author: ATKINSON, Judge. KHOUZAM, Judge, Dissenting.

text:
    The SCHOOL BOARD OF HILLSBOROUGH COUNTY, Florida, Petitioner, v. Stephanie WOODFORD, Respondent.
    Case No. 2D18-1463
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2019
    Robert W. Boos of Adams and Reese LLP, Tampa, for Petitioner.
    Mark Herdman of Herdman & Sakellarides, P.A., Clearwater, for Respondent.
   ATKINSON, Judge.

The School Board of Hillsborough County, Florida (the School Board), petitions for a writ of certiorari to review the trial court's order denying its motion to dismiss Ms. Woodford's complaint alleging whistle-blower retaliation in violation of section 112.3187, Florida Statutes (2017) (the Whistle-blower's Act). We grant the petition and quash the trial court's order.

Ms. Woodford served as the Chief Officer for Human Resources for the School Board from July 22, 2013, through the termination of her employment on April 27, 2017. In her complaint, Ms. Woodford claimed that the School Board terminated her in retaliation for her complaints of, and her refusal to participate in, various alleged unlawful and unethical practices. Ms. Woodford neither pled that she exhausted all administrative remedies before filing suit nor that no such administrative remedies existed.

The School Board moved to dismiss Ms. Woodford's complaint for lack of subject matter jurisdiction pursuant to Florida Rule of Civil Procedure 1.140(b)(1), claiming that Ms. Woodford failed to exhaust her administrative remedies prior to bringing suit as required by the Whistle-blower's Act. In support of its motion, the School Board attached its 2004 contract with the Division of Administrative Hearings (DOAH) for the "adjudication of administrative disputes" pursuant to section 120.65, Florida Statutes (2017).

Under "Scope of Services," the contract provides that "DOAH agrees to make Administrative Law Judges available to" the School Board. The contract then provides that "the Administrative Law Judges to be provided are experts in the adjudication of administrative disputes and such Administrative Law Judges shall, where possible, be persons familiar with the law involving the issues at hand." Under "Request for Services," the contract provides that "in order to obtain the services of an Administrative Law Judge," the School Board shall initiate a letter to the Chief Judge of DOAH requesting the services of an Administrative Law Judge along with "a copy of any materials relevant to the request." The contract then provides that DOAH shall provide an Administrative Law Judge within thirty days of its receipt of the letter.

After a hearing, the trial court denied the School Board's motion to dismiss, stating the following:

For the reasons argued by [Ms. Woodford's] counsel in his papers and at the hearing, and in light of Florida Law, the Motion is denied. Most simply, the School Board has no policy or practice for dealing with whistleblower complaints administratively, as is evidenced by the lack of any proof that Woodford was put on notice at any time to follow such a policy or practice. Because the Court finds that there was no duty on Ms. Woodford to exhaust any administrative remedies, there was no duty for her to plead that she had done so.

The School Board timely filed its petition for writ of certiorari, arguing that the trial court's denial of its motion to dismiss departed from the essential requirements of the law because it incorrectly found that the School Board did not have an administrative remedy that Ms. Woodford was required to exhaust and it inserted a notice requirement into the statute that is not supported by its text. We agree.

A petition for a writ of certiorari must pass a three-pronged test before an appellate court may grant relief from an erroneous interlocutory order. Stephens v. Geoghegan, 702 So.2d 517, 521 (Fla. 2d DCA 1997) ; Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). "A petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal." Parkway, 658 So.2d at 648. This court must first examine the second and third prongs, which are sometimes referred to as "irreparable harm," to determine whether we have certiorari jurisdiction to hear the petition at all. See Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So.3d 712, 721 (Fla. 2012) ; State Farm Fla. Ins. Co. v. Buitrago, 100 So.3d 85, 88 (Fla. 2d DCA 2012). If the jurisdictional prongs are met, then this court must determine whether the trial court's nonfinal order departs from the essential requirements of the law. Buitrago, 100 So.3d at 88.

In general, certiorari is not the appropriate vehicle to review the denial of a motion to dismiss. Fassy v. Crowley, 884 So.2d 359, 362 (Fla. 2d DCA 2004) (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla. 1987) ). However, courts have exercised certiorari jurisdiction to review the denial of a pretrial motion alleging failure to exhaust administrative remedies in actions brought pursuant to the Whistle-blower's Act. See, e.g., Bradshaw v. Bott, 205 So.3d 815, 817-18 (Fla. 4th DCA 2016) (accepting certiorari jurisdiction to review order denying motion for summary judgment for failure to exhaust pre-suit requirements of the Whistle-blower's Act); Univ. of Cent. Fla. Bd. of Trs. v. Turkiewicz, 21 So.3d 141, 145 (Fla. 5th DCA 2009) (accepting certiorari jurisdiction to review order denying motion to dismiss for failure to exhaust administrative remedies before filing suit under the Whistle-blower's Act). Where, as in this case, a pretrial motion would have terminated litigation if granted, its denial can be "properly reviewed via certiorari where the statutory presuit requirements ha[ve] not been met[.]" Bradshaw, 205 So.3d at 817 ; see, e.g., Parkway, 658 So.2d at 649 ("[Pre-suit requirements] cannot be meaningfully enforced postjudgment because the purpose ... is to avoid the filing of the lawsuit in the first instance."). Because the School Board seeks review of the denial of its motion to dismiss based on Ms. Woodford's failure to exhaust her administrative remedies under the Whistle-blower's Act, we have jurisdiction in this case.

Having found a basis for certiorari jurisdiction, we must determine whether the trial court departed from the essential requirements of the law. See Stephens, 702 So.2d at 521. A departure from the essential requirements of the law "is something more than a simple legal error." See Fassy, 884 So.2d at 363-64. "There must be a violation of a clearly established principle of law resulting in a miscarriage of justice." Id. (citing Combs v. State, 436 So.2d 93, 95-96 (Fla. 1983) ).

Section 112.3187(8) identifies three classes of persons who may file a whistle-blower complaint. See § 112.3187(8)(a)-(c). Because Ms. Woodford was the Chief Officer of Human Resources for the School Board, she falls within section 112.3187(8)(b), which applies to local public employees. That section provides the following:

Within 60 days after the action prohibited by this section, any local public employee protected by this section may file a complaint with the appropriate local governmental authority, if that authority has established by ordinance an administrative procedure for handling such complaints or has contracted with the Division of Administrative Hearings under s. 120.65 to conduct hearings under this section. The administrative procedure created by ordinance must provide for the complaint to be heard by a panel of impartial persons appointed by the appropriate local governmental authority. Upon hearing the complaint, the panel must make findings of fact and conclusions of law for a final decision by the local governmental authority. Within 180 days after entry of a final decision by the local governmental authority, the public employee who filed the complaint may bring a civil action in any court of competent jurisdiction. If the local governmental authority has not established an administrative procedure by ordinance or contract, a local public employee may, within 180 days after the action prohibited by this section, bring a civil action in a court of competent jurisdiction. For the purpose of this paragraph, the term "local governmental authority" includes any regional, county, or municipal entity, special district, community college district, or school district or any political subdivision of any of the foregoing.

§ 112.3187(8)(b) (emphasis added). The statute affords a local governmental authority the option to handle a whistle-blower claim itself before it is hailed into court, provided that the local governmental authority has established one of two alternative administrative remedies that an employee must exhaust: one by ordinance and the other by contract with DOAH. The School Board chose to contract with DOAH.

Here, the trial court's order allowing Ms. Woodford to pursue her whistleblower complaint without exhausting her administrative remedies constitutes a departure from the essential requirements of the law because the trial court misinterpreted the exhaustion requirement set forth in the Act by improperly inserting into the statute two requirements that are not supported by its text: (1) that the DOAH contract explicitly reference the Whistle-blower's Act, and (2) that the local governmental authority provide notice to a prospective whistle-blower claimant.

Ms. Woodford argues that because the Whistle-blower's Act requires a contract with DOAH to be for the specific purpose of "conducting hearings under this section," the School Board's contract with DOAH, which does not expressly refer to the Whistle-blower's Act, is insufficient. The School Board argues that the language of the Act does not require the contract to include this level of specificity.

The School Board contends that neither alternative remedy under the statute has to expressly reference the Act. Courts have affirmed the sufficiency of general ordinance procedures that made no express reference to the Whistle-blower's Act or complaints under it. See, e.g., Dinehart v. Town of Palm Beach, 728 So.2d 360, 361 (Fla. 4th DCA 1999) ; City of Miami v. Del Rio, 723 So.2d 299, 300 n.2, 301 n.3 (Fla. 3d DCA 1998). Because general ordinances are sufficient to establish the statutory administrative remedy, the School Board argues that a general contract with DOAH should be as well. The School Board contends that because it contracted with DOAH to adjudicate administrative disputes, its contract with DOAH is broad enough to cover whistle-blower complaints. We agree.

A contract that enables the School Board to have DOAH conduct hearings to resolve whistle-blower complaints is a contract to conduct hearings "under this section." The contract is sufficient as long as hearings under section 112.3187(8)(b) are among the administrative matters that DOAH would be contractually required to adjudicate at the request of a local governmental authority. Describing DOAH's contractual obligation with general language broad enough to encompass other administrative matters does not render it insufficient. Indeed, if the School Board's contract with DOAH had to expressly list each claim that DOAH must hear, then the contract would be rendered meaningless because it does not list any specific claims that must be heard. Rather, the contract provides for the services of Administrative Law Judges "in certain proceedings in which the substantial interests of a party are determined by the [School Board]." This language is no less susceptible of applying to whistle-blower complaints than to any other administrative dispute. As such, the School Board's contract with DOAH provides an administrative remedy that must be exhausted under section 112.3187(8)(b).

The trial court's stated rationale for denying the School Board's motion to dismiss was based on lack of notice: "[T]he School Board has no policy or practice for dealing with whistleblower complaints administratively, as is evidenced by the lack of any proof that Woodford was put on notice at any time to follow such a policy or practice." However, the Act does not require that a local governmental authority affirmatively place employees on notice that they must exhaust the local governmental authority's administrative remedy. The Act itself puts an employee on notice.

The cause of action brought by Ms. Woodford is a creature of statute, which itself instructs a potential claimant on the condition precedent of exhaustion of the local governmental authority's administrative remedy. The legislature could have included a requirement that the local governmental authority provide notice, but it did not do so in the Whistle-blower's Act. Cf., e.g., § 448.109(3)(a), Fla. Stat. (2018) (requiring employers to post notice of employees' rights to Florida minimum wage in a conspicuous and accessible place); § 440.185(10), Fla. Stat. (2018) (stating that, "upon receiving notice of an injury from an employee," employers or carriers must "provide the employee with a written notice ... of the availability of services from the Employee Assistance and Ombudsman Office"); 42 U.S.C. § 2000e-10 (containing express notice posting requirements providing specific information to employees of their rights under Title VII).

Because there is no notice requirement in the Act, the School Board was not required to give notice to its employees that it had a contract with DOAH to provide an administrative remedy for whistle-blower complaints. This court cannot write a notice requirement into the statute. See Fla. Dep't of Revenue v. Fla. Mun. Power Agency, 789 So.2d 320, 324 (Fla. 2001) ("Under fundamental principles of separation of powers, courts cannot judicially alter the wording of statutes where the Legislature clearly has not done so."). The trial court departed from the essential requirements of the law when it inserted one.

The trial court's order denying the School Board's motion to dismiss departs from the essential requirements of the law because it incorrectly found that the School Board did not have an administrative remedy that Ms. Woodford was required to exhaust before filing her civil action in court. See Progressive Express Ins. Co. v. Reaume, 937 So.2d 1120, 1123 (Fla. 2d DCA 2006) ("[A] circuit court departs from the essential requirements of law where it permits parties to litigate in that court where there is a contractual or legal obligation to proceed only administratively." (citing Univ. of Miami v. Klein, 603 So.2d 651, 652 (Fla. 3d DCA 1992) ) ); Metropolitan Dade County v. Recchi Am., Inc., 734 So.2d 1123, 1125 (Fla. 3d DCA 1999). Because Ms. Woodford had a legal obligation to exhaust her administrative remedies and failed to do so, the trial court departed from the essential requirements of the law in denying the School Board's motion to dismiss. See FCCI Ins. Co. v. NCM of Collier Cty., Inc., 15 So.3d 5, 7-8 (Fla. 2d DCA 2009). Accordingly, we grant the petition for writ of certiorari and quash the trial court's order.

Petition granted; order quashed.

LUCAS, J., Concurs.

KHOUZAM, J., Dissents with opinion.

KHOUZAM, Judge, Dissenting.

Because the School Board failed to establish that there was a departure from the essential requirements of the law, I respectfully dissent.

"A departure from the essential requirements of the law means 'a violation of a clearly established principle of law resulting in a miscarriage of justice.' " Gator Boring & Trenching, Inc. v. Westra Const. Corp., 210 So.3d 175, 184 (Fla. 2d DCA 2016) (quoting Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla. 2003) ). Thus, a "departure from the essential requirements of law necessary for the issuance of a writ of certiorari is something more than a simple legal error." Futch v. Fla. Dep't of Highway Safety & Motor Vehicles, 189 So.3d 131, 132 (Fla. 2016) (quoting Kaklamanos, 843 So.2d at 889 ). Mere disagreement with a lower court's interpretation of the law "is an improper basis for common law certiorari." Ivey v. Allstate Ins. Co., 774 So.2d 679, 683 (Fla. 2000).

In the instant case, section 112.3187(8)(b), Florida Statutes (2017), provides in pertinent part:

[A]ny local public employee protected by this section may file a complaint with the appropriate local governmental authority, if that authority has established by ordinance an administrative procedure for handling such complaints or has contracted with the Division of Administrative Hearings under s. 120.65 to conduct hearings under this section.... Within 180 days after entry of a final decision by the local governmental authority, the public employee who filed the complaint may bring a civil action in any court of competent jurisdiction. If the local governmental authority has not established an administrative procedure by ordinance or contract, a local public employee may ... bring a civil action in a court of competent jurisdiction.

(Emphasis added.) The School Board admitted that it has no administrative policy or practice for dealing with whistle-blower complaints. The majority agrees with the School Board that its general contract with DOAH constitutes such a policy or practice. But that is not the only fair interpretation of the statute. To the contrary, the language "to conduct hearings under this section" suggests that the contract with DOAH must expressly refer to the Whistle-blower Act. Since neither interpretation constitutes a clearly established principle of law, there can be no resulting miscarriage of justice and thus no grounds for granting the School Board's petition.

I also disagree with the majority's conclusion that the trial court erroneously inserted a notice requirement into the statute. The Order Denying Motion to Dismiss states: "[T]he School Board has no policy or practice for dealing with whistleblower complaints administratively, as is evidenced by the lack of any proof that Woodford was put on notice at any time to follow such a policy or practice." In my view, this statement did not imply that notice was required. Rather, it was simply an observation that, had there been an ordinance or contract dealing with Whistle-blower complaints, Ms. Woodford would have been required to follow it prior to filing suit. The School Board presented nothing to the trial judge indicating a procedure or policy with which Ms. Woodford was required to comply.

In light of these considerations, I would deny the School Board's petition for writ of certiorari.

      In its order, the trial court does not actually mention the School Board's contract with DOAH. However, the trial court based its decision on "the reasons argued by [Ms. Woodford's] counsel in his papers and at the hearing." We address the two of those arguments that merit discussion.


source: Caselaw Access Project

author: M.K. Thomas, J.

license: Public Domain

text:
    SOUTHERN BAPTIST HOSPITAL OF FLORIDA d/b/a Baptist Medical Center Nassau; Southern Baptist Hospital of Florida d/b/a Baptist Medical Center of the Beaches; Southern Baptist Hospital of Florida d/b/a Baptist Medical Center; Martin Memorial Medical Center; South Lake Hospital; Orlando Health, Inc. d/b/a Orlando Health; Orlando Health Central, Inc. d/b/a Health Central, Appellants, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    Southern Baptist Hospital of Florida d/b/a Baptist Medical Center Nassau; Southern Baptist Hospital of Florida d/b/a Baptist Medical Center of the Beaches; Southern Baptist Hospital of Florida d/b/a Baptist Medical Center; Martin Memorial Medical Center; South Lake Hospital; Orlando Health, Inc. d/b/a Orlando Health; Orlando Health Central, Inc. d/b/a Health Central, Appellants, v. Agency for Health Care Administration, Appellee.
    The Public Health Trust of Miami-dade County, Florida, which governs and operates Jackson Health System, including Jackson Memorial Hospital, Jackson North Medical Center and Jackson South Community Hospital, Appellants, v. Agency for Health Care Administration, Appellee.
    Miami Beach Healthcare Group, Ltd., d/b/a Aventura Hospital and Medical Center; HCA Health Services of Florida, Inc., d/b/a Blake Medical Center; Galencare, Inc., d/b/a Brandon Regional Hospital; Tallahassee Medical Center, Inc., d/b/a Capital Regional Medical Center; Central Florida Regional Hospital, Inc., d/b/a Central Florida Regional Hospital; Citrus Memorial Hospital, Inc., d/b/a Citrus Memorial Hospital; Sarasota Doctors Hospital, Inc., d/b/a Doctors Hospital of Sarasota; Englewood Community Hospital, Inc., d/b/a Englewood Community Hospital; Fawcett Memorial Hospital, Inc., d/b/a Fawcett Memorial Hospital; Fort Walton Beach Medical Center, Inc., d/b/a Fort Walton Beach Medical Center; Bay Hospital, Inc., d/b/a Gulf Coast Medical Center; JFK Medical Center Limited Partnership, d/b/a JFK Medical Center; JFK Medical Center Limited Partnership, d/b/a JFK Medical Center-North Campus; Kendall Healthcare Group, Ltd., d/b/a Kendall Regional Medical Center; Notami Hospitals of Florida, Inc., d/b/a Lake City Medical Center; Largo Medical Center, Inc., d/b/a Largo Medical Center; Largo Medical Center, Inc., d/b/a Largo Medical Center-Indian Rocks; Lawnwood Medical Center, Inc., d/b/a Lawnwood Regional Medical Center & Heart Institute; New Port Richey Hospital, Inc., d/b/a Medical Center of Trinity; New Port Richey Hospital, Inc., d/b/a Medical Center of Trinity West Pasco Campus; Memorial Healthcare Group, Inc., d/b/a Memorial Hospital Jacksonville; West Florida - MHT, LLC, d/b/a Memorial Hospital of Tampa; Plantation General Hospital Limited Partnership, d/b/a Mercy Hospital, a Campus of Plantation General Hospital ; North Florida Regional Medical Center, Inc., d/b/a North Florida Regional Medical Center; Galencare, Inc., d/b/a Northside Hospital; Norhtwest Medical Center, Inc., d/b/a Northwest Medical Center; HCA Health Services of Florida, Inc., d/b/a Oak Holl Hospital; Marion Community Hospital, Inc., d/b/a Ocala Regional Medical Center; Marion Community Hospital, Inc., d/b/a West Marion Community Hospital; Orange Park Medical Center, Inc., d/b/a Orange Park Medical Center; Osceola Regional Hospital, Inc., d/b/a Osceola Regional Medical Center; West Florida - PPH, LLC, d/b/a Palms of Pasadena Hospital; Palms West Hospital Limited Partnership, d/b/a Palms West Hospital; Plantation General Hospital Limited Partnership, d/b/a Plantation General Hospital; Poinciana Medical Center, Inc., d/b/a Poinciana Medical Center; Putnam Community Medical Center of North Florida, LLC, d/b/a Putnam Community Medical Center; Okeechobee Hospital, Inc., d/b/a Raulerson Hospital; HCA Health Services of Florida, Inc., d/b/a Regional Medical Center Bayonet Point; HCA Long Term Health Services of Miami, Inc., d/b/a Sister Emmanuel Hospital ; Sun City Hospital, Inc., d/b/a South Bay Hospital; Memorial Healthcare Group, Inc., d/b/a Specialty Hospital Jacksonville; HCA Health Services of Florida, Inc., d/b/a St. Lucie Medical Center; Galen of Florida, Inc., d/b/a St. Petersburg General Hospital; West Florida - TCH, LLC, d/b/a Tampa Community Hospital; Okaloosa Hospital, Inc., d/b/a Twin Cities Hospital; University Hospital, Ltd., d/b/a University Hospital and Medical Center; West Florida Regional Medical Center, Inc., d/b/a West Florida Hospital; and Columbia Hospital Corporation of South Broward, d/b/a Westside Regional Medical Center, Appellants, v. Agency for Health Care Administration, Appellee.
    The Public Health Trust of Miami-Dade County, Florida, which governs and operates Jackson Health System, including Jackson Memorial Hospital, Jackson North Medical Center and Jackson South Community Hospital, Appellants, v. Agency for Health Care Administration, Appellee.
    Miami Beach Healthcare Group, Ltd., d/b/a Aventura Hospital and Medical Center; HCA Health Services of Florida, Inc., d/b/a Blake Medical Center; Galencare, Inc., d/b/a Brandon Regional Hospital; Tallahassee Medical Center, Inc., d/b/a Capital Regional Medical Center; Central Florida Regional Hospital, Inc., d/b/a Central Florida Regional Hospital; Citrus Memorial Hospital, Inc., d/b/a Citrus Memorial Hospital; Sarasota Doctors Hospital, Inc., d/b/a Doctors Hospital of Sarasota; Englewood Community Hospital, Inc., d/b/a Englewood Community Hospital; Fawcett Memorial Hospital, Inc., d/b/a Fawcett Memorial Hospital; Fort Walton Beach Medical Center, Inc., d/b/a Fort Walton Beach Medical Center; Bay Hospital, Inc., d/b/a Gulf Coast Medical Center; JFK Medical Center Limited Partnership, d/b/a JFK Medical Center; JFK Medical Center Limited Partnership, d/b/a JFK Medical Center-North Campus; Kendall Healthcare Group, Ltd., d/b/a Kendall Regional Medical Center; Notami Hospitals of Florida, Inc., d/b/a Lake City Medical Center; Largo Medical Center, Inc., d/b/a Largo Medical Center; Largo Medical Center, Inc., d/b/a Largo Medical Center-Indian Rocks; Lawnwood Medical Center, Inc., d/b/a Lawnwood Regional Medical Center & Heart Institute; New Port Richey Hospital, Inc., d/b/a Medical Center of Trinity; New Port Richey Hospital, Inc., d/b/a Medical Center of Trinity West Pasco Campus; Memorial Healthcare Group, Inc., d/b/a Memorial Hospital Jacksonville; West Florida - MHT, LLC, d/b/a Memorial Hospital of Tampa; Plantation General Hospital Limited Partnership, d/b/a Mercy Hospital, a Campus of Plantation General Hospital ; North Florida Regional Medical Center, Inc., d/b/a North Florida Regional Medical Center; Galencare, Inc., d/b/a Northside Hospital; Norhtwest Medical Center, Inc., d/b/a Northwest Medical Center; HCA Health Services of Florida, Inc., d/b/a Oak Holl Hospital; Marion Community Hospital, Inc., d/b/a Ocala Regional Medical Center; Marion Community Hospital, Inc., d/b/a West Marion Community Hospital; Orange Park Medical Center, Inc., d/b/a Orange Park Medical Center; Osceola Regional Hospital, Inc., d/b/a Osceola Regional Medical Center; West Florida - PPH, LLC, d/b/a Palms of Pasadena Hospital; Palms West Hospital Limited Partnership, d/b/a Palms West Hospital; Plantation General Hospital Limited Partnership, d/b/a Plantation General Hospital; Poinciana Medical Center, Inc., d/b/a Poinciana Medical Center; Putnam Community Medical Center of North Florida, LLC, d/b/a Putnam Community Medical Center; Okeechobee Hospital, Inc., d/b/a Raulerson Hospital; HCA Health Services of Florida, Inc., d/b/a Regional Medical Center Bayonet Point; HCA Long Term Health Services of Miami, Inc., d/b/a Sister Emmanuel Hospital ; Sun City Hospital, Inc., d/b/a South Bay Hospital; Memorial Healthcare Group, Inc., d/b/a Specialty Hospital Jacksonville; HCA Health Services of Florida, Inc., d/b/a St. Lucie Medical Center; Galen of Florida, Inc., d/b/a St. Petersburg General Hospital; West Florida - TCH, LLC, d/b/a Tampa Community Hospital; Okaloosa Hospital, Inc., d/b/a Twin Cities Hospital; University Hospital, Ltd., d/b/a University Hospital and Medical Center; West Florida Regional Medical Center, Inc., d/b/a West Florida Hospital; and Columbia Hospital Corporation of South Broward, d/b/a Westside Regional Medical Center Miami Beach Healthcare Group, Ltd., d/b/a Aventura Hospital and Medical Center; HCA Health Services of Florida, Inc., d/b/a Blake Medical Center; Galencare, Inc., d/b/a Brandon Regional Hospital; Tallahassee Medical Center, Inc., d/b/a Capital Regional Medical Center; Central Florida Regional Hospital, Inc., d/b/a Central Florida Regional Hospital; Citrus Memorial Hospital, Inc., d/b/a Citrus Memorial Hospital; Sarasota Doctors Hospital, Inc., d/b/a Doctors Hospital of Sarasota; Englewood Community Hospital, Inc., d/b/a Englewood Community Hospital; Fawcett Memorial Hospital, Inc., d/b/a Fawcett Memorial Hospital; Fort Walton Beach Medical Center, Inc., d/b/a Fort Walton Beach Medical Center; Bay Hospital, Inc., d/b/a Gulf Coast Medical Center; JFK Medical Center Limited Partnership, d/b/a JFK Medical Center; JFK Medical Center Limited Partnership, d/b/a JFK Medical Center-North Campus; Kendall Healthcare Group, Ltd., d/b/a Kendall Regional Medical Center; Notami Hospitals of Florida, Inc., d/b/a Lake City Medical Center; Largo Medical Center, Inc., d/b/a Largo Medical Center; Largo Medical Center, Inc., d/b/a Largo Medical Center-Indian Rocks; Lawnwood Medical Center, Inc., d/b/a Lawnwood Regional Medical Center & Heart Institute; New Port Richey Hospital, Inc., d/b/a Medical Center of Trinity; New Port Richey Hospital, Inc., d/b/a Medical Center of Trinity West Pasco Campus; Memorial Healthcare Group, Inc., d/b/a Memorial Hospital Jacksonville; West Florida - MHT, LLC, d/b/a Memorial Hospital of Tampa; Plantation General Hospital Limited Partnership, d/b/a Mercy Hospital, a Campus of Plantation General Hospital ; North Florida Regional Medical Center, Inc., d/b/a North Florida Regional Medical Center; Galencare, Inc., d/b/a Northside Hospital; Norhtwest Medical Center, Inc., d/b/a Northwest Medical Center; HCA Health Services of Florida, Inc., d/b/a Oak Holl Hospital; Marion Community Hospital, Inc., d/b/a Ocala Regional Medical Center; Marion Community Hospital, Inc., d/b/a West Marion Community Hospital; Orange Park Medical Center, Inc., d/b/a Orange Park Medical Center; Osceola Regional Hospital, Inc., d/b/a Osceola Regional Medical Center; West Florida - PPH, LLC, d/b/a Palms of Pasadena Hospital; Palms West Hospital Limited Partnership, d/b/a Palms West Hospital; Plantation General Hospital Limited Partnership, d/b/a Plantation General Hospital; Poinciana Medical Center, Inc., d/b/a Poinciana Medical Center; Putnam Community Medical Center of North Florida, LLC, d/b/a Putnam Community Medical Center; Okeechobee Hospital, Inc., d/b/a Raulerson Hospital; HCA Health Services of Florida, Inc., d/b/a Regional Medical Center Bayonet Point; HCA Long Term Health Services of Miami, Inc., d/b/a Sister Emmanuel Hospital ; Sun City Hospital, Inc., d/b/a South Bay Hospital; Memorial Healthcare Group, Inc., d/b/a Specialty Hospital Jacksonville; HCA Health Services of Florida, Inc., d/b/a St. Lucie Medical Center; Galen of Florida, Inc., d/b/a St. Petersburg General Hospital; West Florida - TCH, LLC, d/b/a Tampa Community Hospital; Okaloosa Hospital, Inc., d/b/a Twin Cities Hospital; University Hospital, Ltd., d/b/a University Hospital and Medical Center; West Florida Regional Medical Center, Inc., d/b/a West Florida Hospital; and Columbia Hospital Corporation of South Broward, d/b/a Westside Regional Medical Center, Appellants, v. Agency for Health Care Administration, Appellee.
    Sacred Heart Health System, Inc. d/b/a Sacred Heart Hospital of Pensacola, Sacred Heart Health System, Inc. d/b/a Sacred Heart Hospital on the Emerald Coast and Sacred Heart Health System, Inc. d/b/a Sacred Heart Hospital on the Gulf, St. Vincent's Medical Center, Inc. d/b/a St. Vincent's Medical Center Riverside, St. Luke's-St. Vincent's Healthcare, Inc. d/b/a St. Vincent's Medical Center Southside and St. Vincent's Medical Center-Clay County, Inc. d/b/a St. Vincent's Medical Center-Clay County, Appellants, v. Agency for Health Care Administration, Appellee.
    CGH Hospital, Ltd d/b/a Coral Gables Hospital, Delray Medical Center, Inc. d/b/a Delray Medical Center, Good Samaritan Medical Center, Inc. d/b/a Good Samaritan Medical Center, Hialeah Hospital, Inc. d/b/a Hialeah Hospital, North Shore Medical Center, Inc. d/b/a North Shore Medical Center, North Shore Medical Center, Inc. d/b/a Florida Medical Center - a Campus of North Shore, Palm Beach Gardens Community Hospital, Inc. d/b/a Palm Beach Gardens Medical Center, Lifemark Hospitals of Florida, Inc. d/b/a Palmetto General Hospital, St. Mary's Medical Center, Inc. d/b/a St. Mary's Medical Center and West Boca Medical Center, Inc. d/b/a West Boca Medical Center, Appellants, v. Agency for Health Care Administration, Appellee.
    Sacred Heart Health System, Inc. d/b/a Sacred Heart Hospital of Pensacola, Sacred Heart Health System, Inc. d/b/a Sacred Heart Hospital on the Emerald Coast and Sacred Heart Health System, Inc. d/b/a Sacred Heart Hospital on the Gulf and St. Vincent's Medical Center, Inc. d/b/a St. Vincent's Medical Center Riverside, St. Luke's-St. Vincent's Healthcare, Inc. d/b/a St. Vincent's Medical Center Southside and St. Vincent's Medical Center-Clay County, Inc. d/b/a St. Vincent's Medical Center-Clay County, Appellants, v. Agency for Health Care Administration, Appellee.
    CGH Hospital, Ltd d/b/a Coral Gables Hospital, Delray Medical Center, Inc. d/b/a Delray Medical Center, Good Samaritan Medical Center, Inc. d/b/a Good Samaritan Medical Center, Hialeah Hospital, Inc. d/b/a Hialeah Hospital, North Shore Medical Center, Inc. d/b/a North Shore Medical Center, North Shore Medical Center, Inc. d/b/a Florida Medical Center - a Campus of North Shore, Palm Beach Gardens Community Hospital, Inc. d/b/a Palm Beach Gardens Medical Center, Lifemark Hospitals of Florida, Inc. d/b/a Palmetto General Hospital, St. Mary's Medical Center, Inc. d/b/a St. Mary's Medical Center and West Boca Medical Center, Inc. d/b/a West Boca Medical Center, Appellants, v. Agency for Health Care Administration, Appellee.
    Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital Heartland Medical Center, Florida Hospital Orlando, and Florida Hospital Wachula; Florida Hospital Orlando, and Florida Hospital Wachula; Florida Hospital Waterman, Inc.; Florida Hospital Zephyrhills, Inc.; Memorial Health Systems, Inc. d/b/a Florida Hospital Memorial Medical Center; Memorial Hospital Flagler, Inc. ; Memorial Hospital-West Volusia, Inc., d/b/a Florida Hospital Deland; Pasco-Pinellas Hillsborough Community Health System, Inc., d/b/a Florida Hospital Wesley Chapel; Southeast Volusia Healthcare Corporation, d/b/a Florida Hospital New Smyrna; Southwest Volusia Healthcare Corporation, d/b/a Florida Hospital Fish Memorial; Tarpon Springs Hospital Foundation, Inc., d/b/a Florida Hospital North Pinellas; and University Community Hospital, Inc., d/b/a Florida Hospital North Pinellas; and University Community Hospital, Inc., d/b/a Florida Hospital Carrollwood, Florida Hospital at Connerton-ltach, and Florida Hospital Tampa, Appellants, v. Agency for Health Care Administration, Appellee.
    Bayfront HMA Medical Center, LLC, d/b/a Bayfront Health - St. Petersburg; Citrus HMA, LLC, d/b/a Seven Rivers Regional Medical Center; Crestview Hospital Corporation, d/b/a North Okaloosa Medical Center; Haines City HMA, LLC, d/b/a Heart of Florida Regional Medical Center; Hernando HMA, LLC, d/b/a Bayfront Health-Brooksville and Bayfront Health - Spring Hill; HMA Santa Rosa Medical Center, LLC; Key West HMA, LLC, d/b/a Lower Keys Medical Center; Lake Shore HMA, LLC, d/b/a Shands Lake Shore Regional Medical Center ; Lake Wales Hospital Corporation d/b/a Lake Wales Medical Center; Live Oak HMA, LLC, d/b/a Shands Live Oak Regional Medical Center ; Naples HMA, LLC, d/b/a Physicians Regional Medical Center - Pine Ridge and Physicians Regional Medical Center - Collier Boulevard; Melbourne HMA, LLC; Munroe HMA Hospital, LLC, d/b/a Munroe Regional Medical Center; Osceola SC, LLC, d/b/a St. Cloud Regional Medical Center; Pasco Regional Medical Center, LLC, d/b/a Bayfront Health - Dade City; Port Charlotte HMA, LLC d/b/a Bayfront Health - Port Charlotte; Punta Gorda HMA, LLC, d/b/a Bayfront Health Punta Gorda ; Rockledge HMA, LLC; Sebastian Hospital, LLC, d/b/a Sebastian River Medical Center; Sebring Hospital Management Associates, LLC, d/b/a Highlands Regional Medical Center; Starke HMA, LLC, d/b/a Shands Starke Regional Medical Center ; and Venice HMA, LLC, d/b/a Venice Regional Bayfront Health, Appellants, v. Agency for Health Care Administration, Appellee.
    Cape Canaveral Hospital, Inc., Holmes Regional Medical Center, Inc., and Viera Hospital, Inc. Appellants, v. Agency for Health Care Administration, Appellee.
    Bayfront HMA Medical Center, LLC, d/b/a Bayfront Health - St. Petersburg; Citrus HMA, LLC, d/b/a Seven Rivers Regional Medical Center; Crestview Hospital Corporation, d/b/a North Okaloosa Medical Center; Haines City HMA, LLC, d/b/a Heart of Florida Regional Medical Center; Hernando HMA, LLC, d/b/a Bayfront Health-Brooksville and Bayfront Health - Spring Hill; HMA Santa Rosa Medical Center, LLC; Key West HMA, LLC, d/b/a Lower Keys Medical Center; Lake Shore HMA, LLC, d/b/a Shands Lake Shore Regional Medical Center ; Lake Wales Hospital Corporation d/b/a Lake Wales Medical Center; Live Oak HMA, LLC, d/b/a Shands Live Oak Regional Medical Center ; Naples HMA, LLC, d/b/a Physicians Regional Medical Center - Pine Ridge and Physicians Regional Medical Center - Collier Boulevard; Melbourne HMA, LLC; Munroe HMA Hospital, LLC, d/b/a Munroe Regional Medical Center; Osceola SC, LLC, d/b/a St. Cloud Regional Medical Center; Pasco Regional Medical Center, LLC, d/b/a Bayfront Health - Dade City; Port Charlotte HMA, LLC, d/b/a Bayfront Health - Port Charlotte; Punta Gorda HMA, LLC, d/b/a Bayfront Health Punta Gorda ; Rockledge HMA, LLC; Sebastian Hospital, LLC, d/b/a Sebastian River Medical Center; Sebring Hospital Management Associates, LLC, d/b/a Highlands Regional Medical Center; Starke HMA, LLC, d/b/a Shands Starke Regional Medical Center ; and Venice HMA, LLC, d/b/a Venice Regional Bayfront Health, Appellants, v. Agency for Health Care Administration, Appellee.
    Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital Heartland Medical Center, Florida Hospital Orlando, and Florida Hospital Wachula; Florida Hospital Orlando, and Florida Hospital Wachula; Florida Hospital Waterman, Inc.; Florida Hospital Zephyrhills, Inc.; Memorial Health Systems, Inc. d/b/a Florida Hospital Memorial Medical Center; Memorial Hospital Flagler, Inc. ; Memorial Hospital-West Volusia, Inc., d/b/a Florida Hospital Deland; Pasco-Pinellas Hillsborough Community Health System, Inc., d/b/a Florida Hospital Wesley Chapel; Southeast Volusia Healthcare Corporation, d/b/a Florida Hospital New Smyrna; Southwest Volusia Healthcare Corporation, d/b/a Florida Hospital Fish Memorial; Tarpon Springs Hospital Foundation, Inc., d/b/a Florida Hospital North Pinellas; and University Community Hospital, Inc., d/b/a Florida Hospital Carrollwood, Florida Hospital at Connerton-ltach, and Florida Hospital Tampa, Appellants, v. Agency for Health Care Administration, Appellee.
    Cape Canaveral Hospital, Inc., Holmes Regional Medical Center, Inc., and Viera Hospital, Inc. Appellants, v. Agency for Health Care Administration, Appellee.
    No. 1D17-2027 No. 1D17-2028 No. 1D17-2033 No. 1D17-2034 No. 1D17-2035 No. 1D17-2038 No. 1D17-2040 No. 1D17-2041 No. 1D17-2042 No. 1D17-2045 No. 1D17-2047 No. 1D17-2049 No. 1D17-2051 No. 1D17-2053 No. 1D17-2054 No. 1D17-2057
    District Court of Appeal of Florida, First District.
    April 26, 2019
    Stephen A. Ecenia, David M. Maloney, Tana D. Storey, and Gabriel F.V. Warren of Rutledge Ecenia, Tallahassee; Kyle L. Kemper and Steven Mindlin of Sundstrom & Mindlin, LLP, Tallahassee; Joanne B. Erde and Donna Holshouser Stinson of Duane Morris LLP, Miami; Michael J. Glazer and E. Dylan Rivers of Ausley McMullen, Tallahassee; and Christopher C. Kokoruda and Laura E. Wade of the Miami-Dade County Attorney's Office, Miami, for Appellants.
    Joseph Goldstein of Shutts & Bowen LLP, Fort Lauderdale; Amber Stoner of Shutts & Bowen LLP, Tallahassee; and Stephen T. Maher of Shutts & Bowen LLP, Miami, for Appellee.
   M.K. Thomas, J.

In this consolidated matter, Appellants ("the Hospitals") appeal a final order declaring valid the Agency for Health Care Administration's ("the Agency") existing and proposed rules which implement legislative mandates to reduce reimbursement rates for Medicaid outpatient hospital services. The Hospitals argue the existing and proposed versions of Florida Administrative Code Rule 59G-6.030 are an invalid exercise of delegated legislative authority. We agree and reverse.

I. Facts

The Hospitals provide inpatient and outpatient hospital care in Florida to Medicaid patients. Reimbursement for the services provided is based on Medicaid rates calculated by the Agency each year. The Agency is the single state agency authorized to make Medicaid payments for services rendered. See § 409.902(1), Fla. Stat.

Historically, the Agency reimbursed hospitals on a fee-for-service basis. Under the fee-for-service model, hospitals submitted claims to the Agency, and reimbursement was paid at an established rate. The Agency set reimbursement rates on the most recent complete and accurate cost reports submitted by each hospital, re-established the Outpatient Hospital Reimbursement Plan ("Outpatient Plan"), and adopted the Outpatient Plan by reference in Rule 59G-6.030. Beginning in 2005, the Legislature periodically included provisions in its General Appropriations Acts ("GAA"), directing the Agency to reduce hospital outpatient reimbursement rates to comply with specific budget reductions for that year. These reductions are referred to as Medicaid Trend Adjustments ("MTA").

In 2005, the GAA reported that funds appropriated for Medicaid outpatient hospital services reflected a cost savings of $16,796,807.00 "as a result of modifying the reimbursement methodology for outpatient hospital rates." The GAA further provided: "[T]he agency shall implement a recurring methodology in the [Outpatient Plan] that may include, but is not limited to, the inflation factor, variable cost target, county rate ceiling or county ceiling target rate to achieve the cost savings." In response, the Agency amended the Outpatient Plan to provide: "Effective July 1, 2005, a recurring rate reduction shall be established until an aggregate total estimated saving of $16,796,807 is achieved each year." This directive became known as "cut 1." The Outpatient Plan was then adopted by reference in Rule 59G-6.030. After 2005, the Legislature mandated five more relevant MTA reductions through the GAAs, which are known as "cuts 2-4" and "cuts 7-8." The Agency used similar language in the Outpatient Plans to address cuts 2, 3, and 8. Regarding cut 4, in the Outpatient Plan, the Agency restated the GAA as follows, "[the Agency] shall implement a recurring methodology to reduce individual outpatient hospital rates proportionately ...." In total, the Legislature directed the Agency to implement cuts of approximately $ 224 million.

From 2005 through 2009, the Agency, after collaboration with the hospitals, achieved the MTA reductions using each hospital's unaudited costs and actual occasions of service in the year of the reduction. The Agency then utilized an Excel spreadsheet and the "goal seek" function therein to proportionally calculate the reduction to each hospital's outpatient rates. The Agency's goal was to spread the rate reductions equally among the hospitals.

In 2011, the Legislature instituted what became known as the "unit cost cap," a ceiling on Medicaid outpatient rates. Section 409.908, Florida Statutes, was amended to provide: "The Agency shall establish rates at a level that ensures no increase in statewide expenditures resulting from a change in unit costs effective July 1, 2011. Reimbursement rates shall be as provided in the General Appropriations Act." § 409.908(23)(a), Fla. Stat. (2011). The GAA that year further elaborated:

In establishing rates through the normal process, prior to including this reduction [cut 7], if the unit cost is equal to or less than the unit cost used in establishing the budget, then no additional reduction in rates is necessary. In establishing rates through the normal process, if the unit cost is greater than the unit cost used in establishing the budget, then rates shall be reduced by an amount required to achieve this reduction, but shall not be reduced below the unit cost used to establish the budget.

"Unit cost" was not defined by statute or the GAA. Additionally, no insight was provided regarding reference to establishing rates through the "normal process."

Existing Rule 59G-6.030 did not set out the methodology the Agency used to calculate either the initial 2011 unit cost base or the subsequent years' unit cost(s). However, the Agency has continued to apply the unit cost cap with reference to a 2011 unit cost base of $141.51. In calculating the unit cost base, the Agency used an unadopted fraction methodology in which the numerator, the total Medicaid outpatient payments to all hospitals, is divided by a denominator, the number of Medicaid occasions of service for all hospitals.

After 2011, the Agency has compared the 2011 unit cost base to each years unit cost. However, the Agency changed the fraction methodology originally used to calculate unit cost base. As instructed in the GAA, the Agency began dividing the same numerator, the total dollar amount of Medicaid payments made to all hospitals, by a different denominator, now the number of Medicaid occasions of service for all hospitals, except in children's and rural hospitals . Invariably, this method results in a unit cost that is higher than if the services of all hospitals were included.

In setting the individual hospitals' reimbursement rates, the Agency first applied cut 7 in the same manner as cuts 1-4. The result was a 16.5% rate adjustment for cut 7, which was substantially higher than previous cuts, which were usually in the 12% range. To make the adjustment more consistent with the Legislature's expectations, the Agency adjusted the method for calculating the reduction. The rate setting methodology used for cuts 1-4 applied occasions of service based on a hospital's current cost report. Regarding cuts 7-8, the Agency applied Medicaid budgeted occasions of service. Medicaid occasions of service are actual paid claims which match up with the cost reporting year; Medicaid budgeted occasions of service are claims which were budgeted for that upcoming fiscal year for which the cut was going to take place.

In 2014, the Legislature directed the Agency to transition from a fee-for-service model to a managed care model. Under the fee-for-service model, Medicaid payments are made directly by the Agency to hospitals; while under the managed care model, the payments are made by third-party Medicaid managed care plans pursuant to rates negotiated and set forth in third-party contracts between Medicaid managed care plans and hospitals. The number of Medicaid recipients enrolled in managed care plans now far exceeds those being paid on a fee-for-service basis. With the decline of the number of fee-for-service claims, the rate reductions substantially increased as the cuts were being apportioned over a much smaller number of claims.

Although cut 8 was the last rate cut mandated by the Legislature, the Agency continued to apply the previous and recurring cuts in subsequent years. Three years after cut 8 was enacted, the Agency changed its method to apply cut 7 and 8 reductions. Rather than using budgeted claims as it did previously, the Agency calculated the cut 7 and 8 reductions using actual occasions of service as it did for cuts 1-4.

While the transition to managed care began in 2014, the decrease in fee-for-service claims was first reflected in the data used to set the 2016/2017 hospital outpatient rates, effective July 1, 2016. Approximately 75% to 80% of Florida Medicaid claims are now paid under Medicaid managed care.

Before the 2016 legislative session, a legislative proposal recommended determining prospective Medicaid outpatient reimbursement rates using a completely new method called Enhanced Ambulatory Patient Groups ("EAPGs"). This new method would eliminate dependence on hospital cost reports and complicated calculations to determine the effects of the MTA reductions on reimbursement rates. When it became apparent that the EAPGs method would not be used for the 2016/2017 fiscal year, the Agency basically repeated the 2015/2016 process but adjusted the occasions of service used for calculating the hospital's rate reductions for cuts 7-8 by adding 14,000 occasions of service. At the end of July, the Agency published new rates effective July 1, 2016. The language of the implementing statutes and GAAs remained unchanged.

The Hospitals filed actions challenging the Agency's MTA methodologies as invalid exercises of delegated legislative authority. In response, the Agency published a proposed Rule 59G-6.030. Thereafter, the Hospitals filed a subsequent Petition challenging both the existing and proposed rules.

In the Final Order, the ALJ found that neither the existing nor proposed Rule 59G-6.030 exceeds the grant of legislative authority; specifically, the ALJ concluded neither the existing nor the proposed rules regarding MTAs enlarge, modify or contravene the specific provisions of law implemented; are not arbitrary or capricious; are not vague; and do not vest unbridled discretion in the Agency. The ALJ held similarly with regard to the unit cost cap. The Final Order further concluded that despite this legislatively mandated change in Medicaid reimbursement and corresponding budget changes, the Agency never changed its methodology to account for the transition to managed care in the calculation of cuts 1-4.

The Hospitals appeal asserting the ALJ erred in declaring both the existing and proposed rules as valid exercises of delegated legislative authority and that implementing the MTA and unit cost cap methodologies does not constitute an invalid unadopted rule under section 120.52(8)(a), (c)-(e), Florida Statutes. The Hospitals argue that while the Agency has implemented a variety of different methodologies to apply the MTA reductions since 2005, it did not engage in rulemaking to adopt the methodologies into the Outpatient Plan. The Hospitals deny the unveiling of the proposed rule resolved the deficiencies because it still fails to provide an MTA recurring methodology as required by implementing law.

II. Analysis

Standard of Review

The standard of review by which we determine whether an agency has exceeded its rulemaking authority or enlarged the specific provisions of law purportedly implemented is de novo . See, e.g., State Bd. of Trs. of Internal Improvement Tr. Fund v. Day Cruise Ass'n, Inc., 794 So.2d 696, 701 (Fla. 1st DCA 2001). An ALJ's factual findings are reviewed for competent, substantial evidence. Moreland v. Agency for Persons with Disabilities , 19 So.3d 1009, 1011 (Fla. 1st DCA 2009) (citing § 120.68(7), Fla. Stat.). If challenging an existing rule, the petitioner has the burden of proving by a preponderance of the evidence that the existing rule is an invalid exercise of delegated legislative authority. § 120.56(3)(a), Fla. Stat. If challenging a proposed rule, the burden shifts to the agency to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority. § 120.56(2)(a), Fla. Stat.; Fla. Bd. of Med. v. Fla. Acad. of Cosmetic Surgery , 808 So.2d 243, 251 (Fla. 1st DCA 2002).

The Statutes and GAAs

The Agency makes payment to qualified providers as set forth in Chapter 409, Florida Statutes, subject to the limitations or directions enumerated in the GAAs. § 409.902(1), Fla. Stat. Section 409.908, Florida Statutes, provides:

Subject to specific appropriations, the agency shall reimburse Medicaid providers , in accordance with state and federal law, according to methodologies set forth in the rules of the Agency and in policy manuals and handbooks incorporated by reference therein . These methodologies may include fee schedules, reimbursement methods based on cost reporting, negotiated fees, competitive bidding pursuant to s. 287.057, and other mechanisms the agency considers efficient and effective for purchasing services or goods on behalf of recipients. ... Further, nothing in this section shall be construed to prevent or limit the agency from adjusting fees, reimbursement rates, lengths of stay, number of visits, or number of services, or making any other adjustments necessary to comply with the availability of moneys and any limitations or directions provided for in the General Appropriations Act, provided the adjustment is consistent with legislative intent. (Emphasis added.)

Section 409.905, Florida Statutes, also gives the Agency the authority to make any adjustments necessary to comply with the funds allocated and which are consistent with directions set forth in the GAA. Specific to outpatient services, the statute directs, "[t]he agency shall implement a prospective payment methodology for establishing reimbursement rates for outpatient hospital services." § 409.905(6)(b), Fla. Stat. (emphasis added).

The various GAAs further instruct, "the Agency shall implement a recurring methodology in the Title XIX Outpatient Hospital Reimbursement Plan that may include, but not limited to, the inflation factor, variable cost savings." (Emphasis added.)

A. Both the Existing and Proposed Rules Relating to the MTAs Enlarge, Modify, or Contravene the Enabling Statutes.

An agency may not propose or create a rule that "enlarges, modifies, or contravenes the specific provisions of ... the language of the enabling statute." §§ 120.52(8)(c), (9), 120.56(2) - (3), Fla. Stat. Existing Rule 59G-6.030 provides, "[r]eimbursement to participating hospitals for services provided shall be in accordance with the Florida Title XIX Outpatient Hospital Reimbursement Plan (the Plan), Version XXVII, effective July 1, 2016, incorporated by reference ..." The companion Outpatient Plan provides, "Effective July 1, 2005, a recurring rate reduction shall be established ... " (Emphasis added.) The Outpatient Plan does not describe the methods established.

Upon the filing of the petition challenging existing Rule 59G-6.030, the Agency published a proposed rule. It addressed how the Agency had set the 2016 rates but did not establish a recurring methodology. The proposed rule did not adopt the methodologies that the Agency applied to calculate cuts 7-8 when it set the 2011 through 2015 outpatient rates. Nor did the proposed rule set forth a methodology for cuts 1-4. Rather, the stated purpose of the proposed rule was merely to "clarify" how the Agency had already set the 2016 rates. Therefore, the proposed rule, like the existing rule, provided no detail or announcement of a recurring MTA methodology.

Below, the ALJ determined that the implementing statutes require the Agency to adopt its rate-setting methodologies as a rule in the Outpatient Plan. And specific to the MTA, the ALJ further found the GAAs require that the Agency adopt a "recurring" MTA methodology to achieve the mandated savings. The Final Order, however, concluded the Agency had not adopted any recurring MTA methodologies into any version of the existing rule and Outpatient Plan. The Final Order found that "[t]he versions of the rule 59G-6.030 adopted up to and including the existing rule did little more than restate language in the statutes and the GAAs." The Final Order made specific findings that the Agency applied a variety of MTA methodologies to reduce hospital outpatient rates in an attempt to achieve the savings mandated by the GAAs from 2005 through 2016, and that these methodologies were not set forth in a rule. Further, the Final Order found the proposed rule simply parroted the language in the GAA-that the Agency was required to adopt a recurring methodology to achieve the mandated savings. However, no such recurring methodology is provided.

Despite its finding that the Agency had not implemented methodologies as directed, the ALJ ultimately concluded that neither the existing nor proposed rules enlarged, modified or contravened the specific provisions of law implemented. This conclusion rested entirely upon deference to the Agency's interpretation of the implementing statutes. But, the ALJ's deference to Agency interpretation was in error. Based on the clear and unambiguous language of the statute, the Agency was required to adopt a rule setting forth the methodology by which it would reimburse Medicaid providers and apply the MTAs. See § 409.908, Fla. Stat. Prior to passage of the newly enacted article V, section 21 of the Florida Constitution, this Court deferred to an agency's interpretation of statutes it implemented unless such interpretation was clearly erroneous. See, e.g. , Falk v. Beard , 614 So.2d 1086, 1089 (Fla. 1993) ; Addison v. Agency for Persons with Disabilities , 113 So.3d 1053, 1056 (Fla. 1st DCA 2013). Notably, this deference does not extend to proposed rules which are not to be presumed valid or invalid. See § 120.56(2)(c), Fla. Stat.

Under the new constitutional amendment, appellate courts no longer defer to agency interpretation; rather, a de novo standard of review applies. Art. V, § 21, Fla. Const. (2019). Here, we decline to address the question of whether this amendment is retroactively applied, as it is not necessary to our legal analysis, because even if deference were provided to the Agency's interpretation of the statute, "judicial adherence to the Agency's view is not demanded when it is contrary to the statute's plain meaning," as is the case here. PAC for Equality v. Dep't of State, Fla. Elections Comm'n , 542 So.2d 459, 460 (Fla. 2d DCA 1989), quoted in Werner v. Dep't of Ins. & Treasurer , 689 So.2d 1211, 1214 (Fla. 1st DCA 1997) ; see also Kessler v. Dep't of Mgmt. Servs., Div. of State Grp. Ins. , 17 So.3d 759, 762 (Fla. 1st DCA 2009) ("Judicial deference never requires that courts adopt an agency's interpretation of a statute or rule when the agency's interpretation cannot be reconciled with the plain language of the statute...").

The language of the implementing statutes and the GAAs is clear and unambiguous. As the Final Order found, the GAAs unambiguously state that the Agency must "implement a recurring methodology in the [Outpatient Plan] ... to achieve the cost savings." Similarly, section 409.905(6)(b) requires the Agency to "implement a methodology" for establishing rates, and section 409.908 requires the Agency to reimburse Medicaid providers "according to methodologies set forth in the rules of the agency and in policy manuals and handbooks incorporated by reference hereto." Existing Rule 59G-6.030 does little more than restate language in the statute and GAAs. A plain reading of section 409.908 certainly contemplates more. Thus, the existing rule is improper as it fails to adopt a methodology "set forth in the rules of the agency" in contravention of the statutes implemented.

Regarding the proposed rule, the Agency merely supplemented the existing rule with an announcement of the 2016 rates. The proposed rule does not adopt the methodologies that the Agency applied to calculate cuts 7-8 for the purpose of setting the 2011 through 2015 rates. The proposed rule certainly did not provide explanation as to the different methodology used for cuts 1-4. The proposed rule states, "Additions and changes to this section from the preceding year(s) are intended to clarify the rate-setting process, not to make substantive changes to it." In fact, the Agency did not even adopt the methodology that it actually used to set the 2016 rates. In calculating cuts 7-8 for the 2016 rates, the Agency utilized the actual occasions of service to calculate the 2015 rates with the addition of 14,000 claims, while the proposed rule directs calculation based on the budgeted occasions of service used to set the 2015/2016 rates but without the addition of 14,000 claims to account for managed care transition.

At the merits hearing, the Agency argued that it had complied with the implementing statutes and GAAs as it adopted a methodology in setting the rates-that reimbursement rate reductions were to be proportionally implemented among the hospitals. Accordingly, the specific math for achieving that proportional reduction did not have to be fixed, recurring, or adopted into a rule. However, on appeal, the Agency changes its position and argues it exercised its discretion and chose not to adopt a methodology, and no methodology existed to be adopted by rule. The Agency asserts that each year it carried out the MTA reductions using "simple math," and because the use of math is not a "methodology" contemplated by section 409.908, it did not need to promulgate its use of math as a rule. The Agency claims section 409.908, which applies to adjustments such as the MTA, grants the Agency the authority and flexibility to make adjustments to reimbursement rates that may be necessary when the Legislature chooses to impose limitations on reimbursements, without promulgating its mathematical calculations for such adjustments in a rule. The Agency claims its conclusion is bolstered by the language in the GAAs, which simply required it to "implement" (not adopt) a process for reaching the specified MTA reductions each year that were to be applied. However, this argument ignores the GAA directive that the recurring methodology be described in the Outpatient Plan.

The Agency does not suggest that the implementing statutes exempt it from the rulemaking requirement of the APA. Even if the Agency practices were "just math," there is nothing in the statutes that establishes "math" as an exception to the Legislative directive that all reimbursement methodologies must be contained in the Outpatient Plan and promulgated as a rule. The APA defines a "rule" as "each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency ...." § 120.52(16), Fla. Stat. The Final Order made numerous findings that the Agency's MTA methodology meets the definition of a "rule." As the Agency has not cross-appealed these findings, it is bound by them, and as such, the Agency's MTA methodology is a rule that the Agency must adopt through rulemaking. It is well established Florida law that rulemaking is not a matter of agency discretion. § 120.54(1), Fla. Stat. Florida courts have long recognized that "every agency action is 'a recognizable rule or an order' under the APA or is 'incipiently a rule or order.' " Friends of Hatchineha, Inc. v. State, Dep't of Envtl. Regulation , 580 So.2d 267, 271 (Fla. 1st DCA 1991) ; see also § 120.52(2), Fla. Stat.

The Final Order is silent regarding whether the Agency's unadopted methodologies achieved the mandated savings. Thus, despite a clear legislative directive to achieve a specific dollar amount of savings, the Agency did not prove at the hearing whether its methodologies have achieved the legislative mandates or resulted in cuts less than or in excess of the cuts authorized. The Agency defends that the absence of auditing is irrelevant to the outcome of this proceeding because the "math" the Agency used was "correct," and the statutes do not impose an auditing requirement. We disagree. As the Agency never implemented its methodology by rule or in the Outpatient Plan, and never conducted an audit, the accuracy of the MTA reductions cannot be verified. The Agency's failure to verify its procedures were achieving the legislatively directed cuts and to promulgate its methodologies as rules constitutes an enlargement, modification, and contravention of the laws implemented.

We, therefore, find that both the existing and proposed rules are invalid under section 120.52(8)(c), Florida Statutes.

B. Both the Existing and Proposed Rules Relating to the MTAs are Vague, Fail to Establish Adequate Standards for Agency Decision, and Vest Unbridled Discretion in the Agency.

A rule is an invalid exercise of delegated legislative authority when "[t]he rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the Agency[.]" § 120.52(8)(d), Fla. Stat. "An administrative rule is invalid under section 120.52(8)(d), Florida Statutes, if it forbids or requires the performance of an act in terms that are so vague that persons of common intelligence must guess at its meaning and differ as to its application." State, Dep't of Fin. Servs. v. Peter R. Brown Const., Inc. , 108 So.3d 723, 728 (Fla. 1st DCA 2013) (citing Bouters v. State , 659 So.2d 235, 238 (Fla. 1995) ).

Under the existing rule, the Agency used occasions of service to achieve cuts 1-4, while it used budgeted claims of service for cuts 7-8. Yet, the language related to cuts 1-4 and 7-8 are nearly identical. Thus, under the rule that states, "[Agency] shall implement a recurring methodology," the Agency was able to implement two separate methodologies, without change to the rule. Essentially, by applying the rule as it has, the Agency has determined the language in the existing rule is so vague "persons of common intelligence" could "differ as to its application." Id.

Despite amendment, the proposed rule fails to establish adequate standards and vests unbridled discretion in the Agency. Although the proposed rule indicates cuts 1-4 will utilize occasions of service, while cuts 7-8 will utilize budgeted occasions of service, questions remain as to whether these are the set methodologies which must be used by the Agency in administering the MTAs. In the first section of the proposed rule, it states "[the Agency] shall implement a methodology for establishing base reimbursement rates" without setting forth the actual methodology and certainly not a "recurring" methodology. Additionally, the lack of verification via audit or otherwise to determine if the rate reductions are GAA compliant further supports a vesting of unbridled discretion in the Agency. Thus, the proposed rule fails, just as the existing rule does.

C. Both the Existing and Proposed Rules Concerning the Unit Cost Cap are Invalid Exercises of Delegated Legislative Authority and are Unadopted Rules.

In 2011, the Legislature directed that a unit cost comparison be implemented in the rate process. The GAA provided:

In establishing rates through the normal process, prior to including this reduction [cut 7], if the unit cost is equal to or less than the unit cost used in establishing the budget, then no additional reduction in rates is necessary. In establishing rates through the normal process, if the unit cost is greater than the unit cost used in establishing the budget, then rates shall be reduced by an amount required to achieve this reduction, but shall not be reduced below the unit cost used in establishing the budget.

The Agency failed to include in its existing rule the methodology used to calculate the unit cost cap. Rather, the existing rule simply mirrors the language in the GAA, stating, "Effective July 1, 2011, [the Agency] shall establish rates at a level that ensures no increase in statewide expenditures resulting from a change in unit costs." The existing rule does not define "unit cost" or set out the methodology used to calculate either the initial 2011 unit cost base or the subsequent years' unit cost(s).

When originally calculating the unit cost cap in 2011, the Agency divided the total dollar amount of Medicaid payments made to hospitals by the number of Medicaid occasions of service for all hospitals. Since 2011, it has compared the 2011 unit cost base to the current unit cost, calculated by dividing the total dollar amount of Medicaid payments made to all hospitals by the number of Medicaid occasions of service for all hospitals, except in children's and rural hospitals, to determine whether the unit cost cap would require a further rate reduction, after applying the MTA cuts.

The GAA instructed the Agency to compare the unit cost set in 2011 to the unit cost in future years. We find merit in the Hospitals' argument that the Agency's comparison of unit costs that are not calculated the same way constitutes unbridled discretion. Dividing the total amount of Medicaid payments by a smaller number of occasions of service inevitably results in the subsequent years' unit cost being higher, which could result in additional reductions (where it would not if the unit cost was calculated consistent with that methodology used in 2011). If the unit cost is not calculated the same way, a valid comparison is not possible.

While the Agency has not adopted as a rule the methodology for the unit cost cap into the Outpatient Plan, it has implemented a methodology to calculate rates. This methodology constitutes general applicability that implements, interprets, or prescribes law or policy, and meets the definition of a rule, yet the Agency did not adopt the methodology as a rule. As such, the unit cost cap is invalid as it was not adopted through rulemaking. § 120.52(8)(a), Fla. Stat.

III. Conclusion

For the foregoing reasons, we hold that the ALJ erred in concluding the existing and proposed Rule 59G-6.030 are valid exercises of delegated legislative authority. The existing and proposed rules go beyond the powers, functions, and duties delegated by the Legislature, and the methodologies utilized by the Agency are unadopted rules.

REVERSED .

Bilbrey and Winokur, JJ., concur.

      120 hospitals comprised of for-profit, not-for-profit, and governmental entities.

      The Legislature enacted cuts 5-6 in 2009 and 2010. However, these cuts were not taken pursuant to GAA instruction.

      The Outpatient Plan provides the following definition: "Florida Medicaid outpatient occasions of service - the number of distinct revenue center code line items listed on a valid claim that a hospital has filed ... and that have been paid by the fiscal agent, which represent covered Florida Medicaid outpatient services."

      In applying cut 1 in 2015/2016, the Agency divided $16,796,807 (GAA reduction mandate) by 6,385,424 claims, resulting in an average cut per claim of $2.63. The following year, with the transition to Medicaid managed care, that same cut 1 of $16,796,807 was divided by only 3,336,762 claims, resulting in an average cut per claim of $5.03. The same analysis is true for cuts 2-4. Regarding cuts 7-8, the Agency changed its methodology. Thus, the Hospitals provided outpatient services to essentially the same number of Medicaid recipients for rate periods 2015/16 and 2016/17 (but a significantly greater percentage were through managed care), yet there was a 91% increase in the average reduction per claim associated with each of cuts 1-4.

      The Final Order contains no factual findings as to how this number was calculated by the Agency.

      The Agency argues that the Hospitals do not have standing to challenge the unit cost cap calculation. However, as found by the ALJ, the Hospitals have standing as they are substantially affected by the rule. See § 120.56(1), Fla. Stat.

      To date, the unit cost cap has not been exceeded. However, the Hospitals argue this is an inevitable result due to the migration to managed care.


author: PER CURIAM.

text:
    Kenny Williams HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-4500
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019
    Philip T. Dunlop, Orlando, for Appellant.
    Ashley Moody, Attorney General, and Susan Bechard, Assistant Attorney General, Tampa, for Appellee.
    ORDER FOLLOWING SHOW-CAUSE PROCEEDING
   PER CURIAM.

Attorney Philip T. Dunlop, Florida Bar Number 180210, appeared before this court on Wednesday, March 6, 2019, to show cause why sanctions should not be imposed for his failure to comply with this court's orders.

Attorney Dunlop filed the notice of appeal in the trial court on November 1, 2018, and the notice was transmitted to this court on November 13. Because no filing fee accompanied the notice, on November 14 this court issued its standard fee order. The order required the appellant to submit to this court the $ 300 filing fee or indigency documentation within thirty days, failing which the appeal would be subject to dismissal and counsel subject to sanctions. Attorney Dunlop did not respond.

Also on November 14, this court issued an order listing three questions this court needed answered to assist it in properly classifying the appeal, which was from the denial of a motion to withdraw plea. Attorney Dunlop did not respond.

On December 10, the court followed up with an order directing Attorney Dunlop to respond to the November 14 orders within ten days or risk the imposition of sanctions. Again, Attorney Dunlop did not respond.

On February 19, 2019, this court issued an order requiring Attorney Dunlop to appear at the court's March 6 oral argument session to show cause why he should not be sanctioned for his failure to respond to the three orders just described. The order advised that if Attorney Dunlop complied with the three orders by 1 p.m. on Thursday, February 28, 2019, he could seek to discharge the order to show cause.

Attorney Dunlop appeared at the oral argument but was unable to adequately explain his failure to comply with this court's orders. He stated that his staff had failed to advise him of the orders and that he did not know about them until he received the order to show cause. When asked why he did not attempt to comply with the 2018 orders and seek to discharge the order to show cause, Attorney Dunlop stated that he thought all he was required to do was appear on March 6.

Attorney Dunlop stated that appellant's mother advised him that appellant wanted to dismiss the appeal, but after questioning from this court, Attorney Dunlop acknowledged that he needed to consult with appellant himself. The court provided Attorney Dunlop with seven more days to consult with his client and comply with the 2018 orders. On the seventh day, Attorney Dunlop submitted a response answering the three questions posed in one of the November 14 orders, but he did not submit a filing fee or indigency documentation as required by the other November 14 order. Three days later on March 15, the circuit court clerk submitted to this court the clerk's determination of appellant's insolvency and appointment of the public defender. It is not clear from the record whether Attorney Dunlop assisted appellant in applying for indigency status with the circuit court clerk. This court has now on its own motion discharged Attorney Dunlop from further representation of appellant in this appeal.

Due to Attorney Dunlop's failure to comply with this court's directives and the attendant delays, we hereby refer this matter to The Florida Bar for investigation and initiation of such proceedings as may be appropriate.

VILLANTI, SLEET, and SALARIO, JJ., Concur.


text:
    Michael MCALKICH, DOC #T75693, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4675
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019
    Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Bilal Ahmed Faruqui, Assistant Attorney General, Tampa; and Allison C. Heim, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
   PER CURIAM.

Michael McAlkich appeals his convictions and sentences following a jury trial, arguing that the trial court erred in imposing a prison releasee reoffender sentence on his conviction for battery on a law enforcement officer. The State properly conceded error on appeal. See Elmore v. State, 172 So.3d 465, 466 (Fla. 1st DCA 2015) ("It is undisputed that battery on a law enforcement officer is neither a qualifying nor an enumerated offense under the PRR statute. Moreover, the erroneous imposition of PRR status renders a sentence illegal." (first citing State v. Hearns, 961 So.2d 211, 212 (Fla. 2007), then citing Kirkland v. State, 71 So.3d 254, 255 (Fla. 2d DCA 2011) ) ). Accordingly, we affirm McAlkich's convictions and sentences on counts one and three without further comment, but we reverse McAlkich's sentence on count two and remand for the trial court to strike the PRR designation.

Affirmed in part; reversed in part; remanded.

KELLY, KHOUZAM, and SLEET, JJ., Concur.

      McAlkich filed a timely Florida Rule of Criminal Procedure 3.800(b)(2) motion challenging his PRR sentence on count two as unlawful before filing the initial brief in this case. Because the trial court failed to timely rule on the motion, it was deemed denied. See Fla. Crim. R. P. 3.800(b)(2)(B).

      The State also argued that McAlkich's sentence on count three for resisting an officer with violence should be reversed and remanded for imposition of a PRR sentence. However, because the State failed to cross-appeal McAlkich's sentence, the issue is not properly before us. See Pope v. State, 884 So.2d 328, 330 (Fla. 2d DCA 2004) (explaining that the State's failure to file a cross-appeal waived its argument that the trial court was required to impose a certain sentence).


author: Per Curiam.

text:
    Lauren Eileen CARR, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-401
    District Court of Appeal of Florida, First District.
    May 2, 2019
    Andy Thomas, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

A jury convicted Lauren Carr of organized fraud, and the court sentenced her to twelve years in prison. The evidence at trial showed that Carr owned a company that serviced several large homeowners' associations and that Carr defrauded the company's HOA clients, taking hundreds of thousands of dollars. On appeal, Carr argues that the trial court erred in giving one jury instruction and in refusing to give another. We review trial court's decisions on jury instructions only for an abuse of discretion, Kervin v. State , 195 So.3d 1181, 1182 (Fla. 1st DCA 2016), and we find none here.

First, Carr contends that the court was obligated to give a good-faith jury instruction. She proposed an instruction that said "it is a defense to the charge of theft if defendant has an honest, good faith belief that [she] had the right to possess" the victim's property. See Fla. Std. Jury Instr. 14.1 (marks omitted; punctuation altered). The court refused to give the instruction, finding the evidence did not support it. Carr now argues that there was evidence that she relied in good faith on an accountant's advice-specifically, that she could remove profits and other monies from her company's account. "The general rule is that a criminal defendant is entitled, upon request and by law, to a jury instruction on the law pertaining to the theory of defense if any evidence supports the theory, irrespective of how weak this evidence is." Barnes v. State , 108 So.3d 700, 702 (Fla. 1st DCA 2013). We conclude, as did the trial court, that no evidence supported the defense. The fraud alleged and proven took place before Carr removed the money from her company's account. And Carr's defense as to how other people's money wound up in her company's account was that someone else put it there. See Init. Br. at 15 ("Under the defense theory, someone else transferred or diverted the HOAs' funds to [Carr's company]."). Thus, there was no abuse of discretion in refusing the instruction.

Moreover, the jury convicted Carr of organized fraud, not the lesser included offense of theft. Good faith can be a defense to theft, see Johnson v. State , 228 So.3d 1164, 1167 (Fla. 1st DCA 2017), but the jury found Carr guilty of organized fraud, which means the jury necessarily found Carr engaged in a course of conduct with the "(a) intent to defraud, or (b) intent to obtain property by false or fraudulent pretenses." See Pizzo v. State , 945 So.2d 1203, 1207 (Fla. 2006) (enumerating elements necessary to prove violation of § 817.034(4)(a) ). Therefore, the good-faith defense as to theft would have made no difference. See Knight v. State , 267 So. 3d. 38, 2018 WL 944663 (Fla. 1st DCA Feb. 19, 2018) (noting that "failure to give a requested instruction on a necessarily lesser-included offense is harmless 'because the defendant is not entitled to an opportunity for a jury pardon' " (quoting Dean v. State, 230 So.3d 420, 426 (Fla. 2017) (Polston, J., concurring) ).

Second, Carr contends that the court erred in giving a willful-blindness instruction. The court instructed the jury that "[i]n some cases, the issue to be determined is whether the defendant had knowledge of a certain fact. Florida Law recognizes a concept known as willful blindness, which is sometimes referred to as 'deliberate avoidance of positive knowledge.' " The court further instructed that someone "who engages in willful blindness is deemed to have knowledge of that fact." Carr correctly argues that a conviction for organized fraud requires more than knowledge; it requires a showing of participation in a scheme with actual intent to defraud. See Pizzo , 945 So.2d at 1207. But Carr makes no argument as to why the willful-blindness instruction would not have been applicable to the lesser-included offense of theft-an offense that includes a knowledge element but no element of fraudulent intent. See id. at 1207 (citing Donovan v. State , 572 So.2d 522, 526 (Fla. 5th DCA 1990) ). We find no abuse of discretion in the court's giving the instruction.

AFFIRMED .

Lewis, Winsor, and M.K. Thomas, JJ., concur.


text:
    Billy J. STONE, Appellant, v. Teresa A. MCMILLIAN, Appellee.
    No. 1D17-5332
    District Court of Appeal of Florida, First District.
    May 2, 2019
    Robert J. Powell of Clark Partington, Pensacola, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

On Teresa McMillian's second attempt to have an injunction for protection against stalking entered against her neighbor, Billy Stone, she succeeded. Stone appeals, arguing that the evidence is insufficient to support an injunction. We agree.

I.

The First Petition

In December 2016, Stone put a threatening letter in McMillian's mailbox, warning her not to "pull another stunt like [she] did today." Stone testified that McMillian honked her horn and intentionally drove her car at him while he walked his dog with his back turned, causing him to jump out of the way, thinking he and his dog were about to be hit. Stone admitted writing the letter, which intimidated McMillian, while he was angry about this incident. McMillian testified that Stone walked around the circular street the two lived on repeatedly throughout the day. Stone had done this since approximately 2009, but it now unnerved McMillian in light of Stone's letter.

McMillian also did not like that Stone walked his dog on a government-owned vacant lot next to her house. So, in March or April 2017, she set up a motion-sensing sprinkler on the border of her property to spray Stone while he was on the vacant lot. Although the sprinkler once succeeded in soaking Stone, he did not stop walking his dog on the empty lot and, in June 2017, McMillian called the police to report that he and his dog were defying a no-trespassing sign on the lot.

At the hearing on McMillian's petition for a stalking injunction in July 2017, the trial court noted several times that the parties were engaged in "tit for tat" behavior, encouraged them to "go [their] separate ways," and declined to grant the injunction.

The Second Petition

Just two months later in September, McMillian filed another petition for injunction for protection against stalking. Her chief complaint was that Stone walked past her house far too often. McMillian would not know this but for the videos recorded from her security camera, which she reviewed daily. McMillian maintained a log, marking how many times per day Stone walked past her house from August until September 2017, a number often in double digits. McMillian felt intimidated by Stone walking past her house because of the letter he wrote in December 2016. McMillian testified that on the morning of August 1, she discovered dog waste in her trash can, which had previously been placed at the curb and was to be emptied shortly. After reviewing her security camera, she fingered Stone and his dog as the culprits. McMillian admitted that she later went outside and yelled at Stone and his wife for this incident as they walked past her house, but insisted that she was very afraid of him. McMillian similarly found Stone to be the guilty party, after reviewing her security camera footage, when she heard a vehicle down the road rev its engine too loud and for too long. Lastly, McMillian complained that on August 15, "Stone stepped on [her] driveway to avoid being hit by a bus that was driving past [her] house," even though he had previously been told to stay away from her property.

Stone testified that he has routinely walked the loop around his home since 2009 and has not in any way changed his routine based on McMillian. He stated that he walks to alleviate anxiety, to talk and visit with neighbors, and to help with the neighborhood watch program he helped develop. Six neighbors testified that Stone is active in the community and routinely walks past their house every day, often stopping to talk. Stone testified that he always picks up after his dog and, if it is trash day, will put it in the nearest can before it gets picked up; he admitted using McMillian's can once, but denied it was an attempt to intimidate her.

The trial court, with the same judge presiding from the first hearing in July, agreed that Stone walked the neighborhood because he cares about crime and for personal reasons, but felt that the sheer number of times signaled that he still had not "let go of" his animosity towards McMillian. The trial court understood that McMillian's trash can was on the curb and about to be emptied, but felt that Stone put his dog's waste in there to harass her. The trial court admitted struggling to find substantial emotional distress, and allowed McMillian to explain that she was still afraid of Stone due to his letter from December 2016, and his continued walking of the neighborhood. Stone argued that the trial court previously found the parties' behavior to be "tit for tat" and cannot now enter an injunction for stalking based on him walking around his own neighborhood. The trial court granted a one-year injunction.

II.

We recently explained the framework for entering an injunction for protection against stalking pursuant to section 784.0485, Florida Statutes :

Stalking occurs when a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person." § 784.048(2), Fla. Stat. (2016). To "harass" means "to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." § 784.048(1)(a), Fla. Stat. A "course of conduct" is "a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose." § 784.048(1)(b), Fla. Stat. In determining whether an incident causes "substantial emotional distress," courts use a "reasonable person" standard rather than a subjective one. McMath v. Biernacki , 776 So.2d 1039, 1040 (Fla. 1st DCA 2001).

Paulson v. Rankart , 251 So.3d 986, 988-89 (Fla. 1st DCA 2018). A trial court's imposition of such an injunction is reviewed for abuse of discretion and must be supported by competent, substantial evidence. See Pickett v. Copeland , 236 So.3d 1142, 1143-44 (Fla. 1st DCA 2018).

III.

A central focus of this injunction is the threatening letter Stone wrote to McMillian in December 2016. But in July 2017, after also hearing of McMillian's sprinkler ambush and report to the police, the trial court described the parties' behavior as "tit for tat" and declined to grant an injunction. Stone's subsequent behavior includes walking past McMillian's house often on his loop around the neighborhood, putting his dog's waste in her trash can once while it sat on the curb, revving his engine one day near her house, and stepping on her driveway to avoid being hit by a bus.

Without need to dissect each fact, we do not find legally sufficient evidence that Stone maliciously engaged in a course of conduct directed at McMillian that would cause a reasonable person substantial emotional distress. Rather, it appears that the parties had an altercation in December 2016 and their relationship turned sour. After the trial court declined to grant an injunction in July 2017, McMillian took every innocuous act of Stone as one of aggression and intimidation, including scrupulously logging each time he walked past her home after daily review of her security camera.

In Paulson , the petitioner obtained a stalking injunction after testifying that her neighbor yelled at her, made complaints to authorities, stared at her, and looked at her utility meters, making her anxious and worried that he would shoot one of her dogs. 251 So.3d at 987-88. We found that "the evidence was insufficient to show that he willfully and maliciously engaged in a course of conduct that would cause her substantial emotional distress." Id. at 990. This case is similar. See also Power v. Boyle , 60 So.3d 496, 498 (Fla. 1st DCA 2011) ("The statute does not allow the trial court to enter injunctions simply 'to keep the peace' between parties who, for whatever reason, are unable to get along and behave civilly towards each other.").

IV.

This neighborly feud, which does include some uncivil or immature conduct, does not include stalking. We therefore REVERSE the final injunction for protection against stalking.

B.L. THOMAS, C.J., and KELSEY and WINOKUR, JJ., concur.

      We affirm as to Stone's other two arguments without further comment.

      Although the injunction is no longer in effect, this appeal is not moot. See Paulson v. Rankart , 251 So.3d 986, 988 n. 1 (Fla. 1st DCA 2018).

      We do not disagree with Stone's argument that he walks around his neighborhood, put dog waste in a trash can, and avoided getting hit by a bus for legitimate purposes under section 784.048.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Michael P. MONROE, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-795
    District Court of Appeal of Florida, Second District.
    Opinion filed May 3, 2019
    Michael P. Monroe, Jr., pro se.
    Ashley Moody, Attorney General, Tallahassee, Donna S. Koch, Assistant Attorney General, Tampa for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

The postconviction court summarily denied Michael P. Monroe, Jr.'s, amended motion for prison and jail credit. We affirm as to the denial of prison credit but reverse for the postconviction court to further review Monroe's request for jail credit and to grant him additional credit, attach copies of the portions of the court records or files that support the denial of his request, or conduct an evidentiary hearing.

Monroe was arrested for a criminal offense in Hillsborough County in April 2016 and detained in jail. At the time, he was subject to two orders of probation for earlier offenses committed in Hillsborough and Polk Counties. In his amended motion for prison and jail credit, Monroe asserted that while in the Hillsborough County jail, he had been served with a "warrantless arrest affidavit" or "detainer" from Polk County. He further asserted that in September 2016, he had been sentenced to fifteen months in state prison on the Hillsborough County cases. He asserted that while he was in prison, the Polk County authorities had issued another "warrantless arrest affidavit."

Upon his release from prison, Monroe was sent to the Polk County jail, and, in June 2017, he admitted the Polk County violation of probation (VOP) in exchange for a three-year prison sentence. The snap-out "memo of sentence" reflected that he was to be given "credit for t[ime] s[erved] in Hillsborough County for arrest in this VOP (if any)," but the memo did not specify the number of days of credit. On October 17, 2017, however, the Department of Corrections (DOC), in response to an inquiry by Monroe, indicated that DOC had credited him with 340 days of jail credit. Although the DOC's response did not indicate the range or ranges of dates encompassed within that 340-day figure, Monroe's amended motion identified three separate periods during which he assertedly had been in jail, and those periods add up to 340 days.

Those periods do not include time that Monroe spent in prison on the Hillsborough County cases or time that he spent in the Polk County jail between his release from prison on the Hillsborough County cases and his sentence to prison on the Polk County VOP. In his amended motion, Monroe requested an additional 254 days of prison and jail credit for that entire period, which ran from September 27, 2016, to June 7, 2017. The postconviction court denied the motion, ruling that the case law on which Monroe relied had been superseded and that he was not entitled to additional credit.

The postconviction court correctly concluded that Monroe was not entitled to credit against his Polk County sentence for the time that he had spent in prison on the Hillsborough County cases because, according to Monroe's own assertion, Polk County had issued only a detainer, not an arrest warrant. See Norman v. State, 900 So.2d 702, 703 (Fla. 2d DCA 2005) ("When a detainer has been issued against a prisoner, generally the prisoner will not be entitled to prison credit in the case with the detainer when he is sentenced in that case following the completion of the sentence he is currently serving. See Gethers v. State, 838 So.2d 504, 508 (Fla. 2003). On the other hand, if an arrest warrant is transmitted and a prisoner is arrested under the authority of that warrant, the prisoner may be entitled to credit because he is being held on both charges. [Id. ] at 507."). We therefore affirm the postconviction court's denial of Monroe's request for prison credit.

It does not appear, however, that the postconviction court accounted for the portion of the requested 254 days that Monroe had spent in the Polk County jail after his release from prison on the Hillsborough County cases but before he was sentenced to prison on the Polk County VOP. Monroe is entitled to credit for that period, assuming that it is not already incorporated into the 340 days of credit that he has been granted. See § 921.161(1), Fla. Stat. (2016) ("[T]he court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence."). Because the postconviction court failed to attach copies of portions of court records or files to refute this component of Monroe's claim, we cannot determine what, if any, jail credit he may be entitled to. We therefore reverse the postconviction court's denial of Monroe's claim as it pertains to jail credit. On remand, the court may grant the additional credit, attach portions of the record that conclusively refute his clam, or conduct an evidentiary hearing to resolve the issue. The trial court may also consider requiring the State to respond to the motion. See Fla. R. Crim. P. 3.801(e) (incorporating rule 3.850(f) ).

Affirmed in part; reversed in part; remanded.

LaROSE, C.J., and BLACK, J., Concur.

      As a request for prison credit, the amended motion is governed by Florida Rule of Criminal Procedure 3.800(a) ; as a request for jail credit, it is governed by rule 3.801. See Bolduc v. State, 251 So.3d 314, 315 (Fla. 2d DCA 2018).

      Based on Monroe's assertion in his original motion for prison and jail credit, which the postconviction court dismissed with leave to amend, he appears to have been transported from prison to the Polk County jail on May 5, 2017.