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    State of Florida Division of Administrative Hearings

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    Jacob Ogles
    The Florida Department of Health filed a motion to dismiss petitions challenging an emergency rule that had been repealed. The Department argued that DOAH (Division of Administrative Hearings) no longer had jurisdiction since the challenged emergency rule was no longer in effect, having been repealed and replaced. DOAH is required to dismiss such challenges once the rule at issue is repealed. The petitioners would need to file new petitions addressing any replacement rule.

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    State of Florida Division of Administrative Hearings

    Uploaded by

    Jacob Ogles
    5K views13 pages
    The Florida Department of Health filed a motion to dismiss petitions challenging an emergency rule that had been repealed. The Department argued that DOAH (Division of Administrative Hearings) no longer had jurisdiction since the challenged emergency rule was no longer in effect, having been repealed and replaced. DOAH is required to dismiss such challenges once the rule at issue is repealed. The petitioners would need to file new petitions addressing any replacement rule.

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    The Florida Department of Health filed a motion to dismiss petitions challenging an emergency rule that had been repealed. The Department argued that DOAH (Division of Administrative Hearings) no longer had jurisdiction since the challenged emergency rule was no longer in effect, having been repealed and replaced. DOAH is required to dismiss such challenges once the rule at issue is repealed. The petitioners would need to file new petitions addressing any replacement rule.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    5K views13 pages

    State of Florida Division of Administrative Hearings

    Uploaded by

    Jacob Ogles
    The Florida Department of Health filed a motion to dismiss petitions challenging an emergency rule that had been repealed. The Department argued that DOAH (Division of Administrative Hearings) no longer had jurisdiction since the challenged emergency rule was no longer in effect, having been repealed and replaced. DOAH is required to dismiss such challenges once the rule at issue is repealed. The petitioners would need to file new petitions addressing any replacement rule.

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    of 13

    STATE OF FLORIDA

    DIVISION OF ADMINISTRATIVE HEARINGS

    THE SCHOOL BOARD OF BROWARD COUNTY,


    FLORIDA, THE SCHOOL BOARD OF ALACHUA
    COUNTY, FLORIDA, AND THE SCHOOL
    BOARD OF ORANGE COUNTY, FLORIDA,

    Petitioners, Case No. 21-2696RE

    v.

    STATE OF FLORIDA, DEPARTMENT OF


    HEALTH,

    Respondent.
    _________________________________________/
    SCHOOL BOARD OF MIAMI-DADE COUNTY,
    FLORIDA,

    Petitioner, Case No. 21-2697RE

    v.

    FLORIDA DEPARTMENT OF HEALTH,

    Respondent.
    __________________________________________/
    SCHOOL BOARD OF LEON COUNTY,
    FLORIDA, AND ROCKY HANNA, AS
    SUPERINTENDENT, LEON COUNTY
    SCHOOLS,

    Petitioners, Case No. 21-2721RE

    v.

    FLORIDA DEPARTMENT OF HEALTH,

    Respondent.
    _______________________________________/

    Filed September 22, 2021 10:38 AM Division of Administrative Hearings


    DEPARTMENT’S AMENDED MOTION TO DISMISS
    FOR MOOTNESS AND LACK OF JURISDICTION

    Respondent Florida Department of Health moves to dismiss the petitions in these

    consolidated matters as the Emergency Rule that is being challenged has been repealed, and

    DOAH is now without jurisdiction. On September 22, 2021, the Department filed with the

    Department of State a repeal of Emergency Rule 64DER21-12. See Exhibit A (reflecting filing,

    acceptance, and effective date of September 22, 2021). DOAH’s jurisdiction ceases to exist upon

    the repeal of a rule and may not proceed further in any regard. Department of Revenue v. Sheraton

    Bal Harbour Ass'n, Ltd., 864 So. 2d 454, 454 (Fla. 1st DCA 2003) (granting petition for writ of

    prohibition to prevent DOAH from proceeding in a “rule challenge to a repealed rule” because

    “section 120.56, Florida Statutes does not authorize a rule challenge to a rule that is no longer in

    existence, and therefore, DOAH [was] acting in excess of its jurisdiction”); Pasco Chwip Partners,

    LLC, v. Fla. Housing Finance Corp., No. 09-3330, ¶ 46 n. 11 (Fla. DOAH Feb. 18, 2010)

    (Recommended Order) (“Once the Emergency Rules ceased to exist by operation of law, the rule

    challenge proceedings became moot, and DOAH lost jurisdiction.”). Because it lacks jurisdiction,

    DOAH cannot proceed to allow the amendment of pleadings—it is instead required to promptly

    dismiss the matter. Sheraton Bal Harbour Ass’n, Ltd., 864 So. 2d at 454. The Department’s

    adoption of a new rule does not change this. Rather, petitioners would be required to file petitions

    directed at the new rule.

    Wherefore, the Department is entitled to immediate orders of dismissal and requests that

    such orders be entered without delay.

    2
    /s/ Eduardo S. Lombard
    Eduardo S. Lombard
    Florida Bar Number 153590
    Angela D. Miles
    Florida Bar Number 72495
    Melissa R. Hedrick
    Florida Bar Number 1010989

    Radey Law Firm


    301 South Bronough, Suite 200
    Tallahassee, Florida 32301
    (850) 425-6654
    [email protected]
    [email protected]
    [email protected]
    [email protected]

    Counsel for Florida Department of Health

    CERTIFICATE OF SERVICE

    I certify that on September 22, 2021, that this document has been eServed via the DOAH

    portal and emailed to the below listed parties:

    David C. Ashburn Jamie A. Cole


    Barry Richard WEISS SEROTA HELFMAN
    John K. Londot COLE & BIERMAN, P.L.
    GREENBERG TRAURIG 200 East Broward Boulevard, Suite 1900
    101 E. College Ave. Fort Lauderdale, FL 33301
    Tallahassee, FL 32301 [email protected]
    [email protected] [email protected]
    [email protected]
    [email protected] Counsel for the School Boards of Miami-
    [email protected] Dade and Leon Counties, Florida and Rocky
    [email protected] Hanna, as Superintendent, Leon Count
    Schools

    Counsel for The School Boards of


    Broward, Alachua, and Orange Counties,
    Florida

    3
    Edward G. Guedes
    Richard B. Rosengarten
    WEISS SEROTA HELFMAN
    COLE & BIERMAN, P.L.
    2525 Ponce de Leon Blvd. Suite 700
    Coral Gables, FL 33134
    [email protected]
    [email protected]
    [email protected]

    Counsel for the School Boards of Miami-


    Dade and Leon Counties, Florida and
    Rocky Hanna, as Superintendent, Leon
    Count Schools

    /s/ Eduardo S. Lombard


    Eduardo S. Lombard

    4
    EXHIBIT A
    EXHIBIT A
    EXHIBIT A
    EXHIBIT A
    EXHIBIT A
    EXHIBIT A
    EXHIBIT A
    EXHIBIT A
    EXHIBIT A

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