Third District Court of Appeal

State of Florida 

Opinion filed October 6, 2021.

Not final until disposition of timely filed motion for rehearing.

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No. 3D21-1748

Lower Tribunal No. 64DER21-12

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School Board of Miami-Dade County, Florida,

Petitioner,

vs.

Florida Department of Health, et al.,

Respondents.

A Case of Original Jurisdiction – Review of Emergency Rule.

Weiss Serota Helfman Cole & Bierman, P.L., and Jamie A. Cole (Fort 

Lauderdale), Edward G. Guedes, and Richard B. Rosengarten, for petitioner.

Shutts & Bowen LLP, and Daniel E. Nordby (Tallahassee), Benjamin 

J. Gibson (Tallahassee), Julissa Rodriguez, and Eric M. Yesner, for 

respondents.

Before MILLER, LOBREE, and BOKOR, JJ. 

MILLER, J.
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UPON MOTION TO DISMISS

In a dispute underscoring inherent tensions between state control and 

local self-governance, the School Board of Miami-Dade County, Florida, filed 

a petition for review of Emergency Rule 64DER21-12, adopted by the Florida 

Department of Health and then Florida Surgeon General, Dr. Scott A. 

Rivkees. The rule was promulgated to address the emergency created by 

the “increase in COVID-19 infections, largely due to the spread of the 

COVID-19 delta variant, coinc[iding] with the imminent start of the school 

year.” 47 Fla. Admin. Reg. 3650 (Aug. 9, 2021). The School Board 

challenged the portion of the rule that provided “[s]tudents may wear masks 

or facial coverings as a mitigation measure,” but schools must “allow for a 

parent or legal guardian of the student to opt-out the student from wearing a 

face covering or mask.” Id. at 3651. The rule has since been repealed, and 

the Department, along with the current Florida Surgeon General, Dr. Joseph 

A. Ladapo, adopted new Emergency Rule 64DER21-15. 47 Fla. Admin. 

Reg. 4427 (Sept. 23, 2021).

1 The Department seeks dismissal, contending 

the instant petition is now moot. The School Board opposes dismissal, 

contending collateral legal consequences warrant a retention of jurisdiction 

1 The newly adopted emergency rule is the subject of a separate challenge 

before this court.
3

and a decision on the merits. For the reasons discussed below, we dismiss 

the petition.

BACKGROUND

On August 6, 2021, the Department promulgated Emergency Rule 

64DER21-12, entitled “Protocols for Controlling COVID-19 in School 

Settings.” The rule contained several advisory resolutions, designed to 

provide “emergency guidance to school districts concerning the governance 

of COVID-19 protocols in schools.” 47 Fla. Admin. Reg. at 3650. Under the 

rule, although students were permitted to “wear masks or facial coverings as 

a mitigation measure,” schools were mandated to “allow for a parent or legal 

guardian of the student to opt-out the student from wearing a face covering 

or mask.” Id. at 3651. 

The identified emergency justifying the implementation of the rule was

the “increase in COVID-19 infections, largely due to the spread of the 

COVID-19 delta variant, coincid[ing] with the imminent start of the school 

year.” Id. at 3650. In this regard, the rule explained, it was “imperative that 

state health and education authorities provide emergency guidance to school 

districts concerning the governance of COVID-19 protocols in schools.” Id.

Citing “its authority to adopt rules governing the control of preventable 

communicable diseases in public schools,” the Department articulated the 
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goal of “[encouraging] a safe and effective in-person learning environment 

for Florida’s schoolchildren during the upcoming school year; [preventing]

the unnecessary removal of students from school; and [safeguarding] the 

rights of parents and their children.” Id. The rule reflected the opt-out 

provision was necessary because “[u]nder Florida law, parents have a 

fundamental right to direct the upbringing, education, health care, and mental 

health of their minor children and have the right to make health care 

decisions for their minor children.” Id. Further,

[B]ecause students benefit from in-person learning—it is 

necessary to immediately promulgate a rule regarding COVID19 safety protocols that protects parents’ rights and to allow for 

in-person education for their children. Removing children from 

school poses a threat to developmental upbringing and should 

not occur absent a heightened showing of illness or risk of illness 

to other students.

Id. Finally, the Department posited the procedure was fair under the 

circumstances because, 

[I]n light of the recent rise in COVID-19 cases in Florida and the 

urgent need to provide COVID-19 guidance to school districts 

before the upcoming school year commences. Given that a

majority of schools will resume in-person learning for the 2021-

2022 school year within the next four weeks, there is insufficient 

time to adopt the rule through non-emergency process.

Id. 

After the School Board filed the instant petition, the rule was repealed. 

The Department and Dr. Ladapo then promulgated Emergency Rule 
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64DER21-12. Like its predecessor, the newly adopted rule addresses the 

“Control of COVID-19 in School Settings.” Unlike the former rule, however, 

Emergency Rule 64DER21-12 expands the rationales for implementation 

and establishes different safety protocols. 

Despite the marked dissimilarities between the two rules, the School 

Board argues its challenge remains viable because collateral legal 

consequences, namely attorney’s fees, flow from the issue to be resolved,

affecting its rights. See Dep’t of Health v. Shands Jacksonville Med. Ctr., 

Inc., 259 So. 3d 247, 251 (Fla. 1st DCA 2018). We are not so persuaded.

ANALYSIS

“Ordinarily, when a challenged [rule is] repealed, the question of its 

validity becomes moot.” Curless v. County of Clay, 395 So. 2d 255, 258 (Fla. 

1st DCA 1981); see also 3 Fla. Jur. 2d App. Rev. § 286 (2021). That is 

because, under these circumstances, “a judicial determination can have no 

actual effect.” Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992). An

exception to this general rule arises, however, where “collateral legal 

consequences that affect the rights of a party flow from the issue to be 

determined.” Id. This exception is narrowly applied to those cases in which 

a party stands to lose property, advantages, or rights as a collateral result of 
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the dismissal. Lund v. Dep’t of Health, 708 So. 2d 645, 646 (Fla. 1st DCA 

1998). 

Our sister courts have endorsed the notion that fee entitlement may 

constitute such a collateral legal consequence. See Mazer v. Orange 

County, 811 So. 2d 857, 859 (Fla. 5th DCA 2002); Soud v. Kendale, Inc., 

788 So. 2d 1051, 1053 (Fla. 1st DCA 2001). Consequently, we turn our 

analysis to whether, in the instant case, the School Board would have been 

entitled to recover fees had it prevailed in its challenge. 

The School Board contends section 120.595(3), Florida Statutes

(2021), authorizes a recovery of fees in these proceedings. As with any 

statutory analysis, we begin “with ‘the language of the statute,’” and, here, 

because that “language provides a clear answer, it ends there as well.” 

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) (quoting Est. of 

Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992)). 

Section 120.595, Florida Statutes, entitled “[a]ttorney’s fees,” contains 

several provisions allowing for the recovery of fees in successful challenges 

to agency action. As expressly provided by the legislature, the applicability 

of subsection (3) of the statute is limited to “challenges to existing agency 

rules pursuant to section 120.56(3) and (5).” § 120.595(3), Fla. Stat. In such

successful challenges, the appellate court or administrative law judge must
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award reasonable costs and attorney’s fees against the agency, “unless the 

agency demonstrates that its actions were substantially justified or special 

circumstances exist which would make the award unjust.” Id. 

Section 120.56(3) and (5), in turn, provide procedures for one 

“substantially affected by a rule or a proposed rule” to “seek an administrative 

determination of the invalidity of the rule.” § 120.56(1)(a), Fla. Stat. These 

avenues differ from the administrative procedures codified in section 120.68, 

Florida Statutes. Under section 120.68, the district courts review emergency 

rules “without an intervening administrative challenge to exhaust 

administrative remedies.” Fla. Democratic Party v. Hood, 884 So. 2d 1148,

1151 (Fla. 1st DCA 2004).

Here, the School Board did not challenge the rule through the 

administrative procedures codified in section 120.56, Florida Statutes. 

Instead, it sought direct judicial review pursuant to section 120.68, Florida 

Statutes. As attorney’s fees are in derogation of the common law, they “may 

only be awarded by a court pursuant to an entitling statute or an agreement 

of the parties,” and an entitlement statute must be strictly construed. Dade 

County v. Pena, 664 So. 2d 959, 960 (Fla. 1995); see Major League Baseball 

v. Morsani, 790 So. 2d 1071, 1077–78 (Fla. 2001) (“[A] statute enacted in 

derogation of the common law must be strictly construed and . . . even where 
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the Legislature acts in a particular area, the common law remains in effect in 

that area unless the statute specifically says otherwise.”); see also Gershuny

v. Martin McFall Messenger Anesthesia Prof’l Ass’n, 539 So. 2d 1131, 1132 

(Fla. 1989) (“[T]he mention of one thing in a statute implies the exclusion of 

those things not expressly mentioned.”). Adhering to the plain statutory

language, we conclude section 120.595(3) provides no basis for fee 

entitlement in this proceeding, thus, the repeal of Emergency Rule

64DER21-12 renders the instant petition moot. 

Petition dismissed.