POSITIVE RULING ON GENERATOR RULES MAY NOT PROTECT OWNERS IN THE SHORT TERM

By: Michael Piccolo and John Ruffier

Notwithstanding what we consider a well-reasoned and proper ruling by an Administrative Law Judge against Governor Scott’s emergency rule on generators and fuel, cautious senior living facility owners may still want to submit their work plans to AHCA.

Under Florida law, emergency rules remain in effect until the period for filing an appeal expires: thirty (30) days after the rendition of the Department of Administrative Hearings’ (DOAH’s) Final Order or subsequent appellate proceedings have ended.

 Emergency Rules 56-AER17-1 & 58AER17-1 were issued on Saturday, September 16, 2017 (DOAH Final Order Pgs. 16-17), and the Variance Rules took effect on October 12, 2017 (DOAH Final Order Pg. 35) and took effect upon filing with the Department of State on September 18, 2017. An emergency rule becomes effective immediately upon filing with the Department of State if the adopting agency finds that such effective date is necessary because of immediate danger to public, health, safety, or welfare. 120.54(4)(d), Fla. Stat. (2017). Thus, the Emergency Rules and Variance Rules were effective at the time of legal challenge as the filing agencies declared an immediate danger to the public.

Notwithstanding the administrative law judge’s finding that there was no such emergency and ruling what were effective rules invalid, because they were issued under the auspices of an immediate danger to the public, the effectives rules only become void once the time for filing an appeal expires. 120.56(3)(b), Fla. Stat. (2017). If an appeal is filed with a District Court of Appeal (as Governor Scott has suggested he might do), then the effective rule becomes void after the appellate proceedings have ended. Abbott Labs v. Mylan Pharms., Inc., 15 So. 3d 642, 653 (Fla. 1st DCA 2009). The Governor has thirty (30) days from the rendition of DOAH’s Final Order (which was issued on October 27, 2017) to file an appeal with the District Court of Appeal.

 Therefore, the emergency rules technically remain in effect until the period for filing an appeal expires or subsequent appellate proceedings have ended.  Of course, if the appellate courts affirm the administrative law judge’s ruling (as we’d expect them to do), any fines imposed would likely be moot, but that is a risk some owners may not with to take.  Further, the Florida Legislature is likely to pass a law addressing this issue, so time spent figuring out how to provide cooled space for residents in an emergency like a hurricane may end up being necessary in any event.

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