         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2463
                 _____________________________

ORLANDO HEALTH CENTRAL,
INC.,

    Appellant,

    v.

AGENCY FOR HEALTH CARE
ADMINISTRATION, ADVENTIST
HEALTH SYSTEM/SUNBELT, INC.,
d/b/a Florida Hospital, and
CENTRAL FLORIDA HEALTH
SERVICES, LLC,

    Appellees.
                 _____________________________


On appeal from Division of Administrative Hearings.
Yolanda Y. Green, Administrative Law Judge.

                        August 3, 2018


B.L. THOMAS, C.J.

     This appeal concerns a rule challenge to the procedure
through which healthcare providers apply for and challenge the
award of a Certificate of Need, a written statement “evidencing
community need for a new, converted, expanded, or otherwise
significantly modified health care facility, health service, or
hospice.” § 408.032(3), Fla. Stat. (2017). The Agency for Health
Care Administration is responsible for issuing or denying
Certificates, and has adopted rules to implement the program.
§ 408.033(3), Fla. Stat. (2017); Chapter 59C, Fla. Admin. Code
(2017).
     The Agency accepts and considers Certificate applications in
“batching cycles,” in which all applications seeking approval for
the same type of healthcare facility or expansion are subject to
“comparative review.” § 408.039, Fla. Stat. (2017). When review
is complete, the Agency issues a State Agency Action Report or
Notice of Intent stating whether it will grant or deny each
application, and this notice is published in the Florida
Administrative Register. Id.
    Section 408.039(5)(c), Florida Statutes, states that applicants
in the same batching cycle are entitled to a “comparative
hearing” on their applications, in which the Agency
comparatively reviews all pending applications. Section
408.039(5)(a) provides that applicants in the same batching cycle
must request the hearing within twenty-one days from
publication of the Notice of Intent or State Agency Action Report.
     In 1992, the Agency promulgated a rule, which states in
pertinent part:

    If a valid request for administrative hearing is timely
    filed challenging the noticed intended award of any
    certificate of need application in the batch, that
    challenged granted applicant shall have ten days from
    the date the notice of litigation is published in the
    Florida Administrative Register to file a petition
    challenging any or all other cobatched applications.

Fla. Admin. Code R. 59C-1.012(2)(a) (2017).
    The 1997 Legislature enacted section 408.0455, Florida
Statutes, which read as follows:
    Rules; pending proceedings.—The rules of the agency in
    effect on June 30, 1997, shall remain in effect and shall
    be enforceable by the agency with respect to ss. 408.031-
    408.045 until such rules are repealed or amended by the
    agency, and no judicial or administrative proceeding
    pending on July 1, 1997, shall be abated as a result of
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    the provisions of ss 408.031-408.043(1) and (2); s.
    408.044; or s. 408.045.
Ch. 97-270, § 9, at 19, Laws of Fla. In 2004, section 408.0455 was
amended in relevant part as follows:
    Rules; pending proceedings.—The rules of the agency in
    effect on June 30, 2004 1997, shall remain in effect and
    shall be enforceable by the agency with respect to ss.
    408.031-408.045 until such rules are repealed or
    amended by the agency, and no judicial or
    administrative proceeding pending on July 1, 1997, shall
    be abated as a result of the provisions of ss 408.031-
    408.043(1) and (2); s. 408.044; or s. 408.045.
Ch. 2004-838, § 12, at 26, Laws of Fla.
    The statute today reads as it did after the 2004 reenactment.
§ 408.0455, Fla. Stat. (2017).
      Appellant, Orlando Health Central, Inc., holds the license for
Health Central Hospital, a not-for-profit, full-service Class I
general hospital in Orange County. Appellee Adventist Health
System/Sunbelt, Inc., d/b/a Florida Hospital (“Florida Hospital,”
intervenor below), is a not-for-profit, full-service, Class I general
hospital with seven campuses located throughout the greater
Orlando area. Appellee Central Florida Health Services, LLC
(“CFHS,” intervenor below), is a developmental-stage entity
affiliated with Hospital Corporation of America, North Florida
Division.
    On September 7, 2016, all three entities submitted
Certificate of Need applications to establish new hospitals in
Orange County.     The three parties were “co-batched” and
comparatively reviewed.
    On December 2, 2016, the Agency issued its State Agency
Action Report and Notice of Intent to simultaneously approve the
applications of Appellee Florida Hospital and Appellee CFHS.
Thus, the twenty-one-day window in which co-batched applicants
could request an administrative hearing under section
408.039(5)(a), Florida Statutes, closed on December 27, 2016.
Within that twenty-one-day window, Florida Hospital filed a

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request for hearing to contest the intended approval of CFHS’
application, and Appellant filed a request for hearing to contest
the intended approval of Florida Hospital’s application.
     On January 5, 2017, CFHS filed a petition contesting the
approval of Florida Hospital’s application, and on January 11,
2017, Florida Hospital filed a petition challenging Appellant’s
application. Though these petitions were filed outside the
twenty-one-day window established by section 408.039, the
petitions were filed within ten days of the notice of a challenge by
a co-batched applicant, and were purportedly timely filed under
rule 59C-1.012(2)(a).
     On March 30, 2017, Appellant filed a Petition to Determine
the Invalidity of Existing Rule, arguing that rule 59C-1.012(2)(a)
was an invalid exercise of delegated legislative authority, in
violation of section 120.52(8)(b-c), Florida Statutes.     In its
summary final order, the Administrative Law Judge concluded
that rule 59C-1.012(2)(a) exceeded the Agency’s delegated
legislative authority by granting challenged applicants an
additional ten days to request a comparative hearing. Despite
this conclusion, however, the Administrative Law Judge
determined that the legislature had authorized and adopted the
Agency’s administrative interpretation of the applicable statutes,
including section 408.039, because section 408.0455 states that
the Agency’s rules that were in effect on June 30, 2004, are to
remain in effect and enforceable until the Agency amends or
repeals them.
     The order concluded that the legislature is presumed to
know of all prior administrative constructions              and
interpretations of a law it reenacts.         Because a 2002
administrative decision determined that section 408.0455 “in
essence, ratified” rule 59C-1.012(2)(a), and because the
legislature amended section 408.0455 in 2004, retaining the
“saving” language in question, the order determined that section
408.0455 ratifies rule 59C-1.012(2)(a).
                             Analysis
     Because this issue presents a pure question of law, this court
reviews the order of the lower tribunal de novo. Sw. Fla. Water


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Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So. 2d 594, 597
(Fla. 1st DCA 2000).
      A reviewing court’s “statutory analysis begins with the plain
meaning of the actual language of the statute, as we discern
legislative intent primarily from the text of the statute.”
Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 367
(Fla. 2013). “If statutory language is ‘clear and unambiguous and
conveys a clear and definite meaning, there is no occasion for
resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious
meaning.’” Id. (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla.
1984)). Appellant argues that, although section 408.0455 ensures
the rules at issue “remain in effect and . . . enforceable . . . until
. . . repealed or amended by the agency,” this statute does not
grant those rules immunity to challenges under section 120.56,
Florida Statutes.
     Chapter 120 does not define “enforceable,” and only uses a
variant of the term in section 120.536, when discussing rules of
“uncertain enforceability.” § 120.536(2)(c), Fla. Stat. (2017).
Section 120.536(2)(c) states that if the repeal of law creates doubt
as to whether a rule is enforceable, the Department of State shall
treat the rule as provided by section 120.555, Florida Statutes.
In turn, section 120.555 states that, if the Department of State
doubts whether a rule “is still in full force and effect,” it shall
request a determination from the administering agency or the
Governor as to whether the rule “is in full force and effect.”
§ 120.555(1)-(2), Fla. Stat. (2017). Failure to respond to such
request constitutes an acknowledgement that the rule is “no
longer in effect,” and the agency or Governor must also publish a
notice of repeal if the rule is deemed to be “no longer in effect.”
§ 120.555(2),(4), Fla. Stat. (2017).       A rule’s enforceability
ultimately turns on the administering entity’s determination of
whether the rule is “in effect,” a phrase used interchangeably
with “in force” and “enforceable” in section 120.555. As rules “in
effect” are still subject to challenge pursuant to section




                                  5
120.56(3), * it follows that “enforceable” rules are also subject to
challenge.
     Appellant thus persuasively argues that a legislative
mandate that certain rules are “in effect” does not render them
immune from section 120.56 challenges; this would likely resolve
this issue in Appellant’s favor, if not for the legislature’s 2004
reenactment of section 408.0455 and presumptive adoption of
prior administrative constructions of its language. “When the
legislature reenacts a statute, it is presumed to know and adopt
the construction placed thereon by courts or administrators,
except to the extent to which the new enactment differs from
prior constructions.” Peninsular Supply Co. v. C.B. Day Realty of
Fla., Inc., 423 So. 2d 500, 502 (Fla. 3d DCA 1982); accord Cole
Vision Corp. v. Dep’t of Business & Prof’l Regulation, Bd. of
Optometry, 688 So. 2d 404, 408 (Fla. 1st DCA 1997) (citing
Peninsular Supply Co., 423 So. 2d at 502)); see also State ex rel.
Szabo Food Servs., Inc. of N.C. v. Dickinson, 286 So. 2d 529, 531
(Fla. 1973) (holding that “[w]hen the Legislature reenacts a
statute, it is presumed to know and adopt the construction placed
thereon by” administrators).
     In 2002, the specific issue of “[w]hether Section (2) of Rule
59C-1.012, Florida Administrative Code . . . constitutes an invalid
exercise of delegated legislative authority” was addressed in
Southern Baptist Hospital of Florida, Inc. v. Agency for Health
Care Administration. Case No. 02-0575RX at 2 (DOAH Apr. 30,
2002). In Southern Baptist Hospital, the Administrative Law
Judge analyzed the 1997 iteration of section 408.0455, which
contained language identical to the current version, providing
that the relevant rules were “in effect” and “enforceable” until
repealed by the Agency. Id. at 33. The Administrative Law
Judge concluded that any argument as to whether rule 59C-
1.012(2)(a) exceeded delegated authority was immaterial, as the
legislature, through section 408.0455, “ratified, validated and
declared saved the Rule and its Section (2) . . . .” Id. at 34.


    * “A petition alleging the invalidity of an existing rule may be
filed at any time during which the rule is in effect.”
§ 120.56(3)(a), Fla. Stat. (2017).

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    When the legislature reenacted section 408.0455 in 2004
without altering the “saving” language at issue here, it did so
while presumptively adopting this construction of the language in
Southern Baptist Hospital, and therefore “ratified, validated and
declared saved” rule 59C-1.012(2)(a). Thus, despite Appellant’s
persuasive argument, the legislature adopted the opposite
construction with its 2004 reenactment. Appellant’s argument
that section 408.0455 does not “save” rule 59C-1.012(2)(a) must
therefore fail.
    AFFIRMED.
ROWE and M.K. THOMAS, JJ., concur.


                   _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
                _____________________________


Karen A. Putnal and Jon C. Moyle of Moyle Law Firm, P.A.,
Tallahassee, for Appellant.

Tracy Cooper George, Chief Appellate Counsel, and Amy E.
Miles, Senior Attorney, Agency for Health Care Administration,
Tallahassee, for Appellee Agency for Health Care Administration.

Tiffany A. Roddenberry and Jerome W. Hoffman of Holland &
Knight LLP, Tallahassee, for Appellee Adventist Health
System/Sunbelt, Inc., d/b/a Florida Hospital.

Stephen A. Ecenia, Tana D. Storey, Craig D. Miller, and Jennifer
F. Hinson of Rutledge Ecenia, P.A., Tallahassee, for Appellee
Central Florida Health Services, LLC.




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