IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIRST DISTRICT. Appellants, 1 st DCA Case No. 1D DOAH Case No.

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1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIRST DISTRICT RECEIVED, 11/8/2017 4:12 PM, Kristina Samuels, First District Court of Appeal AGENCY FOR HEALTH CARE ADMINISTRATION, AND FLORIDA DEPARTMENT OF ELDER AFFAIRS, v. Appellants, 1 st DCA Case No. 1D DOAH Case No RE FLORIDA ASSOCITATION OF HOMES AND SERVICES FOR THE AGING, INC., d/b/a LEADINGAGE, FLORIDA; FLORIDA ARGENTUM, AND FLORIDA ASSISTED LIVING ASSOCIATION, INC., A FLORIDA NOT FOR PROFIT CORPORATION, Appellees. / APPELLANTS RESPONSE IN OPPOSITION TO APPELLEES EMERGENCY JOINT MOTION TO VACATE STAY CLAIMED BY APPELLANTS Appellants, Agency for Health Care Administration ( AHCA ) and Florida Department of Elder Affairs (the Department ), pursuant to this Court s Order dated November 3, 2017, hereby file their Response in Opposition to Appellees Florida Association of Homes and Services for the Aging, Inc. d/b/a LeadingAge ( LeadingAge ) and Florida Argentum s Emergency Joint Motion to Vacate Stay Claimed by Appellants and state: 1

2 On October 31, 2017, under the claimed authority of Rule 9.310(b)(2), Florida Rules of Appellate Procedure, Appellees LeadingAge and Florida Argentum filed their Emergency Joint Motion to Vacate Stay Claimed By Appellants ( Motion ) requesting this Court to enter an emergency order vacating any applicable stay of the Final Order. Appellees Motion is an inappropriate and belated attempt to raise new substantive legal arguments under the guise of a motion to vacate a claimed automatic stay that has never actually been entered. Appellees Motion should be denied and/or stricken. This case involves consolidated challenges to emergency rules 58AER17-1 and 59AER17-1 (collectively the Emergency Rules ) adopted by AHCA and the Department to address threats to the health, safety and welfare of elderly residents in licensed facilities. The immediate need to adopt the Emergency Rules became apparent after Hurricane Irma passed through the state and many lives were lost, in part, as a result of power outages. As discussed below, this Court has already ruled upon the emergency nature of the Rules. See Case Numbers 1D , 1D , 1D Shortly after the storm passed, on September 18, 2017, pursuant to Section (4)(d), Florida Statutes, AHCA and the Department filed the Emergency Rules with the Department of State and published the requisite notices supporting the Emergency Rules in the Florida Administrative Register (the Rule Notices ). 2

3 The Rule Notices included the requisite statement of AHCA and the Department regarding their respective findings of immediate danger, necessity and procedural fairness. Following publication of the Rule Notices, Appellees LeadingAge, Florida Argentum, and Florida Assisted Living Association, Inc. ( FALA ) each filed separate Petitions for review of the Emergency Rules with this Court, pursuant to Section (4)(a)3., which provides for immediate review by this Court of the findings of immediate danger, necessity and procedural fairness. See Case Numbers 1D , 1D , 1D Each Appellee also filed Petitions with the Division of Administrative Hearings ( DOAH ) requesting a formal administrative hearing to challenge the validity of the Emergency Rules. See DOAH Case Numbers RE, RE, RE. By Order dated October 19, 2017, this Court denied all three Petitions for Review that had been filed directly with the Court pursuant to Section (4)(a)3. Thus, the findings of AHCA and the Department regarding immediate danger, necessity and procedural fairness were determined to be sufficient and in compliance with Section (4), Florida Statutes. In its October 19, 2017 Order, this Court indicated that a written decision would follow explaining the Court s reasoning. To date, the Court has not rendered its written decision. 3

4 The rule challenges filed by the Appellees at DOAH were consolidated and the final hearing held on October 12 and 13, A Final Order was rendered on October 27, 2017, which is the subject of this appeal. In the Final Order, the Administrative Law Judge ( ALJ ) erroneously assumed jurisdiction to address whether the agencies had demonstrated an immediate danger even though Appellees had already availed themselves of direct review by this Court on that issue and this Court had already determined that the agencies findings were sufficient. In fact, the ALJ gave only cursory recognition of this Court s rulings in Case Nos. 1D , 1D and 1D in erroneously finding that the Emergency Rules were invalid. On October 27, 2017, AHCA and the Department filed in the instant appeal. Because AHCA and the Department filed this appeal of the Final Order, by operation of law, the Emergency Rules remain valid and enforceable while this appeal is pending. See (3), Fla. Stat. On October 31, 2017, under the claimed authority of Rule 9.310(b)(2), Florida Rules of Appellate Procedure, Appellees filed the instant Motion requesting this Court to enter an emergency order vacating any applicable stay of the Final Order so that the Emergency Rules will be deemed invalid and unenforceable during the pendency of this appeal. Appellees seek to relieve their members from compliance with the November 15, 2017 deadline for ensuring that 4

5 the frail elderly residents in their licensed facilities will have a safe environment with ambient temperatures of 80 degrees Fahrenheit for at least 96 hours following a catastrophic loss of power as the result of a community wide crisis as required in the Emergency Rules. 1 Although the Motion is filed in the guise of a motion to vacate a claimed automatic stay, neither AHCA nor the Department have requested or claimed that an automatic stay is applicable in this case. Instead, AHCA and the Department, pursuant to the plain language of Section (3), Florida Statutes, maintain that the Emergency Rules are valid and enforceable by operation of law until this Court finally resolves the pending appeal of the Final Order. See Abbott Labs. v. Mylan Pharms., Inc., 15 So. 3d 642, 653 (Fla. 1st DCA 2009)(holding Section (3) delays the date on which a rule shall become void until after appellate proceedings have ended ); City of Palm Bay v. Dep t of Transp., 588 So. 2d 624, 628 (Fla. 1st DCA 1991)(quoting Bd. of Optometry v. Fla. Soc. of Ophthalmology, 538 So. 2d 878, 879 (Fla. 1st DCA 1988))(noting that a successfully challenged rule become[s] void and ineffective as of the date the decision of this court becomes final. ). The issue presented by Appellees Motion is a substantive legal issue of statutory interpretation not appropriate for resolution on the instant Motion. It is 1 As of the date of this Response, FALA has not joined in the Motion to Vacate, but it has filed a Motion for Rehearing En Banc in the consolidated appeals of the Petitions for Review. 5

6 particularly inappropriate to resolve the fundamental legal issues via motion since this disputed issue of law was not raised or argued in the underlying administrative hearing. Contrary to the Appellees statement that [t]he lower court refused to consider the issues raised in this motion, [see Motion, p. 3] Appellees did not timely or properly raise the issues presented in this Motion with the ALJ. After the Final Order was entered, Appellees filed a Motion for Clarification of the Final Order with DOAH in which they requested the ALJ to amend the Final Order to clarify that not only did he determine the Emergency Rules were invalid but that the Emergency Rules are void ab initio. The ALJ, recognizing he lacked jurisdiction to substantively amend the Final Order, denied the Appellees Motion. The specific issue presented in the instant Motion was therefore not presented to the ALJ below. Appellees improperly request this Court to determine in the first instance a substantive issue of law within the confines of motion practice without affording the parties an opportunity to fully and properly brief the unprecedented relief they seek. Appellees Motion is an inappropriate and belated attempt to raise new substantive legal arguments under the guise of a motion to vacate a claimed automatic stay that has never actually been entered. Appellees Motion should be denied and/or stricken. 6

7 If the Court is inclined to undertake review of the substantive legal issue presented by Appellees Motion, Appellants submit that, by operation of Section (3), the Emergency Rules remain enforceable and valid pending final resolution by this Court. Section (3) provides, in pertinent part, as follows: (3) CHALLENGING RULES IN EFFECT; SPECIAL PROVISIONS. (a) A petition alleging the invalidity of an existing rule may be filed at any time during which the rule is in effect. The petitioner has the burden of proving by a preponderance of the evidence that the existing rule is an invalid exercise of delegated legislative authority as to the objections raised. (b) The administrative law judge may declare all or part of a rule invalid. The rule or part thereof declared invalid shall become void when the time for filing an appeal expires. The agency whose rule has been declared invalid in whole or part shall give notice of the decision in the Florida Administrative Register in the first available issue after the rule has become void. [Emphasis added.] In Abbott Labs. v. Mylan Pharms., Inc., 15 So. 3d 642, 653 (Fla. 1st DCA 2009), this Court interpreted Section (3) as delaying the date on which a rule shall become void until after appellate proceedings have ended. Appellees do not dispute that Section (3) declares that the invalidation of adopted rules does not take effect until the time for appeal has expired nor do they cite to any authority that contravenes or overrules Abbott as to how the statute is applied when an appeal is filed. Instead, Appellees contend as a matter of first impression and without any explicit legal precedent, that Section (3) does 7

8 not apply to emergency rules. The question of whether Section (3) applies to emergency rules is purely an issue of statutory interpretation which should not be resolved via an emergency motion. When construing statutes, this Court is constrained to afford the statutory language its plain and ordinary meaning and is not at liberty to place words not adopted by the Legislature. See Exposito v. State of Florida, 891 So. 2d 525, 528 (Fla. 2004). The plain language of Section (3) supports the application of that section to emergency rules. Nowhere on the face of Section (3) does the Legislature indicate an intent that the use of the term rules in effect does not include emergency rules. Emergency rules are enacted pursuant to Section (4), Florida Statutes, which authorizes an agency to adopt a rule by any procedure which is fair under the circumstances if an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action. In Chapter 120, the general term rule is defined in Section (16), in pertinent part, as: each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. When a term is not defined in statute, the courts may apply the common and ordinary meaning. See Metro. 8

9 Dade Cnty. v. Milton, 707 So. 2d 913, 915 (Fla. 3d DCA 1998). Section (3) applies to challenges to rules in effect. Effect is defined as the quality or state of being operative. See Merriam-Webster on-line dictionary, (last visited 11/6/17). Emergency rules are effective and operative when filed with the Department of State and remain operative for ninety days. See (4)(c) and (d), Fla. Stat. Applying the plain and ordinary meaning of rule in effect, emergency rules clearly fall within the parameters of Section (3). Appellees contention that this Court s reasoning in Abbott, interpreting Section (3) as delaying the date on which a rule shall become void until after appellate proceedings have ended does not apply to emergency rules, is not supported by the language of the statue or the case law. Appellees argument contravenes the holding in Abbott where this Court stated as follows: Abbott argues that the plain language of section (3)(b) states that the rule becomes void if the time for filing an appeal expires. Thus, if an appeal is filed, the time for filing an appeal does not expire and the statute does not apply. We agree. As this court recognized in State Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878, 889 (Fla. 1st DCA 1988): The statutory scheme [of section (3) ] is obviously intended to avoid the chaotic uncertainty that would necessarily flow from retroactively invalidating agency action taken in reliance on the presumed validity of its rule prior to a proper rule challenge proceeding holding the rule invalid. Applying the underlying section 9

10 120.56(3) to this case, we hold that rule 21Q , which was held invalid by the hearing officer and our opinion, will become void and ineffective as of the date the decision of this court becomes final. (Emphasis added). Thus, section (3) delays the date on which a rule shall become void until after appellate proceedings have ended. To interpret this statute in any other manner would deny a party the right to appellate review of an ALJ order invalidating a rule in the absence of a stay. Such a result is not supported by any authority. [Underlined emphasis added.] Id. at 653. Citing to Section (5) and (4), Appellees claim this reasoning is not applicable to emergency rules because emergency rules have not been in effect for years and do not have the same presumption of validity. To the contrary, neither (5) nor (4) require a result different than this Court s holding in Abbott. Generally, rules in effect are presumed valid. Even though emergency rules are in effect for a short while and promulgated pursuant to emergency procedures, they are promulgated to address critical concerns about the health, safety, and welfare of Florida s citizens, and as such there is an even more compelling public policy for their remaining effective and the law of the state unless and until invalidated by a court. See (4)(d), Fla. Stat. Appellees argument would invest administrative law judges, who are employees of the executive branch, with powers commensurate with Article V judges to invalidate the actions of government agencies. This profound modification of the separation of powers should not be done on an ad hoc basis. The reasoning in Abbott 10

11 regarding the confusion that would necessarily flow from retroactively invalidating agency action taken in reliance on the presumed validity of its rule is applicable to emergency rules. The State and many assisted living facilities and nursing homes have relied on the emergency rules and begun to come into compliance. Appellees cite to no case law that would support a contrary result. 2 WHEREFORE, Appellants hereby request that this Court deny and/or strike Appellees unauthorized and improper Emergency Joint Motion to Vacate Stay Claimed by Appellants. In the alternative, if this Court is inclined to decide the substantive legal issue presented therein, that the Court enter an Order holding that the Emergency Rules are valid and enforceable during the pendency of this appeal by operation of Section (3), Florida Statutes. 2 Appellees cite to James Newberry, Jr. v. Board of Orthotists and Prosthetists, 1998 WL (DOAH Case Nos RE, challenge to emergency rules, and , determination of attorneys fees). Newberry is nothing more than a lone decision by an administrative law judge entered almost twenty years ago and has no precedential value in this case. The issue addressed in Newberry was not whether an appeal of a Final Order invalidating an emergency rule delays the date the rules becomes void as in this case. In fact, there was no appeal at all involved in that case. Further, since Newberry was decided, Section (3), was amended to clarify the title to evidence its applicability to rules in effect. See 3, Ch , Laws of Florida. Lastly, Newberry has a very different procedural posture than the instant case where the issue of whether the agencies findings of immediate danger, necessity and procedural fairness had already been upheld by this Court prior to the entrance of the Final Order. Appellee s reliance on Newberry is misplaced. 11

12 Respectfully submitted, RUTLEDGE ECENIA, P.A. /s/ Stephen A. Ecenia Stephen A. Ecenia Florida Bar No J. Stephen Menton Florida Bar No Tana D. Storey Florida Bar No Craig D. Miller Florida Bar No South Monroe Street, Suite 202 Tallahassee, FL (850) / (850) Fax steve@rutledge-ecenia.com smenton@rutledge-ecenia.com tana@rutledge-ecenia.com cmiller@rutledge-ecenia.com Counsel for Appellants CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Response was served via on the following parties this 8th day of November, 2017: Sean Frazier Marc Ito Parker, Hudson, Rainer & Dobbs 215 South Monroe St., Suite 750 Tallahassee, FL sfrazier@phrd.com mito@phrd.com Counsel for Appellee LeadingAge Amy W. Schrader Kelly Overstreet Johnson Baker Donelson Suite North Monroe Street Tallahassee, FL aschrader@bakerdonelson.com lterry@bakerdonelson.com kjohnson@bakerdonelson.com calford@bakerdonelson.com Counsel for Appellee FL Argentum 12

13 M. Stephen Turner Frank P. Rainer John P. Loar Broad and Cassel LLP 215 S. Monroe Street, Suite 400 Tallahassee, FL Counsel for Appellee FALA /s/ Stephen A. Ecenia Stephen A. Ecenia 13