                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

DANIEL R. FERNANDEZ and              NOT FINAL UNTIL TIME EXPIRES TO
DAX J. LONETTO, SR., PLLC,           FILE MOTION FOR REHEARING AND
                                     DISPOSITION THEREOF IF FILED
      Appellants,
                                     CASE NO. 1D16-0050
v.

DEPARTMENT OF HEALTH,
BOARD OF MEDICINE,

      Appellee,

and

BACTES IMAGING
SOLUTIONS, INC., and
HEALTHPORT
TECHNOLOGIES, LLC,

      Intervenors.

_____________________________/

Opinion filed April 11, 2017.

An appeal from an order of the Division of Administrative Hearings.

David M. Caldevilla and Nicolas Q. Porter of de la Parte & Gilbert, P.A., Tampa;
and Scott R. Jeeves, St. Petersburg, for Appellants.

Pamela Jo Bondi, Attorney General, Marlene K. Stern and Edward Tellechea,
Assistant Attorneys General, Tallahassee, for Appellees.

Michael Fox Orr and Amanda E. Ferrelle, Jacksonvile, for Intervenor Bactes
Imaging Solutions, Inc.
Dan R. Stengle, Tallahassee, for Intervenor HealthPort Technologies, LLC.



BILBREY, J.

      Appellants, petitioners below, appeal the Administrative Law Judge’s final

order which held that the adopted but not yet ratified amendment to rule 64B8-

10.003, Florida Administrative Code, was not an invalid exercise of the legislative

authority delegated to the Department of Health, Board of Medicine. Appellants

fail to establish that the adopted amendment, and therefore this appeal, are moot. 1

Appellants also fail to establish any ground under section 120.68(7), Florida

Statutes, upon which the ALJ’s final order must be set aside and remanded for

further agency action. Because the ALJ correctly determined that the amendment

was within the Board’s rulemaking authority, we affirm the order.

      The rule 64B8-10.003 which is currently in effect, titled “Costs of

Reproducing Medical Records,” provides that licensed physicians may charge

patients and governmental entitles “the reasonable costs of reproducing copies of

written or typed documents or reports” not to exceed $1.00 per page for the first 25

pages, and not to exceed 25 cents per page in excess of 25 pages. Other entities

requesting copies of such documents may be charged up to $1.00 per page


1
 Appellants raised the issue of mootness by a motion and in their briefs. However,
Appellants never dismissed their appeal as allowed by rule 9.350(b), Florida Rules
of Appellate Procedure.
                                        2
regardless of the number of pages. The adopted but not yet ratified amendment to

rule 64B8-10.003 eliminates the reduction in costs for pages in excess of 25 pages

requested by patients and government entitles, setting the price ceiling of $1.00 per

page for all pages for all requestors. The Board’s legislative authority to enact and

amend the rule is granted by sections 456.057(17) and 458.309, Florida Statutes.

      Starting with the first notice published in the Florida Administrative Register

on October 30, 2012, the Board conducted rulemaking proceedings pursuant to

section 120.54, Florida Statutes.     Following the requisite notices, the Board

conducted ten public hearings and received written and oral comments from

multiple interested parties. On March 4, 2015, at the tenth public hearing, the

Board determined that the amendment would increase regulatory costs to such an

extent that a revised statement of estimated regulatory costs (SERC) was necessary

and that in order for the amendment to take effect legislative ratification was

required. See § 120.541(2)-(3), Fla. Stat.

      The revised SERC and changes to the proposed rule amendment based on

comments and testimony received at the public hearings were noticed and

published on March 12, 2015. Appellants each filed their petitions for

administrative hearing on March 31, 2015. After the final administrative hearing,

the ALJ’s final order was entered December 8, 2015.

      Thereafter, the Board submitted the proposed amendment to the President of

                                         3
the Senate and Speaker of the House of Representatives with a request for

legislative ratification during the 2016 legislative session. See § 120.541(3), Fla.

Stat. The Board also filed the rule amendment with the Department of State for

adoption, pursuant to section 120.54(3)(e), Florida Statutes. Pursuant to section

120.541(3), however, even though adopted, the amendment to rule 64B8-10.003

could not “take effect until it is ratified by the Legislature.”

      The rule amendment was not ratified during the 2016 legislative session, but

the Board has not taken any action to withdraw the amendment to date.

Accordingly, the amendment is currently adopted, but not effective.         See §§

120.54(3)(d)3., Fla. Stat. (governing modification and withdrawal of rules at

various procedural stages); 120.54(3)(e)5.-6., Fla. Stat. (requiring withdrawal if

rule not adopted within time limits; setting separate times at which a rule is

“adopted” and when “effective.”).

      We first address the status of the adopted amendment to the rule and whether

the amendment and therefore this appeal of the ALJ’s order is moot due to the lack

of legislative ratification of the amendment as required by section 120.541(3),

Florida Statutes (2016). The issue is whether, as argued by Appellants, the failure

of the Legislature to ratify the proposed amendment during the 2016 legislative

session, and thus the failure of the amendment to become “effective,” renders the

amendment “dead” and the appeal of the ALJ’s order moot due to the expiration of

                                            4
statutory time limits for adoption and effectiveness of the rule. We hold that the

failure of ratification in the 2016 legislative session does not put an end to the

rulemaking proceedings for the amendment here and does not render this appeal

moot.

        The failure of the Legislature to take up the Board’s request for ratification

of the amended rule upon its submission to the President of the Senate and Speaker

of the House does not preclude ratification in future legislative sessions. Although

section 120.541(3) is a fairly recent statute — adopted in 2010 — renewals of

other rule ratification requests which carried over to successive years’ legislative

sessions have already occurred. See Eric H. Miller and Donald J. Rubottom,

Legislative Rule Ratification: Lessons from the First Four Years, 89 Fla. Bar J. 36,

40 (February 2015).       For instance, a Department of Financial Services rule

adopting a workers’ compensation provider reimbursement manual was first

submitted for legislative ratification under section 120.541(3) in the 2012 session,

but was not considered by the Legislature during that session. A House Bill to

ratify the workers’ compensation rule was filed for the 2013 session, but was again

not considered. Miller & Rubottom, supra, at 38. The Department renewed its

request for ratification of the rule and re-submitted it to the Speaker of the House

for the 2014 session, but the Legislature again did not consider legislation ratifying




                                           5
the rule. Id. at 38. Finally, the rule was withdrawn in 2015. 2 Fla. Admin. Code R.

69L-7.020. Clearly, the fact that the rule was not ratified on the first attempt in

2012 did not “kill” the proposed rule amendment and end the Department’s ability

to renew the request for ratification in subsequent sessions.

       The Board is also not required to withdraw the proposed rule due to the lack

of ratification to date.      Section 120.54(3)(d), Florida Statutes, addresses

modification and withdrawal of proposed rules. For a rule that is adopted but not

ratified, the Board has the option of withdrawing the rule but is not required to do

so. § 120.54(3)(d)3.c., Fla. Stat. Appellants would improperly read into the statute

a deadline for ratification and a requirement for withdrawal if a rule was not

ratified during the legislative session during which it was submitted. There are

statutory deadlines for submission of a rule to the President of the Senate and

Speaker of the House for ratification, but no deadline for the Legislature to act

upon a rule submitted for ratification. See § 120.541(3), Fla. Stat. 3 Likewise there

is no statutory requirement for the Board to withdraw a rule which has been

adopted but not ratified. A subsequent Legislature could decide to ratify the rule.

Thus, the procedural posture of the rule amendments here does not render this

2
 A subsequent rule was ratified in 2016. See Ch. 2016-203, Laws of Florida.
3
  Our holding is also consistent with the principle that the current Legislature
cannot “bind the hands” of future Legislatures. See Neu v. Miami Herald Pub.
Co., 462 So. 2d 821, 824 (Fla. 1985); Scott v. Williams, 107 So. 3d 379, 389 (Fla.
2013); Florida Carry, Inc. v. University of Florida, 180 So. 3d 137, 146 (Fla. 1st
DCA 2015).
                                         6
appeal moot.

      Considering the merits of the challenge to the ALJ’s order, Appellants fail to

establish any erroneous interpretation or application of law in the ALJ’s ruling that

the rule amendment was not an “invalid exercise” of the Board’s delegated

legislative authority, as defined in section 120.52(8), Florida Statutes. Nothing in

the record of these extensive rulemaking proceedings shows that the Board failed

to follow applicable rulemaking procedures or exceeded its rulemaking authority

under sections 456.004(1) and 456.057(17), Florida Statutes. There has been no

showing that the rule is vague or that it vests unbridled discretion in the Board.

The ALJ’s conclusion that the evidence “fails to establish that the proposed rule is

an invalid exercise of delegated legislative authority, or is arbitrary or capricious as

those terms are defined by section 120.52(8),” is clearly supported by the

voluminous record of the multiple public hearings and Board meetings over the

years of these rulemaking proceedings.

      Finally, we find no basis to set aside the ALJ’s final order on the other two

issues raised by the Appellants and affirm without further comment.

      Accordingly, the adopted rule 64B8-10.003 — although not effective — is

still subject to ratification by the Legislature unless the rule is withdrawn. This

appeal of the ALJ’s final order is not moot, and the ALJ’s final order is affirmed.

      AFFIRMED.

                                           7
WETHERELL and JAY, JJ., CONCUR.




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