         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D17-1713
                  _____________________________


DEPARTMENT OF HEALTH and
THE PUBLIC HEALTH TRUST OF
MIAMI-DADE COUNTY, FLORIDA,
d/b/a    JACKSON     SOUTH
COMMUNITY HOSPITAL,

    Appellants,

    v.

SHANDS JACKSONVILLE MEDICAL
CENTER, INC., d/b/a UF HEALTH
JACKSONVILLE, JFK MEDICAL
CENTER LIMITED PARTNERSHIP,
d/b/a JFK MEDICAL CENTER;
ORANGE PARK MEDICAL CENTER,
INC., d/b/a     ORANGE    PARK
MEDICAL      CENTER;    FLORIDA
HEALTH SCIENCES CENTER, INC.,
d/b/a TAMPA GENERAL HOSPITAL;
LEE MEMORIAL HEALTH SYSTEM,
d/b/a LEE MEMORIAL HOSPITAL;
BAYFRONT      HMA      MEDICAL
CENTER, LLC, d/b/a BAYFRONT
HEALTH-ST. PETERSBURG, and
ST. JOSEPH’S HOSPITAL, INC.,
d/b/a ST. JOSEPH’S HOSPITAL,

    Appellees.
                  _____________________________

                          No. 1D17-1717
                  _____________________________

JFK MEDICAL CENTER LIMITED
PARTNERSHIP d/b/a JFK MEDICAL
CENTER; ORANGE PARK MEDICAL
CENTER, INC., d/b/a ORANGE
PARK MEDICAL CENTER, and THE
PUBLIC HEALTH TRUST OF MIAMI-
DADE COUNTY, FLORIDA, d/b/a
JACKSON SOUTH COMMUNITY
HOSPITAL,

    Appellants,

    v.

SHANDS JACKSONVILLE MEDICAL
CENTER, INC., d/b/a UF HEALTH
JACKSONVILLE, DEPARTMENT OF
HEALTH,      FLORIDA HEALTH
SCIENCES CENTER, INC., d/b/a
TAMPA GENERAL HOSPITAL, LEE
MEMORIAL HEALTH SYSTEM d/b/a
LEE     MEMORIAL     HOSPITAL,
BAYFRONT      HMA      MEDICAL
CENTER, LLC, d/b/a BAYFRONT
HEALTH-ST PETERSBURG, and ST.
JOSEPH’S HOSPITAL, INC., d/b/a
ST. JOSEPH’S HOSPITAL,

    Appellees.
                  ___________________________

On appeal from the Division of Administrative Hearings.
Garnett W. Chisenhall, Administrative Law Judge.

                       November 13, 2018


                               2
PER CURIAM.

     These two appeals 1 seek review of an administrative order
that found proposed rules of the Department of Health (“the
Department”) for allocating the minimum number of trauma
centers throughout the state to be an invalid exercise of delegated
legislative authority. This case ultimately revolves around the
Department’s interpretation of the word “need,” a term undefined
by the applicable statutes. 2 Under the prior rules, the Department
interpreted the number of trauma centers “needed” as a maximum.
In the proposed rules, the Department sought to reflect its new
interpretation that the number “needed” was a minimum, rather
than a maximum. The Department asserts the “sub-cap” it created
by promulgating maximums was not within its delegated statutory
authority. Because the term “need” is ambiguous as to whether it
refers to a maximum or minimum, and the Department’s
interpretation is given deference when it is within the range of
reasonable interpretations, we agree and reverse.

                         BACKGROUND

     In 1985, the Legislature established a statewide trauma
system. The law governing the administration of the trauma
system is set forth in Part II of Chapter 395, Florida Statutes. In
order to provide timely access and uniformity in trauma care, the
state was divided into nineteen Trauma Service Areas (“TSAs”),
each of which should provide at least one Level I or II trauma
center, §§ 395.402(4)(a) & (b), Fla. Stat. (2016). However, the
Legislature determined there should be no more than a total of 44
trauma centers within the State. § 395.402(4)(c), Fla. Stat. (2016).



    1 The appeals at issue were consolidated for travel and are
now consolidated for disposition.
    2  The Legislature substantially amended the applicable
statutes in this case, in particular sections 395.402 and 395.4025,
after oral argument. The effect of this amendment is discussed
below. Unless otherwise indicated, the statutory citations listed
here refer to the 2016 version of these statutes.

                                 3
     Beyond these statutory guidelines, the primary responsibility
for planning, establishing, and implementing the trauma system
was delegated to the Department. § 395.40(3), Fla. Stat. To ensure
an integrated trauma system across the state, the Department
conducted an annual assessment to determine how many trauma
centers were needed. § 395.402(2)(b), Fla. Stat. (2016). Based on
the results of this assessment, the Department “allocate[d], by
rule, the number of trauma centers needed for each [TSA].”
§ 395.402(4)(b), Fla. Stat. (2016).

    In 2014, the Department promulgated rules (the “Old Rules”)
implementing a scoring system to determine how many trauma
centers were needed per TSA. See Fla. Admin. Code R. 64J-2.010.
Based on the resulting scores, the Department assigned a
maximum number of trauma centers for each TSA.

     After implementation of this criteria, the Department found
that with each new trauma center, the associated TSA’s assessed
need would be reduced for the following year. Concerned that this
could potentially lead to TSAs with a maximum “need” of zero, the
Department sought to initiate rulemaking to revise the rules to
provide that the scores should be considered a minimum rather
than a maximum.

     On September 1, 2016, the Department proposed the series of
amendments to rules 64J-2.010, 64J-2.012, 64J-2.013, and 64J-
2.016 (the “Proposed Rules”). The Proposed Rules utilized the same
methodology for assessing the numerical need for trauma centers
in each TSA but resulted in the approval of a minimum of 25
trauma centers. The rules also created a “tie-breaker” system in
the event the number of trauma center applicants or provisional
trauma centers would cause the state to exceed the statutory cap.

    Appellees 3 filed rule challenge petitions asserting, among
other things, that the Proposed Rules exceeded the Department’s

    3The following entities challenged the validity of the Proposed
Rules in a consolidated proceeding: Shands Jacksonville Medical
Center, Inc. d/b/a UF Health Jacksonville (“Shands”), Florida
Health Sciences Center, Inc. d/b/a Tampa General Hospital
(“Tampa General”), Lee Memorial Health System d/b/a Lee
Memorial Hospital (“Lee Memorial”), Bayfront HMA Medical
                                4
rulemaking authority; enlarged, modified, or contravened the laws
being implemented; or vested the Department with unbridled
discretion.

     At the final hearing on this matter, the Department’s
representative was asked a number of hypothetical questions
regarding the trauma centers approval process under the Proposed
Rules. In a situation where there were 43 approved trauma
centers in the state but one TSA did not have a Level I or II trauma
center, the Department stated it would hold the 44th spot open for
the TSA without a trauma center. It further represented the same
outcome would occur if there were 43 approved centers and one
TSA had not reached its minimum under the Proposed Rules.

     The Administrative Law Judge (“ALJ”) held that while the
Department did not exceed its grant of rulemaking authority and
the proposed rules were not arbitrary or capricious, the rules
contravened the laws being implemented and vested unbridled
discretion in the Department.

                           MOOTNESS

     After oral argument in this case, the Legislature substantially
amended sections 395.402 and 395.4025. Ch. 2018-66, Laws of
Florida. As stated above, under prior statutes the Department was
tasked with “allocat[ing], by rule, the number of trauma centers
needed for each trauma service area.” § 395.402(4)(b), Fla. Stat.

Center, LLC d/b/a Bayfront Health – St. Petersburg (“Bayfront”),
St. Joseph’s Hospital Inc., d/b/a St. Joseph’s Hospital (“St.
Josephs,”). Each of these parties operates a trauma center.

     The following entities intervened in this proceeding on behalf
of the Department: JFK Medical Center Limited Partnership,
d/b/a JFK Medical Center (“JFK”), The Public Health Trust of
Miami-Dade County, Florida d/b/a Jackson South Community
Hospital (“Public Health Trust”), Orange Park Medical Center,
Inc. d/b/a Orange Park Medical Center (“Orange Park”). JFK and
Public Health Trust submitted letters of intent to apply to operate
as a trauma center; Orange Park already operates a provisional
trauma center.

                                 5
(2016). See also § 395.4025(1), Fla. Stat. (2016) (requiring that “the
department shall establish the approximate number of trauma
centers needed to ensure reasonable access to high-quality trauma
services”). However, under these statutes as revised in 2018, the
Legislature itself now provides the maximum number of trauma
centers for each service area. § 395.402(1)(c), Fla. Stat. (2018). No
longer does the Department have the authority to select or
establish the appropriate number of trauma centers. § 395.4025(1),
Fla. Stat. (2018). The new statutes prohibit the Department from
approving trauma centers—or even accepting letters of intent—for
service areas that have already met the new statutory maximums,
absent certain extenuating circumstances. § 395.4025(3) & (4), Fla.
Stat. (2018). In other words, the entire statutory basis for the
Proposed Rules at issue in this case has been repealed.

     We find that the rule challenge here is moot. See Montgomery
v. Dep’t of Health & Rehab. Servs., 468 So. 2d 1014 (Fla. 1st DCA
1985). “A moot case generally will be dismissed.” Godwin v. State,
593 So. 2d 211, 212 (Fla. 1992). However, a moot appeal will not
be dismissed if any of three exceptions apply: (1) the issues are of
great public importance; (2) the issues are likely to recur; and (3)
collateral legal consequences flow from the issues to be resolved
that may affect the rights of a party. Schweickert v. Citrus County
Florida Bd., 193 So. 3d 1075, 1078 (Fla. 5th DCA 2016). At the
least, collateral consequences of this case that may affect the rights
of a party exist, regardless of the mootness of the Proposed Rule,
in particular, the challengers’ right to attorney’s fees under section
120.595(2), Florida Statutes. This possible right to attorney’s fees
is sufficient for this court to decide this case in spite of it mootness.
See Soud v. Kendale, Inc., 788 So. 2d 1051, 1053 (Fla. 1st DCA
2001) (rendering an opinion on the merits in a moot appeal because
the appellee sought attorney’s fees in the trial court after
dismissal). 4 For this reason, we proceed to the merits of this
appeal.


     We find that Lund v. Dep’t of Health, 708 So. 2d 645 (Fla. 1st
     4

DCA 1998), does not require a different conclusion. In Lund we
dismissed a moot appeal in a license disciplinary action, finding
that the possibility of attorney’s fees pursuant to section
120.595(5) does not constitute a collateral legal consequence. Id. at
646. However, payment of attorney’s fees under subsection (5) of
                                   6
                            ANALYSIS

     We review the ALJ’s conclusions of law and determinations of
statutory interpretation de novo. See J.S. v. C.M., 135 So. 3d 312,
315 (Fla. 1st DCA 2012); Abbott Labs. v. Mylan Pharms., Inc., 15
So. 3d 642, 654 (Fla. 1st DCA 2009). To the extent that an issue
depends on the ALJ’s finding of fact, we only review whether the
finding is supported by competent, substantial evidence. Abbott
Labs., 15 So. 3d at 654.

     The ALJ determined that the Proposed Rules were an invalid
exercise of delegated legislative authority because (1) it would
render superfluous the requirement that trauma centers be
located in a TSA with a need under the prior version of section
395.4025(5) where all TSAs would always have a need; (2) the rule
minimums would implicitly supersede the statutory minimum
provided by the prior version of section 395.402(4); and (3) it vests
the Department with unbridled discretion to permit it to reserve
trauma center slots for TSAs that have not satisfied their rule
minimum. See § 120.52(8)(c) & (d), Fla. Stat.




that statute is conditional, permitted only when the appellate
court determines that the appeal was “frivolous, meritless, or an
abuse of the appellate process, or that the agency action which
precipitated the appeal was a gross abuse of the agency’s
discretion.” Fees here are sought under section 120.595(2), which
requires that “a judgment or order shall be rendered against the
agency for reasonable costs and reasonable attorney’s fees,” “[i]f
the appellate court or administrative law judge declares a
proposed rule or portion of a proposed rule invalid,” unless “the
agency demonstrates that its actions were substantially justified
or special circumstances exist which would make the award
unjust.” Stated differently, fees under subsection (2) are required
unless an exception applies, whereas fees under subsection (5) are
wholly conditional. We find this distinction to be relevant here, so
that the request for fees under section 120.595(2) allows us to
decide this moot appeal.

                                 7
     First, the prior version of section 395.4025(5) provided that
provisional trauma centers “shall be located in a trauma service
area that has a need for such a trauma center.” (emphasis added).
The ALJ held that because the Department’s allocation of
minimum need would mean all TSAs would “always” have a need,
the Proposed Rules render the prior version of section 395.4025(5)
superfluous. The ALJ’s holding is not accurate under the statute
or the Proposed Rules.

     There is nothing in the prior version of section 395.4025(5)
that bars multiple TSAs from having needs at the same time. So
long as the state is under the statutory cap, multiple TSAs may
find an additional trauma center to be desirable or useful despite
the fact that it has already met its minimum requirements by
statute or rule. See Need, Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/need (last visited
Aug. 9, 2018) (defining “need” as “a lack of something requisite,
desirable, or useful”).

     Further, TSAs would not “always” have a need. Once the
former statewide cap of 44 trauma centers was met, no TSA would
have a need. See § 395.402(4)(c), Fla. Stat. (2016). If the state were
nearing the cap, priority would have been given to any TSA that
had not met its minimum provided by the Proposed Rules. The
ability to reserve slots is implied in the Department’s use of the
word “minimum” in the Proposed Rules. Accordingly, the
Department would deny any trauma center application in a TSA
that had already met its prescribed rule minimum when doing so
would foreclose the opportunity for another TSA to meet its rule
minimum.

     This is all within its authority, as the Department was tasked
with establishing “the approximate number of trauma centers
needed to ensure reasonable access to high-quality trauma
services.” See § 395.4025(1), Fla. Stat. (2016) (emphasis added).
The Legislature’s use of the words “approximate” and “reasonable”
makes unlikely that it intended “need” to refer to a defined and
limited maximum. The former section 395.4025(5) was not
rendered superfluous or contravened by the Proposed Rules.

     Second, the prior version of section 395.402(4) provided both
a floor for the individual TSAs (one) and a ceiling for the state (44).
                                  8
§ 395.402(4)(b) & (c), Fla. Stat. (2016). The ALJ held that the
Proposed Rules implicitly superseded the prior version of section
395.402(4), which already had established a minimum number of
trauma centers per TSA.

     The statutory floor in the prior version of section 395.402(4)
provided a universal minimum without consideration of a TSA’s
actual or approximate need. Between the floor and the ceiling, the
Department was tasked with allocating (distributing or
designating) the remaining 25 available trauma centers slots
amongst the TSAs based upon their approximate need.
§§ 395.402(4)(b), 395.4025(1), Fla. Stat. (2016); see Allocate,
Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/allocate (last viewed Aug. 9, 2018)
(defining “allocate” as either (1) “to apportion for a specific purpose
or to particular persons or things : distribute” or (2) “to set apart
or earmark : designate”).

     It is reasonable that the Department would provide each
TSA’s minimum need to support the purpose of the statute, which
is access. The Proposed Rules leave open the opportunity to
distribute all available trauma center slots, if needed. The Old
Rules actually rendered the prior version of section 395.402(4)
superfluous in providing for maximum of 27 trauma centers for the
state, prohibiting it from ever reaching the 44 total trauma centers
allowed.

     Third, the ALJ held that the Proposed Rules vested the
Department with unbridled discretion insofar as it could reserve
trauma center slots under the statutory cap for TSAs that had one
trauma center—satisfying the statutory minimum under the prior
version of section 395.402(4)(b)—but that had not yet met their
rule minimum. The ALJ held: “In sum, the Proposed Rules are
invalid because they confer discretion on the Department that is
not articulated in the statutes the Proposed Rules would
implement.”

     As discussed above, the Department was tasked with
allocating the approximate number of trauma center slots to the
TSAs to ensure reasonable access to trauma care. It was rational
for the Department to reserve slots for TSAs without sufficient
trauma centers to satisfy their need assessment under the
                                  9
Proposed Rules to ensure reasonable access. Because the statute
laid out the framework with little guidance regarding
implementation, the Legislature granted the Department wide
berth to make the pure policy decisions that would support the
interpretation of need as a maximum or minimum. Accordingly,
we find the Proposed Rules do not vest the Department with
unbridled discretion.

                        CONCLUSION

    The final order is reversed and the cause remanded in
accordance with this opinion.

    REVERSED.

MAKAR, WINOKUR, 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.
               _____________________________


William Dean Hall, III, Marc W. Dunbar, and Daniel R. Russell of
Jones Walker LLP, Tallahassee; Jason Gonzalez and Amber
Stoner of Shutts & Bowen LLP, Tallahassee; and Jay Patrick
Reynolds, Chief Legal Counsel, and Michael J. Williams, Assistant
General Counsel, Florida Department of Health, Tallahassee, for
Department of Health.

Thomas F. Panza, Jennifer K. Graner, Brian S. Vidas, and Paul C.
Buckley of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for
The Public Health Trust of Miami-Dade County, Florida.

Stephen A. Ecenia, J. Stephen Menton, and Gabriel F. V. Warren
of Rutledge Ecenia, P.A., Tallahassee, for JFK Medical Center and
Orange Park Medical Center.

Seann M. Frazier and Marc Ito of Parker, Hudson, Rainer &

                               10
Dobbs, LLP, Tallahassee, for UF Health Jacksonville, Lee
Memorial Health System, and Tampa General Hospital.

Karen A. Putnal and Jon C. Moyle of Moyle Law Firm,
Tallahassee, for St. Joseph’s Hospital.

Geoffrey D. Smith, Timothy B. Elliott and Corinne Porcher of
Smith & Associates, Tallahassee, for Bayfront Medical Center.




                             11
