22-000032 Michael Weisser vs. Mccrory' S Sunny Hill Nursery, Llc, D/B/A Growhealthy And Florida Department Of Health, Office Of Medical Marijuana Use Status: Closed Recommended Order on Thursday, February 3, 2022.

Summary: No Summary Necessary

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ICHAEL W EISSER ,

Petitioner ,

vs. Case No. 22 - 0032

M CCRORY Ô S S UNNY H ILL N URSERY , LLC,

D/B/A G ROWHEALTHY A ND F LORIDA

D EPARTMENT OF H EALTH , O FFICE OF

M EDICAL M ARIJUANA U SE ,

Respondents,

and

G OTHAM G REEN P ARTNERS , LLC;

P ARALLAX M ASTER F UND , LP; P ARALLAX

V OLATILITY A DVISORS , L.P.; P ARALLAX

P ARTNERS , LLC; S ENVEST M ASTER F UND ,

L P ; A ND S ENVEST G LOBAL (K Y ), LP,

Intervenors .

/

R ECOMMENDED O RDER OF D ISMISSAL

On January 12, 2022, Gotham Green Part n ers, LLC; Parallax Master

Fund, LP, Parallax Volatility Advisors, L.P. , and Parallax Part n ers, LLC

(collectively, Parallax); and Senvest Master Fund, LP, and Senvest Global

(K Y), LP (collectively , Senvest) (in their entirety, Intervenors), moved to

dismiss this proceeding for lack of standing. Petitioner filed a response in

opposition to the Motion to Dismiss on January 1 9, 2022. Neither Respondent

has filed a response indicati ng agreement with, or objection to, the Motion.

A PPEARANCES

For Petitioner: Stephen A. Ecenia, Esquire

J. Stephen Menton, Esquire

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

For Respondent Mc C roryÔs Sunny Hill Nursery d/b/a Grow H ealthy :

David Ashbu r n, Esquire

Greenburg Traurig

101 East College Avenue

Tallahassee, Florida 32301

For Respondent Florida Department of Health, O ffice of Medical

Marijuana Use:

Eduardo S. Lombard, Esquire

Ange la D. Miles, Esquire

Radey Law Firm, P.A.

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301

For Intervenors Gotham Green Partners, LLC :

John M. Lockwood, Esquire

Devon Nunneley, Esquire

Thomas J. Morton, Esquire

The Lockwood Law Firm

Suite 810

106 East College Avenue

Tallahassee, Florida 32301

For Intervenors Parallax Master Fund, LP, Parallax Volatility Advisors,

L.P., and Parallax Partners, LLC (collectively , Ñ Parallax Ò ) :

D. Ty Jackson, Esquire

Jason L. Unger, Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Tallahassee, Florida 32301

For Intervenors Senvest Master Fund, LP a nd Senvest Global (Ky), LP

(Collectively , ÑSenvestÒ) :

James A. McKee, Esquire

Benjamin J. Grossman, Esquire

Foley & Lardner LLP

Suite 900

106 East C ollege Avenue

Tallahassee, Florida 32301

S TATEMENT OF T HE I SSUE

Whether, as alleged in the Amended Petition for Formal Administrative

Hearing (Amended Petition) , Petitioner meets the requirements for standing

in this proceeding.

P RELIMINARY S TATEMENT

On November 6, 2020, Respondent, McCroryÔs Sunny Hill Nursery, LLC,

d/b/a Grow H ealthy (Grow H ealthy) , submitted a variance request to the

Department of Health (DOH or Department ) , seeking a variance pursuant to

section 381.986, Florida Statutes, and approval of a change in its ownership .

After several requests for additional information, o n October 29, 2021, the

Department advised Grow H ealthy that its variance was approved. Petitioner

filed a Petition challenging the approval of the variance, and on December 6 ,

2021, the Department issued an Order to Show Cause direct ing Petitioner to

file a r esponse to the Order or to file an a mended Petition on or before

December 17, 2021. Petitioner filed its Amended Petition on December 17,

2021, as required by the Departme ntÔs Order.

Intervenors each filed Notices of Intervention and Appearance on

December 17, 2021, and on January 4, 2022, the Department forwarded the

Amended Petition as well as the Notices of Intervention and Appearance to

the Division of Administrative He aring s (DOAH) for assignment of an

administrative law judge.

On January 6, 2022, Petitioner filed a Motion to Strike Notices of

Intervention and Appearance, arguing that Intervenors cannot rely on

Florida Administrative Code Rule 28 - 106.205(3) to participa te in the

proceedings because the Amended Petition does not specifically name any of

the i nvestment e ntities as part ies whose substantial interests are to be

determined. Intervenors responded on January 13, 2022, noting that the rule

states Ñspecifically - n amed persons, whose substantial interests are being

determined in the proceeding, may become a party.Ò The Motion to Strike

was denied by Order dated January 14, 2022.

The Amended Petition named Petitioner in his individual capacity and as

Ñdesignated rep resentative for more than 100 shareholders holding more

than 7,500,000 shares.Ò Neither the Amended Petition nor the Notice of

Agency Referral were served on Grow H ealthy or its counsel, and in the Joint

Response to Initial Order, counsel for the Department indicated that it had

not received any response from Respondent and was not sure that

Grow H ealthy intended to participate. On January 12, 2022, an Order was

issued which stated in part:

The Joint Response to the Initial Order indicates

that it is unclear that Grow H ealthy intends to

participate in this proceeding. However, that

answer might be different if Grow H ealthy was

actually served with the Amended Petition.

In addition, the Amended Petition lists Petitioner

as bringing this action Ñindividually a nd as

designated representative for more than 100

shareholders holding more than 7,500,000 shares,Ò

which seems more like a class action suit than a

challenge to a variance. The Amended Petition does

not allege the vehicle by which Petitioner is

authorized to represent the interests of these

unnamed shareholders, or the statutory authority

in the Administrative Procedure Act to represent

other petitioners in this manner.

Petitioner was directed to serve Grow H ealthy with the Amended Petition,

which he did, a nd to provide authority for appearing as a designated

representative for other unnamed Petitioners. On January 18, 2022,

Petitioner responded to the January 12, 2022 , Order, indicating that he

would proceed in his individual capacity. Because Petitioner is no longer

seeking to represent other, unnamed Petitioners, Intervenors arguments

regarding his ability to do so are moot and will not be addressed in this

Order.

On January 12, 2022, Intervenors filed a Joint Motion to Dismiss in which

they asserted tha t Petitioner does not have standing to bring this challenge

to the DepartmentÔs issuance of a variance to Grow H ealthy. Petitioner filed

its response on January 19, 2022.

F INDINGS OF F ACT

For the purposes of analyzing a motion to dismiss, the undersigned may

only consider the four corners of the Amended Petition. Altee v. Duval Cnty.

Sch. Bd. , 990 So. 2d 1124, 1129 (Fla. 1 st DCA 2008) ; Mid - Chattahoochee

River Users v. DepÔt of Env Ô t Reg . , 948 So. 2d 794 , 796 (Fla. 1st DCA 2007) .

The facts listed below are allegations listed in the Amended Petition that

provide background and information with respect to PetitionerÔs standing.

The undersigned has not considered any additional factual allegations

contained in IntervenorsÔ Joint Motion to Dismiss.

1. Petition er , Michael Weisser , is a Florida resident and current

shareholder of i A nthus Capital Holdings, Inc. (iAnthus), which is

GrowHealthyÔs parent corporation.

2. Respondent, McCroryÔs Sunny Hill Nursery, LLC, d/b/a GrowHealthy,

was initially licensed by the D epartment as a Low - THC Dispensing

Organization pursuant to section 381.986, Florida Statutes (2014), and is

now a licensed Medical Marijuana Treatment Center (MMTC) pursuant to

section 381.986, Florida Statutes (2017). As an MMTC, GrowHealthy is

subject to the requirements of section 381.986 and is regulated by DOH.

3. On November 6, 2020, GrowHealthy submitted a variance request to

the Department seeking approval of a change to its original ownership

organizational structure. More specifically, GrowHealthy sought approval of

a change in ownership for purposes of facilitating a recapitalization

transaction of GrowHealthyÔs ultimate parent company, iAnthus. The

proposed ownership change is part of a complex effort to restructure the

relationship between the s hareholders and iAnthus Ô lenders pursuant to a

Restructuring Support Agreement (RSA) between iAnthus and certain of its

lenders. The requested variance would enable the lenders to become equity

holders of 97.25 percent or greater of iAnthus and thereby dil uting existing

shareholders Ô equity to 2.75 percent of the company. 1 The approval of the

variance would result in a dramatic dilution of the position of existing

shareholders , including Weisser. 2

4. Counsel for existing shareholders of iAnthus (including P etitioner)

expressed their concerns in correspondence to the Department on fi ve

different occasions from June 29, 2021 , through September 28, 2021, stating

that the proposed ownership change would unlawful ly enable the lenders to

acquire ownership interest s in more than one Florida MMTC in direct

violation of section 381.986(8)(e).

5. Petitioner believes and alleges that the approval of the variance by the

Department on October 29, 2021, would effectively result in approval of dual

ownership by certain of t he lenders in iAnthus, GrowHealthyÔs parent entity,

1 The Amended Petition does not allege what percentage of iAnthusÔ equity Petitioner

currently holds, only that the change wou ld be a Ñdramatic dilutionÒ of his current,

unspecified, share.

2 The Amended Petition actually states Ñincluding Weisser and those he represents.Ò Given

that Petitioner no longer seeks to represent any other shareholders, any reference to these

other unn amed persons is deleted throughout, and PetitionerÔs standing is evaluated based

on his individual participation.

and other Florida licensed MMTCs in direct contravention of section

381.986(8)(e)2.

6. Petitioner currently owns 2.5 million shares of iAnthus. Petitioner

allege s that his substantial interests will be a dversely affected if the

DepartmentÔs approval of the variance stands. The current shareholders of

i Anthus presently own 100 percent of the company. If the variance is

approved, almost 100 percent ownership of iAnthus will be transferred awa y

from the shar eholders to the lenders listed in the variance request. The

lending groups would end up owning 97.25 percent of iAnthus leaving the

shareholders with only 2.75 percent of the ownership, thus severely diluting

the value of their shares in favor of the lendi ng groups. Petitioner alleges

that t he DepartmentÔs approval of the variance would result in the current

shareholders losing hundreds of millions of dollars in value for their interest

in iAnthus and could impact the ability of GrowHealthy to expand its

bu siness in Florida and timely provide quality products to patients in need.

7. Petitioner alleges that he falls within the zone of interest s protected by

section 381.986 , because his injuries fall within the purpose and intent of

section 381.086 . He alleged that the statute seeks to protect against common

or dual ownership among MMTCs in order to ensure continued access to a

variety of medical marijuana products at a competitive price and to provide

access to safe, quality medicine while ensuring independenc e among the

licensed MMTCs and protecting the value of the companies so that they can

provide quality medical marijuana products.

C ONCLUSIONS OF L AW

8 . DOAH has jurisdiction over the parties to and the subject matter of

th ese proceedings pursuant to secti ons 120.569 and 120.57(1), Florida

Statutes.

9. In their Joint Motion to Dismiss, Intervenors contend that there is no

basis for the proposition that a shareholder of a parent company has standing

to challenge an agencyÔs regulatory action taken at the req uest of the parent

companyÔs subsidiary, and that, based on the allegations in the Amended

Petition, Petitioner does not satisfy either prong of the standing test

enunciated in Agrico Chemical Co. v. Department of Environmental

Protection , 406 So. 2d 478 ( Fla. 2d DCA 1981).

10. As a preliminary matter, Petitioner responds that Intervenors do not

have the right to challenge his standing because of their status as

intervenors. Petitioner states that an intervenor takes a case as it finds it

and may not raise new issue s or challenge the sufficiency of the pleadings by

filing a motion to dismiss. Petitioner relies on Environmental Confederation

of Southwest Florida, Inc. v. IMC Phosphates, 857 So. 2d 207 (Fla. 1 st DCA

2003) (citing Hoechst Celanese Corp. v. Fry , 693 So. 2d 1003 (Fla. 3d DCA

1997) and Bay Park Towers Condo minium AssÔn v. H.J. Ross & Assoc. ,

503 So. 2d 1333 (Fla. 3d DCA 1987) ), and State Trust Realty, LLC v. Deutsche

Bank Trust Co. Americas , 207 So. 3d 923, 925 - 26 (Fla. 4th DCA 2016).

11. All four of these cases rely on Florida Rule of Civil Procedure 1.230,

which provides:

Anyone claiming an interest in pending litigation

may at any time be permitted to assert a right by

intervention, but the intervention shall be in

subordination to, and in recogn ition of, the

propriety of the main proceeding, unless order ed by

the court in its discretion.

12. However, other than rules regarding discovery identified in section

120.569, the Florida Rules of Civil Procedure provide only persuasive

authority and are not directly applicable to administrative proceedings.

Moreover, the Uniform Rules of Procedure contain a rule governing

intervention that is significant ly different than rule 1.230, and it provides as

follows:

28 - 106.205 Intervention.

(1) Persons other than the original parties to a

pending proceeding whose substantial interest will

be affected by the proceeding and who desire to

become parties may move the presiding officer for

leave to intervene. Except for good cause shown,

motions for leave to inter vene must be filed at

least 20 days before the final hearing unless

otherwise provided by law. The parties may,

within 7 days of service of the motion, file a

response in opposition. The presiding officer may

impose terms and conditions on the intervenor t o

limit prejudice to other parties.

(2) The motion to intervene shall contain the

following information:

(a) The name, address, e - mail address, telephone

number, and any facsimile number of the

intervenor, if the intervenor is not represented by

an attor ney or qualified representative; and

(b) The name, address, e - mail address, telephone

number, and any facsimile number of the

intervenorÔs attorney or qualified representative;

and

(c) Allegations sufficient to demonstrate that the

intervenor is entitled to participate in the

proceeding as a matter of constitutional or

statutory right or pursuant to agency rule, or that

the substantial interests of the intervenor are

subject to determination or will be affected by the

proceeding; and

(d) A statement as t o whether the intervenor

supports or opposes the preliminary agency action;

and

(e) The statement required by subsection 28 -

106.204(3); and

(f) The signature of the intervenor or intervenorÔs

attorney or qualified representative; and

(g) The date.

(3) S pecifically - named persons , whose substantial

interests are being determined in the proceeding,

may become a party by entering an appearance

and need not request leave to intervene.

Rulemaking Authority 14.202, 120.54(5) FS. Law

Implemented 120.54(5) FS. History Ï New 4 - 1 - 97,

Amended 1 - 15 - 07, 2 - 5 - 13. (emphasis added) [ 3 ]

13. Rule 28 - 106.205 is consistent with section 120.52( 13 ), which provides

in pertinent part:

(13) ÑPartyÒ means:

(a) Specifically named persons whose

substantial interests are being determined in the

proceeding.

(b) Any other person who, as a matter of

constitutional right, provision of statute, or

provision of agency regulation, is entitled to

partic ipate in whole or in part in the proceeding, or

whose substantial interests will be affected by

proposed agency action, and who makes an

appearance as a party.

(c) Any other person, including an agency staff

member, allowed by the agency to intervene or

pa rticipate in the proceeding as a party. An agency

may by rule authorize limited forms of

participation in agency proceedings for persons who

are not eligible to become parties.

(d) Any county representative, agency,

department, or unit funded and authorize d by state

statute or county ordinance to represent the

interests of the consumers of a county, when the

proceeding involves the substantial interests of a

significant number of residents of the county and

the board of county commissioners has, by

resoluti on, authorized the representative, agency,

department, or unit to represent the class of

interested persons. The authorizing resolution shall

apply to a specific proceeding and to appeals and

ancillary proceedings thereto, and it shall not be

3 It is noted that Environmental Coalition of Southwest Florida is an administrative

proceeding under the Administrative Procedure Act, and it relies squarely on rule 1.230 for

part of its reasoning. However, the current version of Florida Administrative Code Rule 28 -

106.205 , which significantly broadens intervenor status in administrative proceedings, did

not become effective until 2013, well a fter Environmental Coalition of Southwest Florida was

decided.

required t o state the names of the persons whose

interests are to be represented.

14. Intervenors are specifically mentioned in the Amended Petition.

See paragraphs 14 - 1 7, 28 - 33, 35 - 41, 43 - 44, 66 - 70, 73 - 76, 83 - 84, 86, and the

unnumbered paragraph in the Reservatio n to Amend. References to them are

not incidental, but central to the Amended Petition. Given that the nature of

IntervenorsÔ proposed interest in iAnthus is at the heart of PetitionerÔs

complaint, it cannot be said that their substantial interests are not affected

by the proposed agency action or the outcome of this proceeding.

15. Under these circumstances, Intervenors are permitted to raise the

issue of Petitioner Ô s standing.

16. Moreover, in administrative proceedings, standing is a jurisdictional

iss ue. In Abbott Laboratories v. Mylan Pharmaceuticals, Inc., 15 So. 3d 642,

651 n.2 (Fla. 1 st DCA 2003), the First District dealt with whether Abbott

Laboratories had standing to appeal a final order in a rule challenge. The

First District found that Abbott did have standing, but stated:

Mylan admits that standing was not raised as an

issue by either party in the proceeding below.

Interestingly, as pointed out by Abbott, Mylan did

not challenge AbbottÔs standing below, because

MylanÔs standing to initiate thi s rule challenge

proceeding was also based on its financial interests.

Nevertheless, Mylan asks this court to deny Abbott

standing to bring this appeal on the ground that

AbbottÔs only interest in the proceeding is financial

and to overlook that both parti es based their

standing below on their financial interests at stake

in the implementation of the generic substitution

law. As recognized by this court in Grand Dunes

Ltd. v. Walton County , 714 So. 2d 473, 475 (Fla. 1 st

DCA 1998), standing in the administr ative context

is a matter of subject matter jurisdiction and

cannot be conferred by consent of the parties. Thus,

if indeed economic interest was not sufficient to

grant these parties the necessary standing to

participate in the rule challenge proceeding b elow,

the ALJ would have lacked jurisdiction to rule on

the merits of the rule challenge and her order would

have been a nullity. (emphasis added)

17. ÑIt is a cornerstone of administrative law that administrative bodies or

commissions, unless specifical ly created within the constitution, are

creatures of statute and derive only the power specified therein.Ò Grove Isle,

Ltd. v. DepÔt of Env Ôt R eg., 454 So. 2d 571, 573 (Fla. 1 st DCA 1984). DOAH is

clearly a statutorily - created entity and must confine its d ecision - making to

the parameters defined by the Legislature. S.T. v. Sch. Bd. of Seminole Cnty. ,

783 So. 2d 1231, 1233 (Fla. 5 th DCA 2001) (DOAH has no common law

powers and has only such powers as the legislature chooses to confer on it by

statute.). Give n that the legislature has only permitted hearings to challenge

agency action where a partyÔs substantial interests are affected, PetitionerÔs

standing must be determined before this case can proceed.

18. The polestar for determining standing in administr ative proceedings is

the test established in Agrico Chemical Co. v. Department of Environmental

Protection , supra . In Agrico , Agrico Chemical Company sought permits for

solid Sulphur - handling facilities. Two of AgricoÔs competitors filed objections

to the issuance of permits to Agrico, and with respect to the air permit

sought, the then - hearing officer granted standing to the competitors for three

reasons: 1) the competitorsÔ substantial interests were affected because of the

adverse economic impact the iss uance of the permit would cause; 2) the

AgencyÔs forwarding of the petitions to DOAH allowed the competitors to

intervene pursuant to the definition of ÑpartyÒ in section 120.52(10)(c); and

3) the LRACT rule (Florida Administrative Code Rule 17 - 2.03) entit led them

to participate as parties pursuant to section 120.52(1)(b). The Department

rejected the first two grounds for standing in its F inal O rder but adopted the

recommended disposition of denying the permit.

19. The Second District held that the Departm ent erred in granting

standing to the competitors and allowing them, as economic competitors, to

participate in AgricoÔs permitting process, and in doing so, established the

test for evaluating standing that is regarded as the benchmark in

administrative p roceedings . The court stated:

We believe that before one can be considered to

have a substantial interest in the outcome of a

proceeding he must show 1) that he will suffer

injury in fact which is of sufficient immediacy to

entitle to a section 120.57 hear ing, and 2) that his

substantial injury is of a type or nature which the

proceeding is designed to protect. The first aspect of

the test deals with the degree of injury. The second

deals with the nature of the injury. While

petitioners in the instant case were able to show a

high degree of potential economic injury, they were

wholly unable to show that the nature of the injury

was one under the protection of chapter 403.

406 So. 2d at 482. The competitors argued that the language in rule 17 -

2.03(1)(a) , whi ch directed the Department to consider Ñthe social and

economic impact of the application of technologyÒ when issuing a permit , was

broad enough to include consideration of the economic impact on a business

entity when a competitor is first on the market w ith a less expensive product,

which was the case with Agrico. The court rejected this argument, stating

that the cited provision in the rule is a

cost/benefit test; cost to the affected business as

opposed to the benefit to environmental interests

served by the new technology. The provision does

not require DER to balance the cost of new

technology to the affected business against possible

economic losses to a business competitor. Thus, the

LRACT Rule is not a Ñprovision of agency

regulationÒ which allows a competitor to object,

solely on the basis of potential competitive

economic injury, to the issuance of a permit under

chapter 403.

406 So. 2d at 482 - 83.

20. Agrico remains the standard by which standing issues are measured,

and both Petitioner and the Intervenors have cited cases that rely on the

Agrico test to support their argument s in this case. Intervenors argue that a

shareholder does not have standing to challenge the regulatory actions taken

at the request of a subsidiary of the entity in which Petitioner is a

shareholder and asserts that Petitioner does not satisfy either prong of the

Agrico test. They contend that the only injury that he specifically alleges is

the dilution of his equity holdings and diminished value, and that this injury

flows not from the granting of the variance, but from the decision by iAnthus

to enter into the restructuring agreement . Intervenors claim that PetitionerÔs

injury will occur regard less of the corporate makeup of the additional equity

owners contemplated by the restructuring agreement.

21. Intervenors cite to several cases in support of their position that

Petitioner does not have standing to bring this proceeding. The first is Village

Park Mobile Home Association v. Department of Business Regulation , 506 So.

2 d 426 (Fla. 1 st DCA 1987), a case in which a mobile home park owner

provided a proposed prospectus to the Department of Business Regulation,

Division of Florida Land Sales, Condominiums and Mobile Home s (Division)

for review and approval, as was required b y section 723.011, Florida

Statutes. The Division approved the prospectus, and the association and

individual residents within the park filed a petition to initiate formal

proceedings . They argued that the Divis i on should not have approved the

proposed pro spectus because its terms greatly increased the cost of residence

in the park; substantially reduced the services previously provided by the

park owner ; and modified the terms under which they had previously resided

in the park. The Department of Business Regulation denied the petition to

initiate form al proceedings, stating that neither the Act nor the rules adopted

thereto contemplated homeownersÔ participation in the prospectus approval

process, and the petition failed to state that their substantial int erests had

been determined by the agency in the review process. Since specific statutory

remedies were available with respect to rent increases or decreases in

services when actually threatened, the petitioners needed to pursue those

remedies as opposed to participation in the prospectus review process.

22. On appeal, the First District agreed with the Division that the mobile

home owners and their association were not entitled to participate in the

prospectus review process. The Court noted that the pros pectus was a

disclosure document which has elements required by statute and must be

offered by the park owner in the rental of mobile home lots. The purpose of

the prospectus was to disclose to prospective lessees information regarding

the future operation of the park. It was given only to prospective lessees and

to tenants upon renewal of an existing rental agreement. A separate

statutory provision contained a notice requirement and separate remedies for

lot rental increases, reductions in services, and ch anges in rules or

regulations.

23. Based on this framework, the c ourt stated that the legislature

contemplated exclusive participation in the prospectus review process by

park owners, and the petitioners failed to establish that the prospectus

review aff ected their substantial interests. The court found petitioners Ô

concerns to be speculative, inasmuch as there were no allegations that mobile

homes had been offered for sale, sold, or could not be sold as a result of the

provisions in the prospectus. It al so found that the alleged injury was not the

type of injury the prospectus review process was designed to protect, and that

participation by the mobile home owners would do nothing to prevent the

perceived injury. On rehearing, the court added:

All of this indicates that the approval of the

prospectus does not automatically result in the

increase of rents, reduction in services, or changes

in park rules or regulations. Rather, it is the

implementation of the provisions of the prospectus

by the park owner wh ich may result in a rent

increase, reduction in services, or a change in park

rules. Thus, in the event that any harm is suffered,

it will result from the implementation of the

provisions contained in the prospectus and not from

agency approval of the pros pectus.

506 So. 2d at 434 .

24. In Friends of the Everglades , Inc. v. Board of Trustees of the Internal

Improvement Trust Fund , 595 So. 2d 186 (Fla. 1 st DCA 1992), property

purchased pursuant to the Conservation and Recreation Lands (CARL)

statute was ori ginally used as a botanical site by the Department of Natural

Resources, Division of Recreation and Parks. The Trustees decided to lease a

portion of the site for use as a juvenile detention facility, and Friends of the

Everglades filed a petition to chall enge the change in use. They alleged that

use as a juvenile detention facility was contrary to the statutory

requirements of the CARL program that the land be used for public

recreation and conservation.

25. Friends of the Everglades based its standing o n two things: their

substantial lobbying efforts in the acquisition of the site for purchase, and the

loss of use of the recreational facilities by its members . The court rejected the

lobbying efforts as a basis for standing, saying that while commendable,

those efforts did not equate to an injury supporting standing. It found

however, that using the site as a juvenile facility would immediately preclude

use as a recreation area, as well as cause environmental damage to the

proposed site. The court found th at these assertions, if found to be true, were

the type of injury that the CARL statute was designed to protect, and

established petitionerÔs standing.

26. Intervenors also cited Advance Barricades & Signing, Inc. v.

Department of Transportation, 632 So. 2d 704 (Fla. 1 st DCA 1994). Advance

Barricades was a disadvantaged business enterprise and a subcontractor on a

project awarded to the Hardaway Company by the Department of

Transportation (DOT). Hardaway terminated Advance Barricades and sought

approval fr om DOT to substitute another subcontractor, pursuant to the

requirements of Florida Administrative Code R ule 14 - 78.003. Advance

Barricades sought a hearing to have DOT rescind its approval, and DOT

denied its request for hearing. On appeal, the First Distr ict affirmed the

denial , stating in part:

The question in this case is simply whether [the

applicable rule] confers on the DOT any authority,

or imposes on DOT any obligation, to withhold

approval of a substitution if the prime contractor

has no Ñvalid gro unds for the removal. Ò We agree

with the position of DOT that this approval is

merely a ministerial act so long as the new

subcontractor is on the list of certified DBEs, and

that all the prime contractor must prove to DOT if

the new subcontractor is not a DBE is a good faith

effort to subcontract with another DBE. The

language in the rule regarding removal of DBE

subcontractors for failure to perform has no force

and effect with regard to the duties and obligations

of DOT. È Advance Barricades does not see k to

prove that the DOT acted Ñfraudulently, arbitrarily,

illegally, or dishonestly,Ò rather, Advanced

Barricades wants a hearing to prove to the DOT

that Hardaway acted Ñfraudulently, arbitrarily,

illegally, or dishonestlyÒ in its request to DOT for

appro val of substitution of DBE subcontractors.

Advance Barricades does not have standing to

request such a hearing because there is no statute

or rule under which DOT is empowered or obligated

to protect DBE subcontractors from wrongful

termination by prime co ntractors. See Agrico

Chemical Company v. Department of

Environmental Regulation , 406 So. 2d 478 (Fla. 2d

DCA 1981).

632 So. 2d at 705 - 06.

27. Intervenors rely on Mid - Chattahoochee River Users for the premise

that standing is not demonstrated where the i njuries alleged are not related

to the issues resolved in the intended agency action . In Mid - Chattahoochee

River Users, the Department of Environmental Protection (DEP) denied a

permit application filed by the U.S. Army Corps of Engineers to use sovereign

lands to maintenance - dredge the Apalachicola River navigation channel. The

permit application was denied because of DEPÔs concerns about adverse

environmental impacts caused by prior permitted activities. The Mid -

Chattahoochee River Users (River Users) pet itioned for a hearing on the

permit denial, contending that if the permit was not issued, its members

would suffer immediate harm from the inability to navigate down the river,

requiring them to use other, more expensive routes to ship large pieces of

indu strial equipment. DEP addressed its jurisdiction to consider the River

UsersÔ amended petition and stated that with respect to standing, River

UsersÔ membersÔ economic injury was not within the zone of interest to be

protected under the pertinent regulator y scheme.

28. On appellate review, the First District cited to the Agrico test, and

stated that Ñ[t]he intent of Agrico was to preclude parties from intervening in

a proceeding where those partiesÔ substantial interests are totally unrelated

to the issue s that are to be resolved in the administrative proceedings.Ò Id . at

797. The court focused on the second prong of the Agrico test, and examined

the statutory criteria DEP was to consider when a proposed activity is on, in,

or over surface waters. Economic injury was not among the factors identified.

The First District concluded the River Users did not have standing and

stated:

Here, there is no question that any harm suffered

by appellantÔs members as a result of the notice of

denial would be economic in nature. Appellant

essentially acknowledges such when it argues that

if the notice of denial is not reversed, a substantial

number of its members will be adversely affected

because the Apalachicola River Ñwill not longer be a

reliable avenue for commercial navigation to the

Gulf of Mexico.Ò Unlike the situation in Ybor III,

Ltd. [v. Florida Housing Finance Corporation,

843 So. 2d 344, 345 (Fla. 1 st DCA 2003)], where

the harm suffered by the appellant was of the type

that the proceeding at issue was designed to

protect, any economic injury suffered by appellantÔs

members as a result of the notice of denial is not of

the type that chapter 373Ôs permitting process was

designed to protect.

948 So. 2d at 799.

2 9 . Finally, Intervenors cite the F inal O rder in Le onard v. Department of

Banking and Finance and Sunniland Bank , Case No. 96 - 3805 (Fla. DOAH

Apr. 11, 1997) for the premise that a shareholder does not have standing to

challenge regulatory actions. In Leonard , the Department of Banking and

Finance notified Sunniland Bank that the Department had conducted its

investigation of the bankÔs director and did not intend to disapprove him as

director of the bank. Leonard filed a petition challenging the DepartmentÔs

decision, stating that she had standing based on h er 46 percent interest in

the bankÔs outstanding common shares, and as a depositor of the bank. The

administrative law judge found that she did not have standing, saying that

while she did have an interest in protecting her funds in the bank and the

value of her stock, it was a matter of Ñconjecture and speculation, however,

that Petitioner will suffer any loss of her deposit monies or decrease in the

value of her stock as a result of the DepartmentÔs failure to disapprove

McLaughlin as a director of the ba nk.Ò Id . at 13 - 14. Most importantly, the

O rder states,

[N]either section 655.0385, Florida Statutes, Rule

3C - 100.0385, Florida Administrative [Code], nor

any other statutory or rule provision or any

constitutional provision entitles Petitioner as a

curren t depositor and shareholder of the bank to

initiate such a challenge. An examination of [the

statutes and rule] reveals no indication of any

intent to involve the depositors or shareholders of a

financial institution in the process to determine

whether a p roposed director of the institution

should be disapproved by the Department.

Id . at 16.

30 . Petitioner cites five different cases to support his standing to challenge

the issuance of the variance. He also asserts that DOH forwarded the

Amended Petition in order to develop and complete factual record on the

issue of dual ownership. 4 Petitioner states that the degree of injury, or injury

in fact , relates to the reduction in value of his investment, that as an existing

shareholder of iAnthus, he is injured if the ownership restrictions in section

381.986 are ignored or circumvented , and that his interest as a shareholder

to ensure proper interpretation of statute regarding ownership falls within

the zone of interest protected.

31. Petitioner relies in part on Ybor III, Ltd. for the premise that an

economic interest can, in some instances, be a legitimate basis for

establishing standing . Ybor III, Ltd. was a housing developer wh ich applied

for funding from the Florida Housing Finance Corporation (FHFC) pursu ant

to the process authorized in chapter 420, Florida Statutes. In the relevant

cycle of applications, another developer (Windsong II) was awarded funding

and Ybor III was not. Ybor III petitioned for a hearing, alleged that Windsong

IIÔs application was s cored incorrectly, and had it been scored properly, Ybor

III would have received the funding awarded to Windsong II. FHFC

dismissed the petition, and Ybor III appealed.

32 . On appeal, the First District reversed FHFCÔs final order, stating that

having rai sed disputed issues of material fact, Appellant , Ybor III, still had to

establish standing to request and participate in a formal administrative

hearing. The court recited the Agrico test and stated:

We conclude that Appellant meets the first prong of

the test requiring that it show a Ñsubstantial

4 It is noted that the agency referral does not make such a statement. It is a standard

referral, which says, ÑPlease be advised that the Department of Health has received a

Petition for Hearin g from the above - designated Petitioner. The Department requests that the

Division of Administrative Hearings (DOAH) to assign this matter to an Administrative Law

Judge to conduct all necessary proceedings required under the law, and to submit a

Recommended Order to the Department. A copy of the PetitionersÔ Amended Pe tition for

Formal Administrative Hearing with all attachments and the Notices of Intervention and

Appearance for the Intervenors are included herein.Ò

interest.Ò Appellee, by granting Windsong IIÔs

application, excluded Appellant from that cycle of

the funding process; such exclusion provides a

sufficient interest to support a section 120.57

hearing from Appella nt.

We also conclude that Appellant meets the second

prong of the Agrico Chem. Co. test, i.e., AppellantÔs

injury is of the type or nature that the proceeding is

designed to protect. Common sense and logic

dictate that is such a program of economic

incen tives to private investors to commit to low -

income is to succeed, the process of determining

who is qualified for loans and/or tax credits must be

administered fairly, honestly, and consistently

according to the rules that Appellee is charged with

implemen ting. È The administrative need for

decisional finality is a nullity if the road toward

closure does not permit a reasonable point of entry

for an aggrieved applicant to speak and be heard.

Because Appellant demonstrated the requisite

substantial injury an d was denied such an

opportunity , we conclude that Appellant has

standing to request a formal administrative

hearing to address the disputed facts alleged in the

petition.

843 So. 2d at 346 - 47.

3 3 . Another case cited by Petitioner involving economic inj ury is Shands

Jacksonville Medical Center, Inc., v. Department of Health , 12 3 So. 3d 86

(Fla. 1 st DCA 2013). In Shands , several hospitals with existing trauma

centers sought to challenge the grant of provisional licenses to nearby

hospitals to operate new trauma centers. The DOH consolidated the requests

for hearing and dismissed them for lack of standing. The appellate court

reversed, stating that DOH erred in dismissing the challenges for lack of

standing . The court held that the substantial interests of the existing trauma

centers were within the zone of interest protected by the trauma care

statutes, which required DOH to consider the impact that new trauma

centers will have on existing trauma centers. The new trauma centers did not

contest that the exis ting trauma centers would suffer significant injuries, but

argued that because those injuries were financial, they were not within the

zone of interests protected by statute.

3 4 . The court rejected this argument, noting that section 395. 40(2) ,

Florida St atutes, provides , in part , that an Ñinclusive trauma systemÒ means

a system Ñdesigned to meet the needs of all injured trauma victims who

require care in an acute - care setting and into which every health care

provider or facility with resources to care for the injured trauma victim is

incorporated.Ò (emphasis added). The court stated that the injuries alleged

by the existing trauma centers could impact whether they continued to have

the financial resourcing or staffing to care for patients if new centers w ere

permitted when no need existed for them. In addition, while the new trauma

centers focused on the care of trauma victims, the court stated that section

395.40(2) did not nullify the language in section 395.402 requiring DOH to

consider factors which wo uld affect existing facilities, and to take into

consideration the need to maintain effective trauma care in areas served by

existing centers.

3 5 . Similarly, in SCF, Inc. v. Florida Thoroughbred BreedersÔ AssÔn,

227 So. 3d 770 (Fla. 1 st DCA 2017), the Fl orida Thoroughbred BreedersÔ and

OwnersÔ Association (FTBOA) was authorized by the legislature to decide the

amount and distribution of racing awards, with the goal of encouraging the

agricultural activity of breeding racehorses in the state. § 550.26165, Fla.

Stat. (1993). FTBOA was to create a uniform rate and procedure for the

payment of awards that provide for the maximum possible payments within

revenues and make breedersÔ and stallion award payments in strict

compliance with the established uniform ra te and procedure plan.

§§ 550.26165(2); 550.2625(3), Fla. Stat. Southern Cross Farms, d/b/a SCF,

Inc. (SC F ) , had received breedersÔ awards from FTBOA every year but one

since 1998, and in 2015 earned awards based on the performance of four

horses which the y planned to race again in 2016.

3 6 . The Division of Pari - Mutuel Wagering (PMW) was required to approve

the annual plan before implementation , and approved the plan for the 2016

race year. SCF challenged the planÔs compliance with statutory requirements,

and the ALJ dismissed SCFÔs Amended Petition, holding that SCF lacked

standing because its substantial interests were not affected by the Ñmere

approvalÒ of the plan. On appeal, the First District reversed, stating that

SCFÔs petition allege d a scope of in terest and relief requested that

demonstrate d the t ype of substantial interest that c ould be administratively

addressed and resolved. ÑIndeed, the raison dÔetre for the plan to establish

breedersÔ awards of optimal magnitude is to encourage the very activi ty in

which SCF has successfully engaged.Ò 227 So. 3d at 776. With respect to the

first prong of the Agrico test , the court rejected the claim that SCFÔs prospect

of earning an award was speculative: Ñ[T]he proper inquiry is on the

likelihood of injury, no t that it be certain.Ò Id . It rejected the claim that the

statute did not contemplate the participation in the process by individual

breeders to protect their individual interests, saying that such a conclusion

overlooks that much of the impetus and focus of the

statutory framework is to optimize payouts to top

Florida - bred horse owners whose horses excel in

Florida, SCF being one. Because the statutory

framework was set up to provide economic

inducements for Florida breeders like SCF to

operate successful equestrian programs in - state, it

would be a curious conclusion that none of them

individually or as a group has a legal basis to

complain about the planÔs compliance with the

statutory guidelines as to awards.

3 7 . Another case cited by Petitioner to sup port the notion that financial

interests may be the basis for standing is Bluefield Ranch Mitigation Bank v.

South Florida Water Management District, 263 So. 2d 125 (Fla. 4 th DCA

2018). Bluefield Ranch filed a petition for hearing to challenge the water

ma nagement districtÔs issuance of a permit to DOT for a road - widening

project. The water management district dismissed the petition, determining

that Bluefield Ranch lacked standing to challenge the permit because its

interest was mere economic injury. The F ourth District reversed, holding that

Bluefield demonstrated standing beyond mere economic injury.

3 8 . The crux of Bluefield RanchÔs complaint was that DOT was required to

purchase mitigation credits as a means of offsetting the environmental

impact of th e project. Most of the mitigation credits purchased were to be

provided by a different mitigation bank. Bluefield Ranch contended that the

other mitigation bank did not meet statutory criteria to be considered for

mitigation on the project, and DOT was req uired to consider Bluefield Ranch

for the credits. Bluefield RanchÔs petition alleged that it had standing

because as a mitigation bank, it had an interest in the enforcement of

statutory compliance for the mitigation within its service area, to prevent

en vironmental harm caused by unlawful mitigation. It also alleged that as a

landowner, it had a substantial interest in the protection of the environment

and the continued restoration, enhancement, and preservation of wetlands

within its service area.

3 9 . T he Fourth District examined Bluefield RanchÔs standing in light of

the Agrico test, stating,

It is well established that mere economic interests

and the general interests of citizens are insufficient

to establish standing. The reason, in part, is

because we seek to Ñlimit unwarranted use of

judicial resources in challenges involving

discretionary decisions of legislative bodies.Ò

However, we are also cognizant that Ñone of the

major legislative purposes of the Administrative

Procedure Act was the expansion of public access to

the activities of governmental agencies.Ò

AgricoÔs intent was not to preclude participation by

parties who stand to be affected by the actual and

foreseeable results of agency action. È Instead,

AgricoÔs intent was to Ñpreclude parti es from

intervening in a proceeding where those partiesÔ

substantial interests are totally unrelated to the

issues that are to be resolved in the administrative

proceedings. Examples of parties that have been

precluded from intervening in a proceeding per this

Agrico substantial interest test are Mid -

Chattahoochee River Users and City of Sunrise [ v.

S. Fla. Water Mgmt. Dist., 615 So. 2d 746, (Fla. 4 th

DCA 1993] Ï two cases where the petitioners lacked

standing for alleging mere economic injury, and not

the kind of injury for which the proceeding was

designed to protect, namely, the protection and

conservation of water and related land sources.

263 So. 3d at 128 - 29 (citations omitted). The court found that Bluefield

RanchÔs interest was more than mere econom ic injury , in that it was

reasonably foreseeable that Bluefield RanchÔs conservation acreage could be

adversely affected by the degradation of the regional watershed and

ecosystem be cause of the selection of a purportedly unlawful mitigation

option . Bluefi eld Ranch disputed whether the other mitigation bank was

qualified to be considered for mitigation in the project area. The court noted

that Bluefield Ranch was located with the same regional watershed and

service area as the project, creating a substantia l interest in the enforcement

of statutory compliance for mitigation for the project. It stated,

An argument of potential environmental injury to

BluefieldÔs conservation acreage is reasonable

based on BluefieldÔs location within the same

regional watersh ed and mitigation service area.

That is not to say that mitigation banks within a

service area will have standing to challenge a

permit on that fact alone, but Blu efield is also

located in close proximity to the project within the

same regional watershed, and it could reasonably

be affected by the issuance of a permit to allow

Dupuis, without the statutory compliance required,

to provide mitigation in the same service area and

regional watershed. È should mitigation by Dupuis

be unlawful, it subjects the sh ared service area and

regional watershed to harm, including degradation

of the mitigation bank that Bluefield is entrusted to

protect and manage into perpetuity. Harm to the

wetlands is the injury in fact, and Bluefield has a

substantial interest in ensuri ng compliance with

the statutory scheme. Here too, it can be

reasonably argued that if anyone has the ability to

challenge FDOTÔs compliance with the Ñmust

considerÒ provision, it would be those permitted

mitigation banks like Bluefield, which seek to

chal lenge a permit that purportedly allows

unlawful mitigation within its service area and

regional watershed.

263 So. 3d at 131 - 32 (emphasis added) .

40 . Finally, Petitioner relies on Calder Race Course, Inc. v. SCF, Inc. ,

326 So. 3d 777 (Fla. 2d DCA 2021), in which the Second District reversed a

finding by an administrative law judge that the Division of Pari - Mutuel

Wagering ( PMW ) engaged in unadopted rule making when it renewed

CalderÔs slot machine gaming license for the 2019 - 2020 fiscal year. As a

backdr op to this litigation, Calder once had a seven - story Ñ grandstandÒ from

which people could view the track and wager on the races from designated

betting terminals. In 2016, Calder demolished the grandstand, and patrons

now use the Ñapron,Ò which consists of outdoor seating, wagering machines,

and other amenities, to view and bet on the races. A concrete walkway

connects the apron to CalderÔs slot machine building.

41 . In 2017, an unadopted rule challenge was filed against PMW for

failing to enforce the req uirements of section 551.114(4), Florida Statutes,

because Calder was allowed to maintain its slot machine gaming license in

the absence of the grandstand. An administrative law judge found the

renewal of the 2017 - 2018 license did not constitute an unadopt ed rule and

the O rder was not appealed. In 2018, another challenge to the renewal of

CalderÔs license was filed, and a different administrative law judge

recommended that CalderÔs application for renewal be denied, because

CalderÔs apron was not a complian t live - gaming facility and its slot machine

gaming area was not contiguous and connected to a live - gaming facility.

PMW rejected the administrative law judgeÔs conclusions of law and found

CalderÔs racetrack and viewing locations to compl y with statutory

r equirements, and the Fourth District affirmed the F inal O rder without

opinion. In August 2019, SCF filed the petition under review, challenging the

renewal of CalderÔs license s as an unadopted rule s once again. This time, the

administrative law judge issue d a F inal O rder concluding that SCF had

standing, and that PMWÔs renewal of CalderÔs licenses were unadopted rules.

42 . On appeal, the court restricted its ruling to SCFÔs standing to bring an

unadopted rule challenge related to CalderÔs license renewal. The c ourt held

that SCF had no standing to challenge the renewal and stated that no

evidence show ed any actual or likely harm to SCF based on CalderÔs renewed

license. The court distinguished SCF, Inc. v. Florida Thoroughbred BreedersÔ

Association, statin g that in that case, the statutory framework for the annual

plan for distribution of awards was specifically created to provide economic

inducements for breeders to operate successful programs in - state. In contrast ,

t he statutory framework regarding the st ructures and geographic

relationships between live gaming and slot machine gaming areas was not

set up to provide economic inducements for Florida breeders.

4 3 . After careful review of the cases cited by both Petitioner and

Intervenors, Petitioner has not established that he will or could suffer an

injury in fact as a consequence of the grant of a variance to Grow H ealthy , in

order to satisfy the first prong of the Agrico test . Instead, the injury flows

from iAnthusÔ decision to restructure, and that injury will occur whether or

not any of the Intervenors has a prohibited interest in another license holder.

In this respect, this proceeding is most like Village Park Mobile Home

Association , where the court held that any injury flowed from the possible

impleme ntation of the prospectus submitted to the agency, as opposed to the

agencyÔs approval of the prospectus itself . Similarly, in Advance Barricades ,

the injury flowed from the primary contractorÔs actions in terminating

Advance BarricadesÔ services, as oppos ed to any action by DOT. And like the

Petitioners in Mid - Chattahoochee River Users, the injuries alleged here are

not related to the issues resolved in the requested variance. PetitionerÔs

injury is the diminution of his stock value. The variance request is not

concerned with how much stock any one shareholder will possess. It is

concerned with whether the restructuring of Grow H ealthyÔs parent company

is a proposal presented to DOH that Ñcan demonstrate to the department that

it has a proposed alternative to the specific representation made it its

application that fulfills the same or a similar purpose as the specific

representation in a way that the department can reasonably determine will

not be a lower standard that the specific representation in the app lication.Ò

While the prohibition against dual ownership clearly remains in force, it is

not the possibility of dual ownership that causes PetitionerÔs alleged injury. 5

4 4 . Several of the cases cited by Petitioner do allow for standing based on

an economic injury. In each of those cases, however, the economic injury was

related to the purpose of the intended agency action. In Ybor III, the agency

action itself was the award of funds for which the litigant applied, and in

SCF, Inc. v. Florida Thoroughbred B reedersÔ Association, the agency action

was the approval of the plan for the distribution of financial awards, some of

which the litigant had been awarded historically . At the heart of both cases,

standing was based on the petitionersÔ alleged right to rec eive the funds at

issue, and the distribution of those funds was at the heart of the agency

action. Similarly, in Shands, the agencyÔs granting of new licenses for trauma

centers was statutorily conditioned on a consideration of the effect on existing

faci lities like the petitioners. And in Bluefi eld Ranch, the court focused not on

Bluefield RanchÔs economic injury, but its environmental injury.

5 Moreover, Petitioner has not cited to any authority that allows an individual shareholder of

a corporat ion, much less a shareholder of a parent corporation, to challenge the actions taken

by the corporation, outside the confines of a derivative shareholder action.

4 5 . Other cases cited by the parties also do not support PetitionerÔs

standing in this proceeding. For example, Friends of the Everglades did not

involve an economic interest at all, but rather the use of property purchased

through the CARL program that was incompatible with the use for which the

property was purchased. The injury alleged was directly related to the loss of

use of the land for its intended pur pose . Here, the value of PetitionerÔs

holdings has nothing to do with the requirements for licensure. Similarly, the

court in Calder found that the statutory framework regarding the structures

and geographic rel ationships between live gaming and slot machine gaming

areas was not set up to provide economic inducements for Florida breeders.

And finally, the hearing officer in Leonard determined that nothing in the

statutory scheme or applicable rules indicated any intent for a current

depositor or shareholder in a bank to be involved in determining whether a

proposed director should be approved. The same can be said here.

4 6 . Petitioner insists that the injury here is the type of injury that section

381.986 is des igned to protect, because of the possibility that one of the

lenders may have dual ownership of MMTCs in violation of section 381.986.

He contends, Ñthe question to be resolved is whether the proposed ownership

changes violate the prohibition against dual ownership.Ò However, as

previously stated, it is not the possible dual ownership that causes

PetitionerÔs injury. It is the addition of investors in the company, regardless

of whether they have an interest of any other entity, that serves to reduce

Petitio nerÔs share.

4 7 . Petitioner has not demonstrated that his alleged injury, the loss of

value of his share in Grow H ealthyÔs parent company, is an injury that section

381.986 was designed to protect. As a result, it is concluded that Petitioner

does not ha ve standing to contest the waiver sought by Grow H ealthy.

R ECOMMENDATION

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

R ECOMMENDED that the Department of Health enter a Final Order

dismissing PetitionerÔs Amended Petition for lack of standing.

D ONE A ND E NTERED this 3rd day of February , 2022 , in Tallahassee, Leon

County, Florida.

S

L ISA S HEARER N ELSON

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with th e Clerk of the

Division of Administrative Hearings

this 3rd day of February , 2022 .

C OPIES F URNISHED :

Stephen A. Ecenia, Esquire J. Stephen Menton, Esquire

Rutledge Ecenia, P.A. Rutledge Ece nia, P.A.

119 South Monroe Street, Suite 202 119 South Monroe Street, Suite 202

Tallahassee, Florida 3230 1 Tallahassee, Florida 3230 1

Eduardo S. Lombard, Esquire Angela D. Miles, Esquire

Radey Law Fi rm, P.A. Radey Thomas Yon & Clark, P.A.

Suite 200 Suite 200

301 South Bronough Street 301 South Bronough Street

Tallahassee, Florida 32301 Tallahassee, Florida 32301

Benjamin J. Grossman, Esquire James A. McKee, Esquire

Foley & Lardner LLP Foley & Lardner LLP

Suite 900 Suite 900

106 East College Avenue 106 Ea st College Avenue

Tallahassee, Florida 32301 Tallahassee, Florida 32301

Jason L. Unger, Esquire D. Ty Jackson, Esquire

Gray Robinson, P.A. GrayRobinson, P.A.

Suite 600 Suite 600

301 South Br onough Street 301 South Bronough Street

Tallahassee, Florida 32301 Tallahassee, Florida 3230 1

Thomas J. Morton, Esquire John M. Lockwood, Esquire

The Lockwood Law Firm The Lockwood Law Firm

Suite 810 Suite 810

106 East College Avenue 106 East College Avenue

Tallahassee, Florida 32301 Tallahassee, Flo rida 32301

Tana D. Storey, Esquire Devon Nunneley, Esquire

Rutledge Ecenia, P.A. The Lockwood Law Firm

Suite 202 Suite 810

119 South Monroe Street 106 East College Avenue

Tallahassee, Florida 32301 Tallahassee, Florida 32301

David Ashbu r n, Esquire Wanda Range, Agency Clerk

Greenburg Traurig Department of Health

101 East College Avenue 4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32301 Tallahassee, Florida 32399 - 1703

Louise St. Laurent, General Counsel Joseph A. Ladapo, M.D. , Ph.D.

Department of Health State Surgeon General

4052 Bald Cypress Way, Bin C65 Department of Health

Tallahassee, Florida 32399 4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommen ded Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.