Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT BAYFRONT HMA MEDICAL ) CENTER, LLC d/b/a BAYFRONT ) HEALTH - ST. PETERSBURG, ) ) Appellant, ) ) v. ) Case No. 2D18-3781 ) DEPARTMENT OF HEALTH ) and GALENCARE, INC. ) d/b/a NORTHSIDE HOSPITAL, ) ) Appellees. ) ) Opinion filed January 31, 2020. Appeal from the Department of Health. Corinne T. Porcher, Geoffrey D. Smith, and Timothy B. Elliott of Smith & Associates, Tallahassee, for Appellant. Michael Jovane Williams, Appellate Counsel, Tallahassee, for Appellee Department of Health. Stephen A. Ecenia, Gabriel F. Warren, and J. Stephen Menton, of Rutledge Ecenia, P.A., Tallahassee, for Appellee Galencare, Inc. d/b/a Northside Hospital. ATKINSON, Judge. Bayfront HMA Medical Center, LLC d/b/a Bayfront Health - St. Petersburg (Bayfront) appeals the entry of a final order by the Florida Department of Health (Department), approving the application of Galencare, Inc. d/b/a Northside Hospital (Northside) to become a Level II trauma center. We agree with the parties that this was erroneous in light of the intervening amendments to chapter 395, Florida Statutes (2017), and therefore reverse. Northside applied to become a provisional Level II trauma center on March 31, 2017. After the Department denied the application, Northside sought administrative review. Bayfront intervened, opposing Northside's application. After holding a multiday hearing, the administrative law judge (ALJ) entered a recommended order on December 20, 2017, approving Northside's application. The legislature amended the operative provisions of the trauma statutes—sections 395.402(1) and 395.4025(3)(d), Florida Statutes (2018)—effective March 21, 2018. Shortly thereafter, the parties entered into a settlement agreement, agreeing that Northside would immediately file a motion for an abeyance, which would continue until either (1) the new law was not challenged on constitutional grounds within six months; (2) the new law was challenged on constitutional grounds, the new law was upheld, and all appeals were exhausted; or (3) the new law was "fully implemented" and counsel for Northside was satisfied the case was moot. Upon the occurrence of any of these events, Northside agreed to dismiss the administrative case with prejudice prior to entry of a final order by the Department. However, on May 10, 2018, an action was filed in Tallahassee seeking declaratory and injunctive relief on the basis that the new law -2- was unconstitutional. See Variety Children's Hosp. v. Dep't of Health, No. 2018-CA- 1072 (Fla. 2nd Cir. Ct. May 10, 2018).1 Northside filed an unopposed motion to hold the proceeding in abeyance for ninety days, although it did not mention the parties' settlement agreement. On August 24, 2018, the Department issued a final order on Northside's application based upon the old trauma statutes. The Department denied Bayfront's exceptions to the recommended order and approved Northside's application. Bayfront moved to vacate the final order. Northside filed a response in opposition, claiming that the final order correctly determined that Northside met the Department's standards to operate a provisional Level II trauma center and that those standards were not changed by the new trauma law. Conceding that the order did not authorize Northside to operate because it was unable to do so under the new statutes, Northside nonetheless stated in opposition to the motion to vacate that it "reserve[d] all rights in the event of hypothetical developments which could impact [trauma service area] 9, including the [amendments to the] Trauma Law being invalidated or changed, or the closing of a trauma center that is currently operating in [trauma service area] 9." Without a ruling on its motion to vacate, Bayfront filed the instant appeal. On appeal, Northside asserts that while the order should be vacated because the administrative case was rendered moot by the new trauma statutes its administrative petition should remain pending until the outcome of the appeal of the 1The circuit court upheld the statute as a constitutional general law, and Variety filed an appeal. See Variety Children's Hosp. v. Dep't of Health, No. 1D19-1842 (Fla. 1st DCA filed May 17, 2019). -3- constitutional challenge. Bayfront seeks remand for entry of a final order denying Northside's application. Where there is a change in a statute during the pendency of a licensing application, "the law as changed, rather than as it existed at the time the application was filed, determines whether the license should be granted." Cantrall v. Dep't of Highway Safety & Motor Vehicles, 828 So. 2d 1062, 1063 (Fla. 2d DCA 2002) (quoting Lavernia v. Dep't of Prof'l Regulation, Bd. of Med., 616 So. 2d 53, 53–54 (Fla. 1st DCA 1993)); accord E.J. v. Dep't of Children & Families, 219 So. 3d 946, 947 (Fla. 3d DCA 2017). Accordingly, the Department was required to apply the versions of sections 395.402 and 395.4025 that became effective on March 21, 2018. It erred by applying the prior version of these statutes and by entering a final order approving Northside's application. Contrary to the contention of Northside and the Department, the new trauma statutes did not render Northside's administrative case moot. "A case becomes moot . . . where . . . an intervening event makes it impossible for the court to grant a party any effectual relief." Montgomery v. Dep't of Health & Rehab. Servs., 468 So. 2d 1014, 1016 (Fla. 1st DCA 1985); accord WFTV, Inc. v. Robbins, 625 So. 2d 941, 943 (Fla. 4th DCA 1993) ("Mootness occurs when the issues presented are no longer live or when the parties lack a legally cognizable interest in the outcome."). The amendment to the trauma statutes is not an intervening event making it impossible for the Department to grant a party any effectual relief. See Montgomery, 468 So. 2d at 1016. The law simply changed, requiring the Department to grant the relief that Bayfront seeks—denial of Northside's administrative petition. See Microdecisions, Inc. v. Skinner, 889 So. 2d 871, 873 (Fla. 2d DCA 2004) (noting that a case is not moot unless it "has been so fully -4- resolved that a judicial determination can have no actual effect" (quoting Montgomery, 468 So. 2d at 1016 (emphasis added))). The parties agree that Northside cannot operate a trauma center under the new trauma statutes because it would exceed the statutory maximum of three trauma centers for the trauma service area in which Northside is located. See § 395.402(1)(a)(9), (1)(c)(9). And they agree that the Department may not approve Northside's application. See § 395.4025(3)(d) ("Except as otherwise provided in this part, the [D]epartment may not approve an application . . . if approval of the application would exceed the limits on the numbers of . . . trauma centers set forth in s. 395.402(1)."). The parties do not agree, however, on the scope of remand. Northside requests that the order be merely vacated. Whereas Bayfront seeks remand for entry of a final order denying Northside's application. Because it was entered in error based on statutory provisions that had been superseded by legislative amendment, the Department's order must be set aside. And the law currently in effect requires Northside's application to be denied. As a result, we are authorized to order such action. See § 120.68(6)(a), Fla. Stat. (2018) (providing that the decision of a court reviewing final agency action "may be mandatory, prohibitory, or declaratory in form" and "shall provide whatever relief is appropriate irrespective of the original form of the petition," including not only the "set[ting] aside [of] agency action" but also the ordering of "agency action required by law"). Northside argues against such a remedy, asserting that final adjudication of the administrative action could "sow confusion" in the event that another court -5- declares the statute unconstitutional, whereas merely setting aside the Department's previous order would allow "the administrative case [to] return to the status quo ante that existed immediately prior to the passage of the New Law"—the ALJ's recommended order "pending before" the Department. However, this court is required to set aside agency action when a correct interpretation of a provision of law "compels a particular action." § 120.68(7)(d). Remanding a case for inaction would not be consistent with that charge. The fact that the constitutionality of a relevant statute has been challenged in another case does not justify having the Department forebear taking the "particular action" compelled by application of the law currently in effect. Cf. Int'l Truck & Engine Corp. v. Capital Truck, Inc., 872 So. 2d 372, 376 (Fla. 1st DCA 2004) (quashing nonfinal order of the Department of Highway Safety and Motor Vehicles abating administrative action until the conclusion of the pending appeal of a final order in related circuit court case). Such a remedy would be the functional equivalent of a temporary injunction pending appeal of an entirely separate case, involving different parties, without allegations and proof of facts entitling Northside to such relief. See Reserve at Wedgefield Homeowners' v. Dixon, 948 So. 2d 65, 67 (Fla. 5th DCA 2007) ("A preliminary injunction is an extraordinary remedy which should be granted only if the party seeking the injunction establishes the following criteria: (1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) substantial likelihood of success on the merits; and (4) consideration of the public interest." (quoting Dragomirecky v. Town of Ponce Inlet, 882 So. 2d 495, 496 (Fla. 5th DCA 2004))). -6- As such, we vacate the Department's final order and remand with instructions for the Department to enter a final order on Northside's petition based on the amended trauma statutes. Reversed and remanded. SILBERMAN and BLACK, JJ., Concur. -7-