Third District Court of Appeal
State of Florida
Opinion filed October 6, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1748
Lower Tribunal No. 64DER21-12
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School Board of Miami-Dade County, Florida,
Petitioner,
vs.
Florida Department of Health, et al.,
Respondents.
A Case of Original Jurisdiction – Review of Emergency Rule.
Weiss Serota Helfman Cole & Bierman, P.L., and Jamie A. Cole (Fort
Lauderdale), Edward G. Guedes, and Richard B. Rosengarten, for petitioner.
Shutts & Bowen LLP, and Daniel E. Nordby (Tallahassee), Benjamin
J. Gibson (Tallahassee), Julissa Rodriguez, and Eric M. Yesner, for
respondents.
Before MILLER, LOBREE, and BOKOR, JJ.
MILLER, J.
UPON MOTION TO DISMISS
In a dispute underscoring inherent tensions between state control and
local self-governance, the School Board of Miami-Dade County, Florida, filed
a petition for review of Emergency Rule 64DER21-12, adopted by the Florida
Department of Health and then Florida Surgeon General, Dr. Scott A.
Rivkees. The rule was promulgated to address the emergency created by
the “increase in COVID-19 infections, largely due to the spread of the
COVID-19 delta variant, coinc[iding] with the imminent start of the school
year.”
47 Fla. Admin. Reg. 3650 (Aug. 9, 2021). The School Board
challenged the portion of the rule that provided “[s]tudents may wear masks
or facial coverings as a mitigation measure,” but schools must “allow for a
parent or legal guardian of the student to opt-out the student from wearing a
face covering or mask.”
Id. at 3651. The rule has since been repealed, and
the Department, along with the current Florida Surgeon General, Dr. Joseph
A. Ladapo, adopted new Emergency Rule 64DER21-15.
47 Fla. Admin.
Reg. 4427 (Sept. 23, 2021).1 The Department seeks dismissal, contending
the instant petition is now moot. The School Board opposes dismissal,
contending collateral legal consequences warrant a retention of jurisdiction
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The newly adopted emergency rule is the subject of a separate challenge
before this court.
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and a decision on the merits. For the reasons discussed below, we dismiss
the petition.
BACKGROUND
On August 6, 2021, the Department promulgated Emergency Rule
64DER21-12, entitled “Protocols for Controlling COVID-19 in School
Settings.” The rule contained several advisory resolutions, designed to
provide “emergency guidance to school districts concerning the governance
of COVID-19 protocols in schools.” 47 Fla. Admin. Reg. at 3650. Under the
rule, although students were permitted to “wear masks or facial coverings as
a mitigation measure,” schools were mandated to “allow for a parent or legal
guardian of the student to opt-out the student from wearing a face covering
or mask.” Id. at 3651.
The identified emergency justifying the implementation of the rule was
the “increase in COVID-19 infections, largely due to the spread of the
COVID-19 delta variant, coincid[ing] with the imminent start of the school
year.” Id. at 3650. In this regard, the rule explained, it was “imperative that
state health and education authorities provide emergency guidance to school
districts concerning the governance of COVID-19 protocols in schools.” Id.
Citing “its authority to adopt rules governing the control of preventable
communicable diseases in public schools,” the Department articulated the
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goal of “[encouraging] a safe and effective in-person learning environment
for Florida’s schoolchildren during the upcoming school year; [preventing]
the unnecessary removal of students from school; and [safeguarding] the
rights of parents and their children.” Id. The rule reflected the opt-out
provision was necessary because “[u]nder Florida law, parents have a
fundamental right to direct the upbringing, education, health care, and mental
health of their minor children and have the right to make health care
decisions for their minor children.” Id. Further,
[B]ecause students benefit from in-person learning—it is
necessary to immediately promulgate a rule regarding COVID-
19 safety protocols that protects parents’ rights and to allow for
in-person education for their children. Removing children from
school poses a threat to developmental upbringing and should
not occur absent a heightened showing of illness or risk of illness
to other students.
Id. Finally, the Department posited the procedure was fair under the
circumstances because,
[I]n light of the recent rise in COVID-19 cases in Florida and the
urgent need to provide COVID-19 guidance to school districts
before the upcoming school year commences. Given that a
majority of schools will resume in-person learning for the 2021-
2022 school year within the next four weeks, there is insufficient
time to adopt the rule through non-emergency process.
Id.
After the School Board filed the instant petition, the rule was repealed.
The Department and Dr. Ladapo then promulgated Emergency Rule
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64DER21-12. Like its predecessor, the newly adopted rule addresses the
“Control of COVID-19 in School Settings.” Unlike the former rule, however,
Emergency Rule 64DER21-12 expands the rationales for implementation
and establishes different safety protocols.
Despite the marked dissimilarities between the two rules, the School
Board argues its challenge remains viable because collateral legal
consequences, namely attorney’s fees, flow from the issue to be resolved,
affecting its rights. See Dep’t of Health v. Shands Jacksonville Med. Ctr.,
Inc.,
259 So. 3d 247, 251 (Fla. 1st DCA 2018). We are not so persuaded.
ANALYSIS
“Ordinarily, when a challenged [rule is] repealed, the question of its
validity becomes moot.” Curless v. County of Clay,
395 So. 2d 255, 258 (Fla.
1st DCA 1981); see also 3 Fla. Jur. 2d App. Rev. § 286 (2021). That is
because, under these circumstances, “a judicial determination can have no
actual effect.” Godwin v. State,
593 So. 2d 211, 212 (Fla. 1992). An
exception to this general rule arises, however, where “collateral legal
consequences that affect the rights of a party flow from the issue to be
determined.”
Id. This exception is narrowly applied to those cases in which
a party stands to lose property, advantages, or rights as a collateral result of
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the dismissal. Lund v. Dep’t of Health,
708 So. 2d 645, 646 (Fla. 1st DCA
1998).
Our sister courts have endorsed the notion that fee entitlement may
constitute such a collateral legal consequence. See Mazer v. Orange
County,
811 So. 2d 857, 859 (Fla. 5th DCA 2002); Soud v. Kendale, Inc.,
788 So. 2d 1051, 1053 (Fla. 1st DCA 2001). Consequently, we turn our
analysis to whether, in the instant case, the School Board would have been
entitled to recover fees had it prevailed in its challenge.
The School Board contends section 120.595(3), Florida Statutes
(2021), authorizes a recovery of fees in these proceedings. As with any
statutory analysis, we begin “with ‘the language of the statute,’” and, here,
because that “language provides a clear answer, it ends there as well.”
Hughes Aircraft Co. v. Jacobson,
525 U.S. 432, 438 (1999) (quoting Est. of
Cowart v. Nicklos Drilling Co.,
505 U.S. 469, 475 (1992)).
Section 120.595, Florida Statutes, entitled “[a]ttorney’s fees,” contains
several provisions allowing for the recovery of fees in successful challenges
to agency action. As expressly provided by the legislature, the applicability
of subsection (3) of the statute is limited to “challenges to existing agency
rules pursuant to section 120.56(3) and (5).” § 120.595(3), Fla. Stat. In such
successful challenges, the appellate court or administrative law judge must
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award reasonable costs and attorney’s fees against the agency, “unless the
agency demonstrates that its actions were substantially justified or special
circumstances exist which would make the award unjust.” Id.
Section 120.56(3) and (5), in turn, provide procedures for one
“substantially affected by a rule or a proposed rule” to “seek an administrative
determination of the invalidity of the rule.” § 120.56(1)(a), Fla. Stat. These
avenues differ from the administrative procedures codified in section 120.68,
Florida Statutes. Under section 120.68, the district courts review emergency
rules “without an intervening administrative challenge to exhaust
administrative remedies.” Fla. Democratic Party v. Hood,
884 So. 2d 1148,
1151 (Fla. 1st DCA 2004).
Here, the School Board did not challenge the rule through the
administrative procedures codified in section 120.56, Florida Statutes.
Instead, it sought direct judicial review pursuant to section 120.68, Florida
Statutes. As attorney’s fees are in derogation of the common law, they “may
only be awarded by a court pursuant to an entitling statute or an agreement
of the parties,” and an entitlement statute must be strictly construed. Dade
County v. Pena,
664 So. 2d 959, 960 (Fla. 1995); see Major League Baseball
v. Morsani,
790 So. 2d 1071, 1077–78 (Fla. 2001) (“[A] statute enacted in
derogation of the common law must be strictly construed and . . . even where
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the Legislature acts in a particular area, the common law remains in effect in
that area unless the statute specifically says otherwise.”); see also Gershuny
v. Martin McFall Messenger Anesthesia Prof’l Ass’n,
539 So. 2d 1131, 1132
(Fla. 1989) (“[T]he mention of one thing in a statute implies the exclusion of
those things not expressly mentioned.”). Adhering to the plain statutory
language, we conclude section 120.595(3) provides no basis for fee
entitlement in this proceeding, thus, the repeal of Emergency Rule
64DER21-12 renders the instant petition moot.
Petition dismissed.
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