FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-1713

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DEPARTMENT OF HEALTH and

THE PUBLIC HEALTH TRUST OF 

MIAMI-DADE COUNTY, FLORIDA,

d/b/a JACKSON SOUTH 

COMMUNITY HOSPITAL,

Appellants,

v.

SHANDS JACKSONVILLE MEDICAL 

CENTER, INC., d/b/a UF HEALTH 

JACKSONVILLE, JFK MEDICAL 

CENTER LIMITED PARTNERSHIP,

d/b/a JFK MEDICAL CENTER; 

ORANGE PARK MEDICAL CENTER,

INC., d/b/a ORANGE PARK 

MEDICAL CENTER; FLORIDA 

HEALTH SCIENCES CENTER, INC.,

d/b/a TAMPA GENERAL HOSPITAL;

LEE MEMORIAL HEALTH SYSTEM,

d/b/a LEE MEMORIAL HOSPITAL;

BAYFRONT HMA MEDICAL 

CENTER, LLC, d/b/a BAYFRONT 

HEALTH-ST. PETERSBURG, and

ST. JOSEPH’S HOSPITAL, INC.,

d/b/a ST. JOSEPH’S HOSPITAL,

Appellees.
2

_____________________________

No. 1D17-1717

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JFK MEDICAL CENTER LIMITED 

PARTNERSHIP d/b/a JFK MEDICAL 

CENTER; ORANGE PARK MEDICAL

CENTER, INC., d/b/a ORANGE 

PARK MEDICAL CENTER, and THE 

PUBLIC HEALTH TRUST OF MIAMIDADE COUNTY, FLORIDA, d/b/a

JACKSON SOUTH COMMUNITY 

HOSPITAL,

Appellants,

v.

SHANDS JACKSONVILLE MEDICAL 

CENTER, INC., d/b/a UF HEALTH 

JACKSONVILLE, DEPARTMENT OF 

HEALTH, FLORIDA HEALTH 

SCIENCES CENTER, INC., d/b/a

TAMPA GENERAL HOSPITAL, LEE 

MEMORIAL HEALTH SYSTEM d/b/a

LEE MEMORIAL HOSPITAL,

BAYFRONT HMA MEDICAL 

CENTER, LLC, d/b/a BAYFRONT 

HEALTH-ST PETERSBURG, and ST.

JOSEPH’S HOSPITAL, INC., d/b/a

ST. JOSEPH’S HOSPITAL,

Appellees.

___________________________

On appeal from the Division of Administrative Hearings.

Garnett W. Chisenhall, Administrative Law Judge.

November 13, 2018
3

PER CURIAM.

These two appeals1 seek review of an administrative order

that found proposed rules of the Department of Health (“the 

Department”) for allocating the minimum number of trauma 

centers throughout the state to be an invalid exercise of delegated 

legislative authority. This case ultimately revolves around the 

Department’s interpretation of the word “need,” a term undefined 

by the applicable statutes.2 Under the prior rules, the Department 

interpreted the number of trauma centers “needed” as a maximum. 

In the proposed rules, the Department sought to reflect its new 

interpretation that the number “needed” was a minimum, rather 

than a maximum. The Department asserts the “sub-cap” it created 

by promulgating maximums was not within its delegated statutory 

authority. Because the term “need” is ambiguous as to whether it 

refers to a maximum or minimum, and the Department’s 

interpretation is given deference when it is within the range of 

reasonable interpretations, we agree and reverse.

BACKGROUND

In 1985, the Legislature established a statewide trauma 

system. The law governing the administration of the trauma 

system is set forth in Part II of Chapter 395, Florida Statutes. In 

order to provide timely access and uniformity in trauma care, the 

state was divided into nineteen Trauma Service Areas (“TSAs”), 

each of which should provide at least one Level I or II trauma 

center, §§ 395.402(4)(a) & (b), Fla. Stat. (2016). However, the 

Legislature determined there should be no more than a total of 44 

trauma centers within the State. § 395.402(4)(c), Fla. Stat. (2016).

 1 The appeals at issue were consolidated for travel and are 

now consolidated for disposition.

2 The Legislature substantially amended the applicable 

statutes in this case, in particular sections 395.402 and 395.4025, 

after oral argument. The effect of this amendment is discussed 

below. Unless otherwise indicated, the statutory citations listed 

here refer to the 2016 version of these statutes.
4

Beyond these statutory guidelines, the primary responsibility 

for planning, establishing, and implementing the trauma system

was delegated to the Department. § 395.40(3), Fla. Stat. To ensure 

an integrated trauma system across the state, the Department 

conducted an annual assessment to determine how many trauma 

centers were needed. § 395.402(2)(b), Fla. Stat. (2016). Based on 

the results of this assessment, the Department “allocate[d], by 

rule, the number of trauma centers needed for each [TSA].” 

§ 395.402(4)(b), Fla. Stat. (2016).

In 2014, the Department promulgated rules (the “Old Rules”)

implementing a scoring system to determine how many trauma 

centers were needed per TSA. See Fla. Admin. Code R. 64J-2.010. 

Based on the resulting scores, the Department assigned a 

maximum number of trauma centers for each TSA.

After implementation of this criteria, the Department found 

that with each new trauma center, the associated TSA’s assessed

need would be reduced for the following year. Concerned that this 

could potentially lead to TSAs with a maximum “need” of zero, the 

Department sought to initiate rulemaking to revise the rules to 

provide that the scores should be considered a minimum rather 

than a maximum.

On September 1, 2016, the Department proposed the series of 

amendments to rules 64J-2.010, 64J-2.012, 64J-2.013, and 64J2.016 (the “Proposed Rules”). The Proposed Rules utilized the same 

methodology for assessing the numerical need for trauma centers 

in each TSA but resulted in the approval of a minimum of 25 

trauma centers. The rules also created a “tie-breaker” system in 

the event the number of trauma center applicants or provisional 

trauma centers would cause the state to exceed the statutory cap.

Appellees3 filed rule challenge petitions asserting, among 

other things, that the Proposed Rules exceeded the Department’s 

 3 The following entities challenged the validity of the Proposed 

Rules in a consolidated proceeding: Shands Jacksonville Medical 

Center, Inc. d/b/a UF Health Jacksonville (“Shands”), Florida 

Health Sciences Center, Inc. d/b/a Tampa General Hospital 

(“Tampa General”), Lee Memorial Health System d/b/a Lee 

Memorial Hospital (“Lee Memorial”), Bayfront HMA Medical 
5

rulemaking authority; enlarged, modified, or contravened the laws 

being implemented; or vested the Department with unbridled 

discretion.

At the final hearing on this matter, the Department’s 

representative was asked a number of hypothetical questions 

regarding the trauma centers approval process under the Proposed 

Rules. In a situation where there were 43 approved trauma 

centers in the state but one TSA did not have a Level I or II trauma 

center, the Department stated it would hold the 44th spot open for 

the TSA without a trauma center. It further represented the same 

outcome would occur if there were 43 approved centers and one 

TSA had not reached its minimum under the Proposed Rules.

The Administrative Law Judge (“ALJ”) held that while the 

Department did not exceed its grant of rulemaking authority and 

the proposed rules were not arbitrary or capricious, the rules 

contravened the laws being implemented and vested unbridled 

discretion in the Department.

MOOTNESS

After oral argument in this case, the Legislature substantially 

amended sections 395.402 and 395.4025. Ch. 2018-66, Laws of 

Florida. As stated above, under prior statutes the Department was 

tasked with “allocat[ing], by rule, the number of trauma centers 

needed for each trauma service area.” § 395.402(4)(b), Fla. Stat. 

 

Center, LLC d/b/a Bayfront Health – St. Petersburg (“Bayfront”), 

St. Joseph’s Hospital Inc., d/b/a St. Joseph’s Hospital (“St. 

Josephs,”). Each of these parties operates a trauma center.

The following entities intervened in this proceeding on behalf 

of the Department: JFK Medical Center Limited Partnership, 

d/b/a JFK Medical Center (“JFK”), The Public Health Trust of 

Miami-Dade County, Florida d/b/a Jackson South Community 

Hospital (“Public Health Trust”), Orange Park Medical Center, 

Inc. d/b/a Orange Park Medical Center (“Orange Park”). JFK and 

Public Health Trust submitted letters of intent to apply to operate 

as a trauma center; Orange Park already operates a provisional 

trauma center.
6

(2016). See also § 395.4025(1), Fla. Stat. (2016) (requiring that “the 

department shall establish the approximate number of trauma 

centers needed to ensure reasonable access to high-quality trauma 

services”). However, under these statutes as revised in 2018, the 

Legislature itself now provides the maximum number of trauma 

centers for each service area. § 395.402(1)(c), Fla. Stat. (2018). No 

longer does the Department have the authority to select or 

establish the appropriate number of trauma centers. § 395.4025(1), 

Fla. Stat. (2018). The new statutes prohibit the Department from 

approving trauma centers—or even accepting letters of intent—for 

service areas that have already met the new statutory maximums, 

absent certain extenuating circumstances. § 395.4025(3) & (4), Fla. 

Stat. (2018). In other words, the entire statutory basis for the 

Proposed Rules at issue in this case has been repealed.

We find that the rule challenge here is moot. See Montgomery 

v. Dep’t of Health & Rehab. Servs., 468 So. 2d 1014 (Fla. 1st DCA 

1985). “A moot case generally will be dismissed.” Godwin v. State, 

593 So. 2d 211, 212 (Fla. 1992). However, a moot appeal will not 

be dismissed if any of three exceptions apply: (1) the issues are of 

great public importance; (2) the issues are likely to recur; and (3) 

collateral legal consequences flow from the issues to be resolved 

that may affect the rights of a party. Schweickert v. Citrus County 

Florida Bd., 193 So. 3d 1075, 1078 (Fla. 5th DCA 2016). At the 

least, collateral consequences of this case that may affect the rights 

of a party exist, regardless of the mootness of the Proposed Rule, 

in particular, the challengers’ right to attorney’s fees under section 

120.595(2), Florida Statutes. This possible right to attorney’s fees 

is sufficient for this court to decide this case in spite of it mootness. 

See Soud v. Kendale, Inc., 788 So. 2d 1051, 1053 (Fla. 1st DCA 

2001) (rendering an opinion on the merits in a moot appeal because 

the appellee sought attorney’s fees in the trial court after 

dismissal).4 For this reason, we proceed to the merits of this 

appeal.

 4 We find that Lund v. Dep’t of Health, 708 So. 2d 645 (Fla. 1st 

DCA 1998), does not require a different conclusion. In Lund we 

dismissed a moot appeal in a license disciplinary action, finding 

that the possibility of attorney’s fees pursuant to section 

120.595(5) does not constitute a collateral legal consequence. Id. at 

646. However, payment of attorney’s fees under subsection (5) of 
7

ANALYSIS

We review the ALJ’s conclusions of law and determinations of 

statutory interpretation de novo. See J.S. v. C.M., 135 So. 3d 312, 

315 (Fla. 1st DCA 2012); Abbott Labs. v. Mylan Pharms., Inc., 15 

So. 3d 642, 654 (Fla. 1st DCA 2009). To the extent that an issue 

depends on the ALJ’s finding of fact, we only review whether the 

finding is supported by competent, substantial evidence. Abbott 

Labs., 15 So. 3d at 654.

The ALJ determined that the Proposed Rules were an invalid 

exercise of delegated legislative authority because (1) it would 

render superfluous the requirement that trauma centers be 

located in a TSA with a need under the prior version of section 

395.4025(5) where all TSAs would always have a need; (2) the rule 

minimums would implicitly supersede the statutory minimum 

provided by the prior version of section 395.402(4); and (3) it vests

the Department with unbridled discretion to permit it to reserve 

trauma center slots for TSAs that have not satisfied their rule 

minimum. See § 120.52(8)(c) & (d), Fla. Stat.

 

that statute is conditional, permitted only when the appellate 

court determines that the appeal was “frivolous, meritless, or an 

abuse of the appellate process, or that the agency action which 

precipitated the appeal was a gross abuse of the agency’s 

discretion.” Fees here are sought under section 120.595(2), which 

requires that “a judgment or order shall be rendered against the 

agency for reasonable costs and reasonable attorney’s fees,” “[i]f 

the appellate court or administrative law judge declares a 

proposed rule or portion of a proposed rule invalid,” unless “the 

agency demonstrates that its actions were substantially justified 

or special circumstances exist which would make the award 

unjust.” Stated differently, fees under subsection (2) are required 

unless an exception applies, whereas fees under subsection (5) are 

wholly conditional. We find this distinction to be relevant here, so 

that the request for fees under section 120.595(2) allows us to 

decide this moot appeal.
8

First, the prior version of section 395.4025(5) provided that 

provisional trauma centers “shall be located in a trauma service 

area that has a need for such a trauma center.” (emphasis added). 

The ALJ held that because the Department’s allocation of 

minimum need would mean all TSAs would “always” have a need, 

the Proposed Rules render the prior version of section 395.4025(5) 

superfluous. The ALJ’s holding is not accurate under the statute 

or the Proposed Rules.

There is nothing in the prior version of section 395.4025(5)

that bars multiple TSAs from having needs at the same time. So 

long as the state is under the statutory cap, multiple TSAs may 

find an additional trauma center to be desirable or useful despite 

the fact that it has already met its minimum requirements by 

statute or rule. See Need, Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/need (last visited 

Aug. 9, 2018) (defining “need” as “a lack of something requisite, 

desirable, or useful”).

Further, TSAs would not “always” have a need. Once the 

former statewide cap of 44 trauma centers was met, no TSA would 

have a need. See § 395.402(4)(c), Fla. Stat. (2016). If the state were 

nearing the cap, priority would have been given to any TSA that 

had not met its minimum provided by the Proposed Rules. The 

ability to reserve slots is implied in the Department’s use of the 

word “minimum” in the Proposed Rules. Accordingly, the 

Department would deny any trauma center application in a TSA 

that had already met its prescribed rule minimum when doing so 

would foreclose the opportunity for another TSA to meet its rule 

minimum.

This is all within its authority, as the Department was tasked 

with establishing “the approximate number of trauma centers 

needed to ensure reasonable access to high-quality trauma 

services.” See § 395.4025(1), Fla. Stat. (2016) (emphasis added). 

The Legislature’s use of the words “approximate” and “reasonable” 

makes unlikely that it intended “need” to refer to a defined and 

limited maximum. The former section 395.4025(5) was not 

rendered superfluous or contravened by the Proposed Rules.

Second, the prior version of section 395.402(4) provided both 

a floor for the individual TSAs (one) and a ceiling for the state (44). 
9

§ 395.402(4)(b) & (c), Fla. Stat. (2016). The ALJ held that the 

Proposed Rules implicitly superseded the prior version of section 

395.402(4), which already had established a minimum number of 

trauma centers per TSA.

The statutory floor in the prior version of section 395.402(4) 

provided a universal minimum without consideration of a TSA’s 

actual or approximate need. Between the floor and the ceiling, the 

Department was tasked with allocating (distributing or 

designating) the remaining 25 available trauma centers slots

amongst the TSAs based upon their approximate need. 

§§ 395.402(4)(b), 395.4025(1), Fla. Stat. (2016); see Allocate, 

Merriam-Webster Online Dictionary, https://www.merriamwebster.com/dictionary/allocate (last viewed Aug. 9, 2018) 

(defining “allocate” as either (1) “to apportion for a specific purpose 

or to particular persons or things : distribute” or (2) “to set apart 

or earmark : designate”).

It is reasonable that the Department would provide each 

TSA’s minimum need to support the purpose of the statute, which

is access. The Proposed Rules leave open the opportunity to 

distribute all available trauma center slots, if needed. The Old 

Rules actually rendered the prior version of section 395.402(4) 

superfluous in providing for maximum of 27 trauma centers for the 

state, prohibiting it from ever reaching the 44 total trauma centers

allowed.

Third, the ALJ held that the Proposed Rules vested the 

Department with unbridled discretion insofar as it could reserve 

trauma center slots under the statutory cap for TSAs that had one 

trauma center—satisfying the statutory minimum under the prior 

version of section 395.402(4)(b)—but that had not yet met their 

rule minimum. The ALJ held: “In sum, the Proposed Rules are 

invalid because they confer discretion on the Department that is 

not articulated in the statutes the Proposed Rules would 

implement.”

As discussed above, the Department was tasked with 

allocating the approximate number of trauma center slots to the 

TSAs to ensure reasonable access to trauma care. It was rational

for the Department to reserve slots for TSAs without sufficient 

trauma centers to satisfy their need assessment under the 
10

Proposed Rules to ensure reasonable access. Because the statute 

laid out the framework with little guidance regarding 

implementation, the Legislature granted the Department wide 

berth to make the pure policy decisions that would support the 

interpretation of need as a maximum or minimum. Accordingly, 

we find the Proposed Rules do not vest the Department with 

unbridled discretion.

CONCLUSION

The final order is reversed and the cause remanded in 

accordance with this opinion.

REVERSED.

MAKAR, WINOKUR, and M.K. THOMAS, JJ., concur.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

William Dean Hall, III, Marc W. Dunbar, and Daniel R. Russell of 

Jones Walker LLP, Tallahassee; Jason Gonzalez and Amber 

Stoner of Shutts & Bowen LLP, Tallahassee; and Jay Patrick 

Reynolds, Chief Legal Counsel, and Michael J. Williams, Assistant 

General Counsel, Florida Department of Health, Tallahassee, for 

Department of Health.

Thomas F. Panza, Jennifer K. Graner, Brian S. Vidas, and Paul C. 

Buckley of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for

The Public Health Trust of Miami-Dade County, Florida.

Stephen A. Ecenia, J. Stephen Menton, and Gabriel F. V. Warren 

of Rutledge Ecenia, P.A., Tallahassee, for JFK Medical Center and 

Orange Park Medical Center.

Seann M. Frazier and Marc Ito of Parker, Hudson, Rainer & 
11

Dobbs, LLP, Tallahassee, for UF Health Jacksonville, Lee 

Memorial Health System, and Tampa General Hospital.

Karen A. Putnal and Jon C. Moyle of Moyle Law Firm, 

Tallahassee, for St. Joseph’s Hospital.

Geoffrey D. Smith, Timothy B. Elliott and Corinne Porcher of 

Smith & Associates, Tallahassee, for Bayfront Medical Center.