization, a tenth -

grade African - American student, and the student Ô s mother challenged the rule

amendments. The student hoped to attend a university in the Sta te University

System and major in computer science or engineering. The Administrative Law

Judge determined that the challengers were substantially affected. The First

District reversed on that ground, finding that the NAACP had failed to prove that

the cha llenged rule amendments would cause a real and sufficiently immediate

injury to any of its members . Focusing on the student, the court stated that, at his

current rate of academic progress, he would qualify for university admission

regardless of the impact of the challenged rule amendments. Because he had two

more years until admission, in any event, any claimed injury could not be real and

sufficiently immediate, but would rest on Ñ rank speculation. Ò Id . at 7. Judge

Browning dissented, stating:

[I]n my ju dgment, the crucial factor is how one weighs the

impact of the proposed rules on African Ï Americans Ô

admission rights to the SUS, as compared to their rights

under the repealed affirmative action programs. My

ÑscalesÒ indicate African Ï American students Ô adm ission to

the SUS under legally established affirmative action

programs cannot be repealed by agency rules without

giving those covered by such programs the right to

challenge the repeal, because existing case law indicates

they are Ñsubstantially affected Ò for rule challenge

purposes. On the merits, Appellants might not be entitled

to relief. However, they have the interest required as

Ñsubstantially affected partiesÒ to challenge the proposed

rules Ô validity.

Id . at 14.

Upon rehearing, the First Distri ct certified the question of petitioners Ô standing

as one of great public importance. Id. Ultimately, the Florida Supreme Court

quashed the opinion of the First District and held that the NAACP, the student,

and his mother were all substantially affected. NAACP v. Board of Regents , 863

So. 2d 294 (Fla. 2003). In so holding, the Florida Supreme Court stated that it

agreed with Judge Browning's analysis in his dissent . Id . at 299. T he c ourt also

stated that an association has standing to challenge a rule tha t substantially affects

a substantial number of the association Ô s members , citing Florida Home Builders

Ass ociation v. Department of Labor & Employment Security, 412 So. 2d 351

(Fla.1982).

Respondent rel ies on DeSantis v. Florida Education Association , 306 So. 3d

1202, 1214 (Fla. 1st DCA 2020), wherein the First District addressed whether

parents, students , teachers and related associations had standing to challenge a n

e mergency o rder that they claimed required students and teachers to return to in -

per son school during the COVID - 19 pandemic . The challengersÔ alleged injury was

being forced to return to school where they had the possibility of contracting and

transmitting COVID - 19. Id . at 1208. Florida Education Association is not a rule

challenge case, but it analyze s whether the challengers in that case alleged a

sufficient Ñ injury in fact Ò to confer standing . T he First District denied standing to

all, noting that the challenged emergency order did not require teachers and

students to return to the clas sroom. Id . at 1214. Significantly, t he court also stated

that Ña ny injury to a student or teacher from being forced to return to the classroom

[during the COVID - 19 pandemic] is purely hypothetical. Ò Fla. Educ. AssÔn , 306 So.

3d at 1214 .

To say that it is a challenge to harmonize these standing cases would be an

understatement. The First District has acknowledged as much :

The federal law of standing is complex, inconsistent, and

unreliable. 4 Davis, Administrative Law Treatise, § 24:1

(Second Edition, 198 3). The Florida law of standing

borrows much of its underpinnings from the federal law

and thus arguably may be said to be subject to the same

vagaries.

Montgomery v. DepÔt of Health & Rehab . Serv s. , 468 So. 2d 1014 , 1016 n.4 (Fla. 1st

DCA 1985) .

Analysis

Turning now to the c ontroversy at hand, the emergency rule does not require a

student or parent to do anything. Rather, the NAACP Petitioners challenge the rule

because of the standards it imposes on other entities, FloridaÔs school districts . Th e

derivative injury the NAACP Petitioners claim here ( the alleged increased risk of

contract ing and transmitting COVID - 19 in schools) is not as concrete or certain as

the injury that resulted from the affirmative action rules challenged in NAACP .

That is, there wa s little doubt the rules restricting affirmative action would result

in some African - Americans being denied admission to the state university of their

choice.

The possibility that student s will contract and transmit COVID - 19 because of

the emergency rule is a far more speculative , future injury . A s Respondent points

out, the NAACP Petitioners rely on a chain of logic and multiple inferences to get to

an injury in fact : (1) that the school district would require masks without an

unrestricted opt - out but for the emergency rule 1 ; (2) that one or more students will

opt out for non - medical reasons ; (3) that one or more of the students who opted out

for non - medical reasons will contract C OVID - 19 and attend school despite having

contrac ted C OVID - 19; and (4) that the unmasked student who opted out will

transmit C OVID - 19 to one or more of the student Petitioners (or in the case of the

association Petitioners, to a substantial number of their members). The NAACP

Petitioners have alleged tha t online learning is either unavailable to them or

1 According to the NAACP Petition, two of the families identified as Petitioners have children who

attend schools w h ere masks are not required. NAACP Petition , ¶¶ 29 and 52.

inadequate. But , like the emergency order challenged in Florida Education

Association , the emergency rule places no limitation on online learning.

Standing should not be determined preliminarily if it is dependent upon

unresolved disputed issues of fact. Anthony Abraham Chevrolet Co. v. Collection

Chevrolet, Inc. , 533 So. 2d 821, 824 (Fla. 1st DCA 1988 ). No evidence has been

presented on whether the portions of the emergency rule challenged here make it

more likely that the student Petitioners will contract and transmit COVID - 19 , and

no such finding has been made . A ll well - pleaded facts in the NAACP Petition have

been accepted as true. That said, all of the NAACP PetitionersÔ allegations can be

distilled down to one alleged injury : that students are more likely to contract and

transmit COVID - 19 in school . T he First District found this injury too speculative to

confer standing in Florida Education Association as a matter of la w . Florida

Education Association is the most salient guidance on the subject at ha nd and is

followed here for that reason .

The application of Fl orida Education Association here also strikes the right

balance. The line on standing must be drawn somewhere. If standing requirements

were relaxed to allow third parties to challenge the validity of rules that regulate

other s due to safety concerns Ð however legitimate and provable Ð there would be no

logical basis to, for example, prohibit the p ublic from challenging rules reg u lating

the practice of medicine, dentistry, or engineering under the theory that the

standards are insufficient to keep them safe. The Ñinjury in factÒ test, if applied

properly in this context , would prevent a patient or c lient from initiating such a

challenge because the prospect that the individual may become sick or injured

because of an inadequate standard is too speculative . But that does not mean that

rules establishing standard s for the practice of medicine, dentistr y , or engineering

cannot be challenged ; r ather, the Ñinjury in factÒ test Ð while placing a reasonable

limitation on standing Ð allows the profession al s whose conduct is directly regulated

by the rules to challenge them .

Likew ise here, t h e decision to deny standing to the NAACP Petitioners does

not shield the emergency rule from scrutiny. For the reasons explained in detail in

the Order Denying RespondentÔs Motion to Dismiss the School Board Petitions for

Lack of Jurisdiction , t he school board Petitioners can move forward with their

challenge over the standing objection raised by Respondent.

Conclusion

The individual NAACP Petitioners lack standing to challenge the emergency

rule in this case as a matter of law because they cannot satisfy th e injury in fact

test . The associations lack standing for the same reason.

Based on the foregoing, it is

ORDERED that:

1. Case No. 21 - 2707RE is hereby severed from this consolidated proceeding.

2. RespondentÔs Motion to Dismiss for Lack of Jurisdiction directed to

Petitioners in NAACP, et al. , is GRANTED.

D ONE A ND O RDERED this 20th day of September , 2021 , in Tallahassee, Leon

County, Florida.

S

B RIAN A. N EWMAN

Deputy Chief 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 Hearings

this 2 0th day of September , 2021.

C OPIES F URNISHED :

Louise Wilhite - St Laurent, General Counsel David C. Ashburn, Esquire

Department of Health Greenberg Traurig, P.A.

4052 Bald Cypress Way , Bin C - 65 101 East College Avenue

Tallahassee, Florida 32399 Post Office Drawer 1838

Tallahassee, Florida 32301

Wendy Lecker

Education Law Center Mark Herron, Esquire

60 Park Place , Suite 300 Messer, Caparello, P.A.

Newark, New Jersey 07102 2618 Centennial Place

Post Office Box 15579

Bacardi Jackson, Esquire Tallahassee, Florida 32317

Southern Poverty Law Center

Post Office Box 12463 Jessica Levin

Miami, Florida 33101 Education Law Center

60 Park Place , Suite 300

Samuel Boyd, Esquire Newark, New Jersey 07102

Southern Poverty Law C enter

Post Office Box 12463

Miami, Florida 33101

Joshua Byrne Spector, Esquire Joseph Brennan Donnelly, Esquire

Law Offices of Joshua Spector, P.A. Messer Caparello, P.A.

14 Northeast 1st Avenue , Suite 1100 2618 Centennial Place

Miami, Florida 33132 Tallahassee, Florida 32308

Jamie Alan Cole, Esquire Evian Lynn White De Leon, Esquire

Weiss Serota Helfman Southern Poverty Law Center

Cole & Bierman, P.L. Post Office Box 12463

200 East Broward Boulevard , Suite 1900 Miami, Florida 33101

Fort Lauderdale, Florida 33301

Edward George Guedes, Esquire

Richard Bradlee Rosengarten, Esquire Weiss Serota Helfman

Weiss Serota Cole & Bierman, P.L.

2525 Ponce de Leon Boulevard 2525 Ponce de Leon Boulevard , Suite 700

Miami, Florida 33134 Coral Gables, Florida 33134

Eduardo S. Lombard, Esquire John K. Londot, Esquire

Radey Law Firm, P.A. Greenberg Traurig, P.A.

301 South Bronough Street , Suite 200 101 East College Avenue

Tallahassee, Florida 32301 Post Office Drawer 1838

Tallahassee, Florida 32302

Melissa Hedrick, Esquire

Radey Law Firm, P.A. Angela D. Miles, Esquire

301 South Bronough Street Radey Thomas Yon & Clark, P.A.

Tallahassee, Florida 32310 301 South Bronough Street , Suite 200

Tallahassee, Florida 32301

Ken Plante, Coordinator

Joint Administrative Procedures Anya Grosenbaugh, Program

Committee Administrator

Room 680, Pepper Building Margaret Swain

111 West Madison Street Florida Administrative Code & Register

Tallahassee, Florida 32399 - 1400 Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

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 ori ginal 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 the notice, accompanied by any filing fees prescribed by law, with the

clerk of th e 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.