21-003066RE School Board Of Miami-Dade County, Florida; Leon County School Board; Rocky Hanna, As Superintendent Of Leon County Schools; Duval County School Board; Orange County School Board; School Board Of Broward County, Florida; And School Board Of Alachua County vs. Department Of Health Status: Closed DOAH Final Order on Friday, November 5, 2021.

Summary: Petitioners failed to prove that the Emergency Rule is an invalid exercise of delegated legislative authority.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

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

F LORIDA ; L EON C OUNTY S CHOOL B OARD ;

R OCKY H ANNA , A S S UPERINTENDENT OF

L EON C OUNTY S CHOOLS ; D UVAL C OUNTY

S CHOOL B OARD ; O RANGE C OUNTY Case No. 21 - 3066RE

S CHOOL B OARD ; S CHOOL B OARD OF

B ROWA RD C OUNTY , F LORIDA ; A ND

S CHOOL B OARD OF A LACHUA C OUNTY ,

Petitioners ,

vs.

D EPARTMENT OF H EALTH ,

Respondent .

/

F INAL O RDER

The final hearing in this mat ter was conducted before Deputy Chief Judge

Brian A. Newman of the Division of Administrative Hearings ( Ñ DOAH Ò ),

pursuant to sections 120.569 , 120.57(1) and 120.5 6 ( 5 ), Florida Statutes

( 2021 ), on October 21 and 22, 2021 , in Tallahassee , Florida.

A PPEARANC ES

For Petitioner s : Jamie Alan Cole, Esquire

Weiss Serota Helfman Cole & Bierman, P.L.

200 East Broward Boulevard , Suite 1900

Fort Lauderdale, Florida 33301

Edward George Guedes, Esquire

Richard Bradlee Rosengarten, Esquire

Weiss Serota Helfman Cole & Bierman, P.L.

2525 Ponce de Leon Boulevard , Suite 700

Coral Gables, Florida 33134

For Respondent: Louise Wilhite - St Laurent, General Counsel

Department of Health

4052 Bald Cypress Way , Bin A - 02

Tallahassee, Florida 32399

Joseph M. Goldstein, Esquire

Eric M. Yesner, Esquire

Shutts & Bowen, LLP

200 East Broward Boulevard , Suite 2100

Fort Lauderdale, Florida 33301

Jason B. Gonzalez, Esquire

Amber S toner Nunnally, Esquire

Shutts & Bowen, LLP

215 South Monroe Street , Suite 804

Tallahassee, Florida 32301

Elise M. Engle, Esquire

Shutts & Bowen, LLP

4301 West Boy Scout Boulevard

Tampa, Florida 33607

S TATEMENT O F T HE I SSUE

The issue s to be determined are whether certain provisions of Emergency

Rule 64DER21 - 15 ( the ÑEmergency RuleÒ) are invalid exercise s of delegated

legislative authority .

P RELIMINARY S TATEMENT

On October 6, 2021, Petitioners filed a petition t o challeng e two provisions

of the Emergency Rule (c ollectively referred to here in after as the Ñ Opt - Out Ò

provisions) . Specifically, Petitioners challenge the second phrase of

subsection (1)(d) of the Emergency Rule: Ñhowever, the school must allow for

a pa rent or legal guardian of the student to opt the student out of wearing a

face covering or mask at the parent or legal guardianÔs sole discretionÒ (the

ÑMask Opt - Out Ò provision ). Petitioners also challenge subsection (3)(a)1 . of

the Emergency Rule, which p rovides that Ñ[p]arents or legal guardians of

students who are known to have been in direct contact with an individual

who received a positive diagnostic test for COVID - 19Ò are given the sole

discretion to allow their child (without any quarantine period o r consultation

with the school) Ñto attend school, school - sponsored activities, or be on school

property, without restrictions or disparate treatment, so long as the student

remains asymptomatic ... Ò (the ÑQuarantine Opt - Out Ò provision ).

T he parties fil ed a Second Amended J oint P re - hearing S tipulation in

which they stipulated to certain facts and law. To the extent relevant, the

partiesÔ stipulated facts and law have been incorporated below.

At the final hearing, Petitioners presented testimony from Cas sandra Gail

Pasley (deposition excerpts), Lisa Gwynn, D.O., and Dr. Aileen Marty.

Respondent presented testimony from Ms. Pasley, Jacob Oliva, and

Dr. Jayanta Bhattacharya. Joint Exhibits 1 through 26, 33 through 43, and

45 through 53 were admitted into ev idence. PetitionersÔ Exhibits 3 through 8,

9 (pages 9.5 through 9.94) and 10 . 1 were admitted into evidence.

RespondentÔs Exhibits 9 , 10, and 11.3 through 11.5, and 11.7 through 11.9

were admitted into evidence.

The parties timely filed Proposed Final Ord ers, which have been

considered in preparing this Final Order.

F INDINGS O F F ACT

Parties

1. The Petitioner School Boards are the governing bodies of the school

districts of Miami - Dade, Leon, Duval, Orange, Broward, and Alachua

Counties. Petitioner Rocky H anna is the Superintendent of the Leon County

School Board. Petitioners are subject to and must comply with the

Emergency Rule.

2. The Department of Education has taken enforcement action against the

Petitioner School Boards for non - compliance with the Eme rgency Rule. The

Department of Education has imposed financial penalties for non - compliance

with the Emergency Rule.

3. Respondent Florida Department of Health is the state agency with the

authority to adopt rules governing the control of preventable commu nicable

diseases in public schools pursuant to section 1003.22, Florida Statutes

(2021) . Section 1003.22 provides in pertinent part:

1003.22. School - entry health examinations;

immunization against communicable diseases;

exemptions; duties of Department of Health .

* * *

(3) The Department of Health may adopt rules

necessary to administer and enforce this section.

The Department of Health, after consultation with

the Department of Education, shall adopt rules

governing the immunization of children again st, the

testing for, and the control of preventable

communicable diseases. The rules must include

procedures for exempting a child from

immunization requirements. Immunizations shall

be required for poliomyelitis, diphtheria, rubeola,

rubella, pertussis, m umps, tetanus, and other

communicable diseases as determined by the rules

of the Department of Health. The manner and

frequency of administration of the immunization or

testing shall conform to recognized standards of

medical practice. The Department of He alth shall

supervise and secure the enforcement of the

required immunization. Immunizations required by

this section shall be available at no cost from the

county health departments . (emphasis added).

4 . The Emergency Rule Ð adopted by Respondent on Septem ber 22, 2021 Ð

provides:

64DER21 - 15 Protocols for Controlling

COVID - 19 in School Settings

(1) GENERAL PROTOCOLS AND DEFINITION.

The following procedures shall be instituted to

govern the control of COVID - 19 in public schools:

(a) Schools will encourage r outine cleaning of

classrooms and high - traffic areas.

(b) Students will be encouraged to practice routine

handwashing throughout the day.

(c) Students will stay home if they are sick.

(d) Schools may adopt requirements for students to

wear masks or fac ial coverings as a mitigation

measure; however, the school must allow for a

parent or legal guardian of the student to opt the

student out of wearing a face covering or mask at

the parent or legal guardianÔs sole discretion.

(e) For purposes of this rule, Ñdirect contactÒ means

cumulative exposure for at least 15 minutes, within

six feet.

(2) PROTOCOLS FOR SYMPTOMATIC OR

COVID - 19 POSITIVE STUDENTS. Schools will

ensure students experiencing any symptoms

consistent with COVID - 19 or who have received a

posit ive diagnostic test for COVID - 19 shall not

attend school, school - sponsored activities, or be on

school property until:

(a) The student receives a negative diagnostic

COVID - 19 test and is asymptomatic; or

(b) Ten days have passed since the onset of

sympto ms or positive test result, the student has

had no fever for 24 hours and the studentÔs other

symptoms are improving; or

(c) The student receives written permission to

return to school from a medical doctor licensed

under chapter 458, an osteopathic physi cian

licensed under chapter 459, or an advanced

registered nurse practitioner licensed under

chapter 464.

(3) PROTOCOLS FOR STUDENTS WITH

EXPOSURE TO COVID - 19. Schools shall allow

parents or legal guardians the authority to choose

how their child receives education after having

direct contact with an individual that is positive for

COVID - 19:

(a) Parents or legal guardians of students who are

known to have been in direct contact with an

individual who received a positive diagnostic test

for COVID - 19 may ch oose one of the following

options:

1. Allow the student to attend school, school -

sponsored activities, or be on school property,

without restrictions or disparate treatment, so long

as the student remains asymptomatic; or

2. Quarantine the student for a period of time not

to exceed seven days from the date of last direct

contact with an individual that is positive for

COVID - 19.

(b) If a student becomes symptomatic following

direct contact with an individual that has

tested positive for COVID - 19, or test s positive for

COVID - 19, the procedures set forth in subsection

(2), above shall apply.

Rulemaking Authority 1003.22(3) FS. Law

Implemented 1003.22(3) FS. History Ï New 9 - 22 - 21.

5 . The Emergency Rule was adopted pursuant to the emergency

rulemaking proce dures found in section 120.54(4) . The Emergency Rule was

filed with the Department of State on September 22, 2021, and became

effective that same day. The Emergency Rule superseded and repealed

emergency rule 64DER21 - 12 that had been adopted on August 6, 2 021.

6. Section 120.54(4) provides in pertinent part :

(4) Emergency rules. --

(a) If an agency finds that an immediate danger to

the public health, safety, 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

protection 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

prior 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 emergency

rules, other than those of educational units or units

of government with jurisdiction 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 Administrative Register and

provided to the committee along with any material

incorporated by reference in the rules. The agency's

findings of imme diate danger, necessity, and

procedural fairness shall be judicially reviewable.

7 . Respondent cited the following facts in the preamble to the Emergency

Rule to justify emergency adoption:

SPECIFIC REASONS FOR FINDING AN

IMMEDIATE DANGER TO THE PUBL IC

HEALTH, SAFETY OR WELFARE: Because of an

increase in COVID - 19 infections, largely due to the

spread of the COVID - 19 delta variant, prior to the

beginning of the 2021 - 2022 school year, it is

imperative that state health and education

authorities continue to provide emergency guidance

to school districts concerning the governance of

COVID - 19 protocols in schools. In August 2021, all

public schools in Florida began the 2021 - 2022

school year with in - person learning available for all

students. The Department of Health adopted

Emergency Rule 64DER21 - 12 on August 6, 2021.

Since that time the Department has conducted a

review of data for cases of COVID - 19 positive

school - aged children and data for school - aged

children who have been in direct contact with a

COVID - 19 positive person. The Department

observed a large number of students who have been

required to quarantine for long periods of time,

resulting in the loss of hundreds of thousands of

days of in - person learning. In addition, the

Department observed no mean ingful difference in

the number of COVID - 19 cases in school - aged

children in counties where school districts have

imposed mask mandates. It is necessary to

minimize the amount of time students are removed

from in - person learning based solely on direct

cont act with an individual that is positive for

COVID - 19, to ensure parents and legal guardians

are allowed the flexibility to control the education

and health care decisions of their own children, and

to protect the fundamental rights of parents

guaranteed un der Florida law.

In order to permit students to continue in - person

learning, to minimize the detriment to students

and school personnel from the added burden of

recurrent removal of students, and to benefit the

overall welfare of students in Florida, it is

necessary to provide updated emergency guidance

to school districts concerning the governance of

COVID - 19 protocols in schools. This emergency

rule conforms to Executive Order Number 21 - 175,

which ordered the Florida Department of Health

and the Florid a Department of Education to ensure

safety protocols for controlling the spread of

COVID - 19 in schools that (1) do not violate

FloridiansÔ constitutional freedoms; (2) do not

violate parentsÔ rights under Florida law to make

health care decisions for their minor children; and

(3) protect children with disabilities or health

conditions who would be harmed by certain

protocols, such as face masking requirements. The

order directs that any COVID - 19 mitigation actions

taken by school districts comply with the P arentsÔ

Bill of Rights, and Ñprotect parentsÔ right to make

decisions regarding masking of their children in

relation to COVID - 19.Ò

Because of the importance of in - person learning to

educational, social, emotional and mental health,

and welfare, removing healthy students from the

classroom for lengthy quarantines should be

limited. Under Florida law, parents and legal

guardians have a fundamental right to direct the

upbringing, education, health care, and mental

health of their minor children and have the right to

make health care decisions for their minor children.

HB 241, Ch. 2021 - 199, Laws of Fla. Parents and

legal guardians are uniquely situated to

understand the health care, emotional, and

education needs of their minor children. In

furtherance of the Florida Department of HealthÔs

authority to adopt rules governing the control of

preventable communicable diseases Ð and because

students benefit from in - person learning Ð it is

necessary to immediately promulgate a rule

regarding COVID - 19 safety protocols th at protects

parentsÔ rights and to maximize the allowance of

in - person education for their children.

Unnecessarily removing students from in - person

learning poses a threat to the welfare of children,

including their social, emotional, and educational

devel opmental [sic], and is not necessary absent

illness.

REASON FOR CONCLUDING THAT THE

PROCEDURE IS FAIR UNDER THE

CIRCUMSTANCES: This emergency rule is

necessary in light of the unnecessary exclusion of

healthy students from in - person learning and the

urg ent need to provide updated COVID - 19

guidance to school districts. Given the evolving

nature of this novel disease and the potential for

adverse impacts on school children resulting from

the unnecessary exclusion of healthy children from

in - person learning , there is a need to issue an

immediately effective rule while the department

promulgates a permanent rule through the non -

emergency process.

Emergency rulemaking i s justified .

8 . At the final hearing, Cassandra Pasley, Chief of Staff for the Florida

Depa rtment of Health , testified that the immediate dangers to the public

health, safety , and welfare on September 22, 2021, were the level of

COVID - 19 circulating, the percentage of those COVID - 19 cases that were the

Delta variant , and a high level of student absenteeism. According to

Ms. Pasl e y, there were 100,000 COVID - 19 cases in circulation in August and

September, the highest number of cases Florida has seen. The vast majority

of those cases were caused by the D elta variant of the virus , which is more

tra nsmissible . Ms. Pasl e y added that the goal of the Emergency Rule was to

do no more than what is required to protect the public health and that

Respondent continually reviewed COVID - 19 case data to ensure the

COVID - 19 protocols adopted by the Eme rgency R ul e met that objective.

Ms. Pasl e y Ôs testimony was credible and is accepted.

9 . The statute authorizing the Emergency Rule requires Respondent to

consult with the Department of Education before adopting protocols

governing the control of preventable communic able diseases . Respondent

complied with this requirement.

10 . Department of Education Chancellor Jacob Oliva testified that

student s learn best in school. Scholastic p erformance during the pandemic

has declined statewide and excessive absenteeism due to C OVID - 19

quarantine protocols contributed to this decline. This concern prompted

Chancellor Oliva to send a letter to Ms. Pasl e y on September 21, 2021 , urging

Respondent to consider adopting COVID - 19 protocols t hat reduce the number

of students who miss sch ool because of quarantine. Chancellor OlivaÔs

testimony was credible and is accepted.

11 . Petitioners argue that no immediate public health emergency exists to

justify the Emergency Rule while simultaneously maintaining that the

Emergency Rule prevents the m from implementing more restrictive protocols

that are necessary to keep children safe. They also argue that any threat

from COVID - 19 was expected, so RespondentÔs protocols should have been

adopted months ago using non - emergency rulemaking procedures.

1 2 . COVID - 19 presents an immediate danger to the public health, safety

and welfare. The parties stipulate that COVID - 19 is a n infectious disease

caused by the SARS - CoV - 2 virus . COVID - 19 infections are preventable,

communicable diseases and, therefore, s ecti on 1003.22 requires Respondent

to adopt rules to establish protocols governing the control of COVID - 19.

Although the COVID - 19 pandemic has been with us since early 2020, the

p rotocols governing the control of COVID - 19 must be regularly re examined

and modif ied to adapt to ever changing COVID - 19 case data . The record

evidence is that Petitioners have done precisely that when adopting their own

school district COVID - 19 protocols .

13 . The Leon County School Board started the school year with a

mandatory mask r equirement with parental opt - outs . But after a week and a

half of school, Leon County changed its COVID - 19 protocols to eliminate the

parental opt - out for masks in grades K - 8. S uperintendent Rocky Hanna

testified that this change was made due to an uptick in COVID - 19 cases after

the start of the school year. More recently, the Leon County School Board

changed its protoc o ls again to reinstate the parental opt - out for masks for

grades K - 8 and to add a parental opt - out for quarantine. That protocol

change was effective on October 19, 2021. Mr. Hanna explained that the se

policy shifts were dictated by changing COVID - 19 data:

W e are constantly updating our website, sending

information out to parents to keep them abreast of

the changes, because there has been a l ot of

changes as we have adopted and adjusted to this

virus and how it affected our community here in

Leon County, we have pivoted and adjusted based

on data and information fr o m the CDC and the

Department of Health.

14 . The Duval County School Board star ted th is school year with a n

Ñemergency ruleÒ that strongly encouraged masks indoors with a parental

opt - out, but the parental opt - out was later removed by another Ñemergency

ruleÒ that was adopted on August 23, 2021. The Superintendent has been

authorized to suspend the emergency mask mandate the ÑminuteÒ certain

COVID - 19 metrics are achieved.

15 . The Alachua County School Board started th is school year requiring

masks with no parental opt - out, but that policy was recently changed to add

an exemption for h igh school students.

16 . The School Board of Broward County implemented a mandatory mask

requirement by Ñemergency rule , Ò but will revisit that policy as soon as the

vaccine percentage of Broward residents is above 67% (a metric already

achieved) and the COVID - 19 positivity rate is 3% or less for three consecutive

weeks.

17 . The School Board of Miami - Dade Ôs COVID - 19 policy empowers the

Superintendent to adjust procedures and protocols based on conditions in

their community. The School Board of Miami - Dade revised one or more of its

COVID - 19 policies on September 17, 2021, September 22, 2021, and again on

October 11, 2021.

18 . The Orange County School Board adopted an ÑemergencyÒ K - 12 face -

covering requirement with no parental opt - out for this school year . The policy

states that the school board will review the policy every 30 days and that the

Superintendent can end the face - covering requirement if levels of community

transmission drop to moderate transmission as defined by the CDC to be less

than 50 new ca ses per 100,000 people in the pre ceding seven days.

19 . Th ese policy pivots are not recited to criticize the school boards;

COVID - 19 policies should be revisited frequently and adapted to the latest

COVID - 19 case data. But Respondent must be just as nimbl e when adopting

statewide COVID - 19 protocols. The non - emergency rulemaking procedures

found in section 120.54 would prevent Respondent from doing that by rule .

20 . At a minimum, a proposed rule must be published at least 28 days

before it becomes effectiv e. § 120.54(3)(a)2. , Fla. Stat. If the validity of the

proposed rule is challenged at DOAH, it can n ot be adopted until the

A dministrative L aw J udge ( Ñ ALJ Ò ) rules that it is valid. § 120.56(2)(b) , Fla.

Stat . Although rule challenge proceedings at DOAH are e xpedited, a rule

challenge will typically add a two - month delay to the adoption of a rule that

is found to be valid. See § 120.56(1)(c) and (d) , Fla. Stat. (requiring the final

hearing on a proposed rule challenge to commence within 30 days of

assignment o f the ALJ and a final order to be issued within 30 days of the

conclusion of the final hearing).

21 . One to t hree months is too long to adopt COVID - 19 protocols that are

informed by changing COVID - 19 case data. Adoption of the Emergency Rule ,

pursuant to section 120.54( 4 ) , is justified because COVID - 19 is an immediate

danger to the public health, safety, or welfare. For the reasons that follow,

t he action taken pursuant to the Emergency Rule was only that action

necessary to protect the public interest ( th at is to keep children safe and

learning in school ) . Although there was no hearing on the Emergency Rule

before it was adopted, the process is fair under the circumstances because

COVID - 19 presents an immediate danger to the public health , safety and

welfa re and because COVID - 19 protocols must ad a pt to changing COVID - 19

case data .

The Emergency Rule is not unsafe for children .

22 . COVID - 19 infections can be extremely dangerous , b ut the risk of death

and serious illness lies overwhelming with older people.

23 . According to RespondentÔs COVID - 19 Weekly Situation Report for

October 8, 2021 , through October 14, 2021 (the Ñ COVID - 19 Situation

ReportÒ) , the COVID - 19 case fatality rate in Florida for people aged 65 and

older is 9.3%. For people aged 60 to 64, the c ase fatality is 2.4%.

24 . C hildren have died from COVID - 19, but that outcome is extremely

rare. The COVID - 19 Situation Report case fatality rate f or people under 16 ,

and for people aged 16 to 29 , is 0.0%. This data was submitted jointly by

Petitioners and Respondent and its accuracy w as not questioned. E xperts

called by both sides support the obvious conclusion to be drawn from this

data.

25 . Dr. Lisa Gwynn, a pediatrician called by Petitioners, acknowledged

that COVID - 19 infection poses less of a mortality risk for children than

seasonal influenza.

26 . Respondent presented expert opinion testimony from Jay anta

Bhattacharya, M.D., Professor of Health Policy at the Stanford University

School of Medicine. Dr. Bhattacharya earned his M.D. and Ph.D. in

economic s from Stanford University. Dr. Bhattacharya is not a practicing

physician, he is a researcher. He has published 154 peer - reviewed articles on

infectious disease epidemiology and health policy . Six of his peer - reviewed

articles relate to COVID - 19 research. Dr. Bhattacharya testified that f or

children up to 19 years old, Ña child infected with COVID survives 99.997% of

the time.Ò This testimony is credible and is consistent with the Florida

COVID - 19 case fatality rate data jointly offered by the parties.

27 . The following additional opinions presented by Dr. Bhattacharya were

well - supported and credible : (1) Children are unlikely to suffer serious side

effects from COVID - 19 despite the D elta variant ; (2) the spread of COVID - 19

from asymptomatic people is rare ; and (3) children are inefficient

transmitters of the SARS - CoV - 2 virus .

28 . RespondentÔs agency representative testified that properly worn and

properly fitted masks can help prevent or reduce the spread of COVID - 19.

That testimony is accepted here and is binding on Respondent. In addition,

wearing a mask in school is safe for children. But while masks in school s may

lower the risk of transmission of COVID - 19, and are safe for children to wear ,

it was not proven that masks provide any significant protectio n to c hildren

against COVID - 19 , given that children already have a 0.0% COVID - 19 case

fatality rate and are very unlikely to suffer serious COVID - 19 side effects if

they are infected .

29 . As to whether the Emergency Rule O pt - O ut provisions make it more

li kely that children will spread COVID - 19 to others, that too was unproven.

T he Emergency Rule requires sick children to stay home. I t is extremely rare

for asymptomatic people to spread COVID - 19 and children are otherwise

inefficient transmitters of the SAR S - CoV - 2 virus . As such, it is axiomatic that

forcing asymptomatic children to wear masks in schools provides no

significant barrier to the spread of COVID - 19 .

30 . This logical inference is supported by data comparing COVID - 19 cases

in Florida schools f or the 2020 Ï 2021 school year . Dr. Bhattacharya cited a

case study comparing COVID - 19 case rates for school locations in Florida

that: required mask s for students and staff, required mask s for staff only, or

did not require masks for anyone. The study found no statistically significant

differences in case rates among the three groups. Dr. Bhattacharya testified

that Ñ I think from the Florida experience of last year thereÔs no correlation

between masking requirements in schools and the spread of cases .Ò

31 . D r. Gwynn is a strong advocate for masks in schools to reduce the

transmission of COVID - 19 . Dr. Gwynn is an accomplished pediatrician and

her commitment to her patients is not in dispute. A lthough Dr. Gwynn

agreed that COVID - 19 poses less of a threat to chi ldren than seasonal

influenza, s he testified that she w ould not sign a medical mask waiver form

to opt - out a child from a mask mandate during the COVID - 19 pandemic for

any reason.

32 . Dr. Aileen Marty is an accomplished infectious disease specialist.

Dr. Marty testified that masks are one tool for reducing the t ransmission of

COVID - 19 , which she stated i s caused by a respirator y virus. Citing studies

dating back to 1905, Dr. Marty testified that m asks are a highly effective way

of reducing transmission fro m a respiratory virus, and particularly one that

is spread primarily by aerosol, as is the SARS - CoV - 2 virus.

33 . Bu t n either Dr. Gwynn nor Dr. Marty cited any data comparing

Florida school districts that require masks to those that do not to support

their positions. Dr. BhattacharyaÔs testimony is supported by more relevant

data Ð including the Florida case study and the COVID - 19 Situation Report

data Ð and is accepted over that of Dr. Gwynn and Dr. Marty where it

conflict s . 1

34 . Finally, the Leon County Schoo l Board Ôs recent adoption of similar

mask and quarantine parental o pt - o ut protocols i s another indication that

such protocols are safe.

35 . For all of these reasons, Petitioners failed to prove that the Emergency

Rule O pt - O ut provisions facilitate the sp read of COVID - 19 in schools. On the

contrary, t he evidence admitted in t his case established that the Emergency

1 Th e Center for Disease Control and Prevention (ÑCDCÒ) guidance for COVID - 19 in K - 12

schools recommends universal masking of all students (age d 2 and older), regardless of

vaccination status. This CDC guidance was not relied upon here because the scientific b asis

for the recommendation was not proven . For the same reason, the undersigned did not rely

on recommendations from the European CDC (which recommends no masks for children

under 12) or the World Health Organization (which recommends no mask s for childre n 5 and

under) .

Rule Opt - Out provisions strike the right balance by ensuring that the

protocols that govern the control of COVID - 19 in schools go no further tha n

what is required to keep children safe and in school .

The Quarantine Opt - Out provision is not vague .

36 . Petitioners contend that the Quarantine Opt - Out provision of the

Emergency Rule is vague because it do es not define Ñsick,Ò Ñsymptomatic,Ò or

Ñasy mptomaticÒ and fail s to set forth a procedure for school districts to follow

to determine whether a child fits under one of those categories. Petitioners

also allege that the Quarantine Opt - Out requirements fail to address the

potential conflict of opinion s between a parent and a teacher, or other school

official as to whether a child is sick or asymptomatic. The Emergency Rule is

not vague for these reasons because the language used in the Quarantine

Opt - Out provision has a plain and ordinary meaning and p ersons of common

intelligence can understand it.

37 . Although evidence to prove this point is not required, it bears mention

that many of the quarantine protocols adopted by School Board Petitioners

that were offered as joint exhibits use the same terms , w ithout defining

them , and do not set forth any procedure to follow to make the determination

as to whether a student is sick, symptomatic , or asymptomatic. See COVID -

19 Symptomatic Action Tree for Students adopted by the School Boar d of

Broward County (J oi nt Exhibit 35) ; The COVID - 19 Symptomatic Decision

Tree adopted by the Duval County School Board ( Joint Exhibit 38) ; the Leon

County Schools Exposure - Quarantine COVID - Protocols 9/27/21 ( Joint

Exhibit 40) ; the Miami - Dade Public Schools 2021 - 2022 High School Student

Quarantine Procedures ( Joint Exhibit 46); and Miami Dade Public Schools

Site Response Protocols for Sick Students (COVID - 19) Symptoms ( Joint

Exhibit 45).

C ONCLUSIONS OF L AW

38 . DOAH has jurisdiction over the parties and subject matter of this

pr oceeding. §§ 120.56(1) , (3) and ( 5 ), 120.569, and 120.57(1), Fla. Stat.

39. Petitioner s initiated this proceeding pursuant to section 120.56 to

challenge the validity of the Opt - Out provisions of the Emergency Rule.

Pursuant to section 120.56(1)(a), Ñ [a]n y person substantially affected by a

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.Ò For challenges to existing rules, section 120.56(3)( a) provides:

A substantially affected person may seek an

administrative determination of the invalidity of an

existing rule at any time during the existence of the

rule. The petitioner has a burden of proving by a

preponderance of the evidence that the exi sting

rule is an invalid exercise of delegated legislative

authority as to the objections raised.

40 . Respondent asserts that Petitioners lack standing to go forward with

this rule challenge under the public official standing doctrine. That argument

was r ejected by the undersigned for the reasons explained in detail in the

Order Denying RespondentÔs Motion to Dismiss School Board Petitions for

L ack of Jurisdiction entered on October 20, 2021 . Otherwise, Respondent

stipulates that Petitioners have standing to challenge the Emergency Rule.

41 . An Ñinvalid exercise of delegated legislative authorityÒ is defined in

section 120.52(8). Petition ers contend that the Emergency Rule Opt - Out

provisions are an invalid exercise of delegated legislative authority as def ined

in section 120.52(8) (a) - ( d ), and the flush - left paragraph, which provide:

(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

rulemaki ng 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 ad equate

standards for agency decisions, or vests unbridled

discretion in the agency;

* * *

A grant of rulemaking 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

authority to adopt a rule only because it is

reasonably related to the purpose of the enabling

legislation and is not arb itrary and capricious or is

within the agencyÔs class of powers and duties, nor

shall an agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory language

granting rulemaking authority or gen erally

describing the powers and functions of an agency

shall be construed to extend no further than

implementing or interpreting the specific powers

and duties conferred by the enabling statute.

Respondent did not fail to follow the applicable rulemaking procedures .

42 . Petitioners contend that Respondent failed to follow the applicable

rulemaking procedures because it adopted the Emergency Rule pursuant to

the emergency rulemaking procedures found in section 120.54(4) when the

facts do not warrant it . S ection 120.54(4)(a)3 . provides that Ñ[t]he agencyÔs

findings of immediate danger, necessity, and procedural fairness shall be

judicially reviewable.Ò Petitioners contend that the necessity of using

emergency rulemaking procedures can also be considered in a challenge to

the emergency rule pursua nt to section 120.52(8)(a). The undersigned agrees .

43 . ÑIn order to utilize emergency rulemaking procedures, rather than

employing standard rulemaking, an agency must express reasons at the time

of promulgation of t he rule for finding a genuine emergency.Ò Fla. Ass Ô n of

Homes & Servs. for Aging, Inc. v. Ag. for Health Care Admin . , 252 So. 3d 313,

315 (Fla. 1st DCA 2018). Those reasons must be factually explicit and

persuasive. Fla. Health Care Ass Ô n v. Ag. for Health Care Admin . , 734 So. 2d

1052, 1053 (Fla. 1st DCA 1998).

44 . The preamble to the Emergency Rule sets out a facially adequate

factual basis for emergency rulemaking. In addition, the evidence presented

justif ies emergency rulemaking.

45 . COVID - 19 is an im mediate danger to the public health, safety , and

welfare. Petitioners have adopted, and regularly revised, emergency protocols

governing the control of COVID - 19 in their respective school districts to

res p ond to this public health emergency. Emergency rule making is necessary

because Respondent is statutorily obligated to adopt statewide protocols to

respond to the same emergency , and i ts COVID - 19 protocols must also be

informed by, and adapt to, changing COVID - 19 case data. Respondent cannot

do so without r esorting to the emergency rulemaking procedures , and that

process was fair under the circumstances.

46 . Respondent is confined to the general measures which are necessary

Ñto alleviate the emergency . Ò Times Pub. Co. v. Fla. Dep't of Corr. , 375 So. 2d

307, 310 (Fla. 1st DCA 1979) . The evidence here is that Respondent has done

that. For the reasons set forth in detail in the findings of fact above,

RespondentÔs Emergency Rule strikes the right balance by implementing

protocols that are no more restrictive tha n required to keep children safe and

learning in school.

47 . For all of these reasons , Petitioners did not prove that Respondent

failed to follow the applicable rulemaking procedures in adopting the

Emergency Ru l e.

Respondent did not exceed its grant of rulemaking authority or enlarge,

modify or contravene the law implemented .

48 . An agency may adopt rules Ñonly where the Legislature has enacted a

specific statute, and authorized the agency to implement it, and then only if

the rule implements or interpr ets specific powers or duties[.]Ò State, Bd. of

Trustees of the Int. Imp. Trust Fund v. Day Cruise AssÔn , 794 So. 2d 696, 700

(Fla. 1st DCA 2001). In considering an agencyÔs statutory authority to adopt a

rule, Ñ[t]he question is whether the statute contai ns a specific grant of

legislative authority for the rule, not whether the grant of authority is

specific enough .Ò S w. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc. ,

773 So. 2d 594, 599 (Fla. 1st DCA 2000).

49 . Petitioners contend that the Opt - Out provisions exceed the grant of

rulemaking authority because these provisions are intended only to protect

parental right s . Respondent stipulate s that its rulemaking authority for the

rule is limited to section 1003.22(3) , the only statute cited as rulemaki ng

authority and the law implemented by the Emergency Rule. Respondent does

not cite or rely on the ParentsÔ Bill of Rights or any executive order as

authority for the Emergency Rule in this case. Indeed, it cannot do so.

§ 120.52(8)(b) and (c) , Fla. Stat. (requiring Respondent to cite to the statute

relied upon as the grant of rulemaking authority and the law implemented in

the rule adopted ).

50 . Petitioners allege in their Proposed Final Order (pp. 51 - 52) that the

Opt - Out provisions of the Emergency Rule enlarge, modify or contravene the

law implemented because section 1003.22(3) Ñdoes not address masks,

quarantine requirements, or parental rights relating to either.Ò

51 . Section 1003.22(3) requires Respondent to adopt a rule Ñgovern ing ...

the control of [COVID - 19].Ò The Emergency Rule does that. The COVID - 19

protocols adopted pursuant to section 1003.22(3) should be no more

restrictive than necessary to keep children safe and learning in school . T h e

fact that the Emergency Rule achieves this result Ð and a t the same time

involves parents in decisions involving their childÔs health and education Ð

d oes not run counter to the broad rulemaking directive found in section

1003.22(3).

52 . Petitioners failed to prove that the Opt - Out provisions of the

Emergency Rul e exceed RespondentÔs grant of rulemaking authority or

enlarge, modify or contravene the statute implemented .

The Quarantine Opt - Out provisions are not vague .

53 . Petitioners contend that the Quarantine Opt - Out provision is vague

because it f ail s to define Ñsick,Ò Ñsymptomatic,Ò or Ñasymptomatic,Ò and fail s

to set forth a procedure for school districts to follow to determine whether a

child fits under one of those categories . In addition, they allege that the

Quarantine Opt - Out requirements fail to address the potential conflict of

opinions between a parent and a teacher , or other school official as to

whether a child is sick or asymptomatic.

54 . An administrative rule is invalid under section 120.52(8)(d ) if it

forbids or requires the performance of an act in terms that are so vague that

persons of common intelligence must guess at its meaning and differ as to its

application. Bouters v. State, 659 So. 2d 235, 238 (Fla.1995); Sw. Fla. Water

Mgmt. Dist. v. Charlotte Cnty., 774 So. 2d 903, 915 (Fla. 2d DCA 200 1).

Generally, where words or phrases are not defined, they must be given their

common and ordinary meaning. Sw. Fla. Water Mgmt. Dist., 774 So. 2d

at 915. Ñ[T]he plain and ordinary meaning of [a] word can be ascertained by

reference to a dictionary.Ò Gree n v. State, 604 So. 2d 471, 473 (Fla.1992).

55 . The words Ñsick,Ò Ñsymptomatic,Ò or ÑasymptomaticÒ have a common

and ordinary meaning. In fact, many of the Petitioner School Boards have

adopted quarantine protocols that apply these same terms without defi ning

them. Likewise, these school district protocols do not identify a procedure for

how to determine whether a student is sick, symptomatic or asymptomatic.

56 . Petitioners failed to prove that the Quarantine Opt - Out provisions of

the Emergency Rule are vague, fail to establish adequate standards for

agency decisions, or vest unbridled discretion in the agency .

O RDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

O RDERED that Petitioners failed to prove that Emergency Rule 64DER21 - 15

is an invalid exercise of delegated legislative authority, and the Petition to

Determine the Invalidity of Department of Health Emergency Rule

64DER21 - 15 is hereby DISMISSED .

D ONE A ND O RDERED this 5th day of November , 2021 , in Tallahassee, Leon

County, Florida.

S

B RIAN A. N EWMAN

Deputy Chief J udge

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 5th day of November , 2021 .

C OPIES F URNISHED :

Jamie Alan Cole, Esquire Edward George Guedes, Esquire

Weiss Serota Helfman Weiss Serota Helfman

Cole & Bierman, P.L. Cole & Bierman, P.L.

200 East Broward Boulevard , Suite 1900 2525 Ponce de Leon Boulevard , Suite 700

Fort Lauderdale, Florida 33301 Coral Gables, Florida 33134

Richard Bradlee Rosengarten, Esquire Louise W ilhite - St Laurent, General Counsel

Weiss Serota Helfman Department of Health

Cole & Bierman, P.L . 4052 Bald Cypress Way , Bin A - 02

2525 Ponce de Leon Boulevard , Suite 700 Tallahassee, Florida 32399

Coral Gables , Florida 33134

Joseph M. Goldstein, Esquire

Jason B. Gonzalez, Esquire Shutts & Bowen, LLP

Shutts & Bowen, LLP 200 East Broward Boulevard , Suite 2100

215 South Monroe Street , Suite 804 Fort Lauderdale, Florida 33301

Tallahassee, Florida 32301

Eric M. Yesner, Es quire

Elise M. Engle, Esquire Shutts & Bowen LLP

Shutts & Bowen, LLP 200 East Broward Boulevard , Suite 2100

4301 West Boy Scout Boulevard Fort Lauderdale, Florida 33301

Tampa, Florida 33607

Amber Stoner Nunnally, Esquire

Raymond L. Cordova, Esquire Shutts & Bowen, LLP

Shutts & Bowen, LLP 215 South Monroe Street , Suite 804

200 East Broward Boulevard , Suite 2100 Tallahassee, Florida 32301

Fort Lauderdale, Florida 33301

Maureen Furino, Esquire

Raymond Treadwell, Esquire Executive Office of the Governor

Executive Office of the Governor 400 South Monroe Street

400 South Monroe Street , Suite 209 Tallahassee, Florida 32399

Tallahassee, Flor ida 32399

Wanda Range, Agency Clerk

Ken Plante, Coordinator Department of Health

Joint Administrative Procedures 4052 Bald Cypress Way, Bin A02

Committee Tallahassee, Florida 32399 - 1703

Room 680, Pepper Building

111 West Madison Street Joseph A. Ladapo, M.D. Ph.D.

Tallahassee, Florida 32399 - 1400 State Surgeon General

Department of Health

Anya Grosenbaugh, Program 4052 B ald Cypress Way, Bin A00

Administrator Tallahassee, Florida 32399 - 1701

Margaret Swain

Florida Administrative Code & Regis ter

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

governe d 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 within 30 days of

rendition of the order to be reviewed, a nd 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.