STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NATURE'S WAY NURSERY OF MIAMI, INC.,
Petitioner,
vs.
FLORIDA DEPARTMENT OF HEALTH, AN EXECUTIVE BRANCH AGENCY OF THE STATE OF FLORIDA,
Respondent.
/
Case No. 18-0721
RECOMMENDED ORDER
This case came before Administrative Law Judge ("ALJ") John G. Van Laningham for final hearing on March 28, 2018, in
Tallahassee, Florida.
APPEARANCES
For Petitioner: Angela D. Miles, Esquire
Donna Elizabeth Blanton, Esquire Rex D. Ware, Esquire
Radey Law Firm, P.A.
301 South Bronough, Suite 200 Tallahassee, Florida 32301
For Respondent: Eduardo S. Lombard, Esquire
W. Robert Vezina, III, Esquire Megan S. Reynolds, Esquire
Vezina, Lawrence & Piscitelli, P.A.
413 East Park Avenue Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
The issue to be decided is whether Petitioner meets the "within-one-point" condition of eligibility for licensure as a
medical marijuana treatment center under section 381.986(8)(a)2.a., Florida Statutes.
PRELIMINARY STATEMENT
By letter dated January 17, 2018, Respondent Florida Department of Health notified Petitioner Nature's Way Nursery
of Miami, Inc., that it intended to deny Petitioner's application for registration as a medical marijuana treatment center.
Petitioner had submitted its application on October 17, 2017, asserting that it was eligible under a newly enacted provision of section 381.986, which requires Respondent to license some nurseries whose previous applications were denied, including each nursery that "had a final ranking within one point of the highest final ranking in its region under former s. 381.986, Florida Statutes 2014," and is currently ready to cultivate.
Respondent based its preliminary decision on Emergency Rule 64ER17-7, which purports to determine which nurseries meet
the "within-one-point" condition. Nature's Way does not meet the requirements of the emergency rule, and it has brought a separate rule challenge seeking a determination that the emergency rule is invalid.
Petitioner immediately filed a petition for administrative hearing pursuant to sections 120.569 and 120.57(1), Florida Statutes, requesting that its substantial interests in obtaining a license be determined in a formal proceeding. On February 12,
2018, Respondent forwarded the matter to the Division of Administrative Hearings, where it was assigned to this ALJ. The final hearing was held on March 28, 2018.
At the final hearing, Petitioner called as witnesses:
(i) its employee, Beatriz Garces; (ii) the director of Respondent's Office of Medical Marijuana Use, Christian Bax; and
(iii) an expert in mathematics and statistics, Dr. Ronald W. Cornew. Respondent did not present any witnesses. The parties' Joint Exhibits 1 through 5 were admitted into evidence without objection. Petitioner's Exhibits 1 through 15 and 21 through 29 were received in evidence, as were Respondent's Exhibits 1 through 6. Official recognition was taken of Petitioner's Exhibits 16 through 20.
The final hearing transcript was filed on April 9, 2018.
Both parties timely submitted proposed recommended orders, which were due on May 4, 2018, and these were considered in preparing this Recommended Order.
Unless otherwise indicated, citations to the official statute law of the state of Florida refer to Florida Statutes
2018.
FINDINGS OF FACT
BACKGROUND AND PARTIES
Respondent Florida Department of Health (the "Department" or "DOH") is the agency responsible for
administering and enforcing laws that relate to the general health of the people of the state. The Department's jurisdiction includes the state's medical marijuana program, which the Department oversees. Art. X, § 29, Fla. Const.;
§ 381.986, Fla. Stat.
Enacted in 2014, section 381.986, Florida Statutes (2015) (the "Noneuphoric Cannabis Law"), legalized the use of low-THC cannabis by qualified patients having specified illnesses, such as cancer and debilitating conditions that produce severe and persistent seizures and muscle spasms. The Noneuphoric Cannabis Law directed the Department to select one dispensing organization ("DO") for each of five geographic areas referred to as the northwest, northeast, central, southwest, and southeast regions of Florida. Once licensed, a regional DO would be authorized to cultivate, process, and sell medical marijuana, statewide, to qualified patients.
Section 381.986(5)(b), Florida Statutes (2015), prescribed various conditions that an applicant would need to meet to be licensed as a DO, and it required the Department to "develop an application form and impose an initial application and biennial renewal fee." DOH was, further, granted authority to "adopt rules necessary to implement" the Noneuphoric Cannabis Law. § 381.986(5)(d), Fla. Stat. (2015).
Accordingly, the Department's Office of Compassionate Use ("OCU"), which is now known as the Office of Medical Marijuana Use, adopted rules under which a nursery could apply for a DO license. Incorporated by reference in these rules is a form of an Application for Low-THC Cannabis Dispensing Organization Approval ("Application"). See Fla. Admin. Code
R. 64-4.002 (incorporating Form DH9008-OCU-2/2015).
To apply for one of the initial DO licenses, a nursery needed to submit a completed Application, including the
$60,063.00 application fee, no later than July 8, 2015.1/ See
Fla. Admin. Code R. 64-4.002(5).
Petitioner Nature's Way of Miami, Inc. ("Nature's Way"), is a nursery located in Miami, Florida, which grows and sells tropical plants to big box retailers throughout the nation. Nature's Way timely applied to the Department in 2015 for licensure as a DO in the southeast region.
THE 2015 DO APPLICATION CYCLE
Although the current dispute arises from the Department's intended denial of Nature's Way's October 19, 2017, application for registration as a medical marijuana treatment center ("MMTC"), which is the name by which DOs are now known, the licensing criterion at the heart of this matter, the "One Point Condition," can be satisfied only by a nursery, such as Nature's Way, whose 2015 application for licensure as a DO was
evaluated, scored, and not approved as of the enactment, in 2017, of legislation that substantially overhauled the Noneuphoric Cannabis Law. See Ch. 2017-232, Laws of Fla. The
current iteration of section 381.986, in effect as of this writing, will be called the "Medical Marijuana Law."
The One Point Condition operates retroactively in that it establishes a previously nonexistent basis for licensure that depends upon pre-enactment events. This is analogous to the legislative creation of a new cause of action, involving as it does the imposition of a new duty (to issue licenses) on the Department and the bestowal of a new right (to become licensed) on former applicants based on their past actions. The Department contends that all of the material facts surrounding these pre-enactment events have been conclusively established due to some combination of (i) Nature's Way's waiver of hearing rights, (ii) administrative finality, and (iii) the retroactive reach of the Medical Marijuana Law. Nature's Way, in contrast, maintains that there remain material facts subject to genuine dispute.
The undersigned rejects the Department's argument that all of the facts material to Nature's Way's current application are beyond dispute. In brief, the undersigned holds that the One Point Condition places new legal significance on two categories of pre-enactment facts, namely (i) historical and
ultimate facts that have never been determined with finality in a judicial or quasi-judicial proceeding and thus remain subject to dispute; and (ii) facts, both historical and ultimate, that were a critical and necessary part of the final agency action determining an applicant's substantial interests in obtaining a DO license under the Noneuphoric Cannabis Law. Because facts that have been established, quasi-judicially, with finality between parties (hereafter, "adjudicated facts") are binding on those parties in subsequent litigation under the doctrine of administrative finality, they would not be subject to genuine dispute in a proceeding to determine the substantial interests of an applicant seeking licensure under the One Point Condition who was a party to the prior proceeding.
In sum, because facts surrounding the inaugural competition under the Noneuphoric Cannabis Law for regional DO licenses are material to the determination of whether an applicant for licensure as an MMTC under the Medical Marijuana Law meets the One Point Condition, these seemingly unrelated matters must be recounted, and found, herein. To understand the issues at hand, it is essential first to become familiar with the evaluation and scoring of, and the agency actions with respect to, the applications submitted during the 2015 DO application cycle.
The Competitive, Comparative Evaluation
As stated in the Application, OCU viewed its duty to select five regional DOs as requiring OCU to choose "the most dependable, most qualified" applicant in each region "that can consistently deliver high-quality" medical marijuana. For ease of reference, such an applicant will be referred to as the "Best" applicant for short. Conversely, an applicant not chosen by OCU as "the most dependable, most qualified" applicant in a given region will be called, simply, "Not Best."
Given the limited number of available DO licenses under the Noneuphoric Cannabis Law, the 2015 application process necessarily entailed a competition. As the Application explained, applicants were not required to meet any "mandatory minimum criteria set by the OCU," but would be evaluated comparatively in relation to the "other Applicants" for the same regional license, using criteria "drawn directly from the Statute."
Clearly, the comparative evaluation would require the item-by-item comparison of competing applicants, where the "items" being compared would be identifiable factors drawn from the statute and established in advance. Contrary to the Department's current litigating position, however, it is not an intrinsic characteristic of a comparative evaluation that observations made in the course thereof must be recorded using
only comparative or superlative adjectives (e.g., least qualified, qualified, more qualified, most qualified).2/ Moreover, nothing in the Noneuphoric Cannabis Law, the Application, or Florida Administrative Code Rule 64-4.002 stated expressly, or necessarily implied, that in conducting the comparative evaluation, OCU would not quantify (express numerically an amount denoting) the perceived margins of difference between competing applications. Quite the opposite is true, in fact, because, as will be seen, rule 64-4.002 necessarily implied, if it did not explicitly require, that the applicants would receive scores which expressed their relative merit in interpretable intervals.
Specifically, the Department was required to "substantively review, evaluate, and score" all timely submitted and complete applications. Fla. Admin. Code R. 64-4.002(5)(a). This evaluation was to be conducted by a three-person committee (the "Reviewers"), each member of which had the duty to independently review and score each application. See Fla. Admin. Code R. 64-4.002(5)(b). The applicant with the "highest aggregate score" in each region would be selected as the Department's intended licensee for that region.
A "score" is commonly understood to be "a number that expresses accomplishment (as in a game or test) or excellence (as in quality) either absolutely in points gained or by
comparison to a standard." See "Score," Merriam-Webster.com,
http://www.merriam-webster.com (last visited May 30, 2018). Scores are expressed in cardinal numbers, which show quantity, e.g., how many or how much. When used as a verb in this context, the word "score" plainly means "to determine the merit of," or to "grade," id., so that the assigned score should be a cardinal number that tells how much quality the graded application has as compared to the competing applications. The language of the rule leaves little or no doubt that the Reviewers were supposed to score the applicants in a way that quantified the differences between them, rather than with superlatives such as "more qualified" and "most qualified" (or numbers that merely represented superlative adjectives).
By rule, the Department had identified the specific items that the Reviewers would consider during the evaluation. These items were organized around five subjects, which the undersigned will refer to as Topics. The five Topics were Cultivation, Processing, Dispensing, Medical Director, and Financials. Under the Topics of Cultivation, Processing, and Dispensing were four Subtopics (the undersigned's term): Technical Ability; Infrastructure; Premises, Resources, Personnel; and Accountability.
In the event, the 12 Topic-Subtopic combinations (e.g., Cultivation-Technical Ability, Cultivation-
Infrastructure), together with the two undivided Topics (i.e., Medical Director and Financials), operated as 14 separate evaluation categories. The undersigned refers to these
14 categories as Domains.
The Department assigned a weight (by rule) to each Topic, denoting the relative importance of each in assessing an applicant's overall merit. The Subtopics, in turn, were worth 25% of their respective Topics' scores, so that a Topic's raw or unadjusted score would be the average of its four Subtopics' scores, if it had them. The 14 Domains and their associated weights are shown in the following table:
CULTIVATION | 30% |
1. Cultivation – Technical Ability | 25% out of 30% |
2. Cultivation – Infrastructure | 25% out of 30% |
3. Cultivation – Premises, Resources, Personnel | 25% out of 30% |
4. Cultivation – Accountability | 25% out of 30% |
PROCESSING | 30% |
5. Processing – Technical Ability | 25% out of 30% |
6. Processing – Infrastructure | 25% out of 30% |
7. Processing: Premises, Resources, Personnel | 25% out of 30% |
8. Processing: Accountability | 25% out of 30% |
DISPENSING | 15% |
9. Dispensing: Technical Ability | 25% out of 15% |
10. Dispensing: Infrastructure | 25% out of 15% |
11. Dispensing: Premises, Resources, Personnel | 25% out of 15% |
12. Dispensing: Accountability | 25% out of 15% |
13. MEDICAL DIRECTOR | 5% |
14. FINANCIALS | 20% |
If there were any ambiguity in the meaning of the word "score" as used in rule 64-4.002(5)(b), the fact of the weighting scheme removes all uncertainty, because in order to take a meaningful percentage (or fraction) of a number, the number must signify a divisible quantity, or else the reduction of the number, x, to say, 20% of x, will not be interpretable. Some additional explanation here might be helpful.
If the number 5 is used to express how much of something we have, e.g., 5 pounds of flour, we can comprehend the meaning of 20% of that value (1 pound of flour). On the other hand, if we have coded the rank of "first place" with the number 5 (rather than, e.g., the letter A, which would be equally functional as a symbol), the meaning of 20% of that value is incomprehensible (no different, in fact, than the meaning of 20% of A). To be sure, we could multiply the
number 5 by 0.20 and get 1, but the product of this operation,
despite being mathematically correct (i.e., true in the abstract, as a computational result), would have no contextual meaning. This is because 20% of first place makes no sense.
Coding the rank of first place with the misleading symbol of "5 points" would not help, either, because the underlying referent——still a position, not a quantity——is indivisible no matter what symbol it is given.3/
We can take this analysis further. The weighting scheme clearly required that the points awarded to an applicant for each Topic must contribute a prescribed proportionate share both to the applicant's final score per Reviewer, as well as to its aggregate score. For example, an applicant's score for Financials had to be 20% of its final Reviewer scores and 20% of its aggregate score, fixing the ratio of unweighted Financials points to final points (both Reviewer and aggregate) at 5:1. For this to work, a point scale having fixed boundaries had to be used, and the maximum number of points available for the final scores needed to be equal to the maximum number of points available for the raw (unweighted) scores at the Topic level.
In other words, to preserve proportionality, if the applicants were scored on a 100-point scale, the maximum final score had to be 100, and the maximum raw score for each of the five Topics needed to be 100, too.
The reasons for this are as follows. If there were no limit to the number of points an applicant could earn at the Topic level (like a baseball game), the proportionality of the weighting scheme could not be maintained; an applicant might run up huge scores in lower-weighted Topics, for example, making them proportionately more important to its final score than higher-weighted Topics. Similarly, if the maximum number of points available at the Topic level differed from the maximum number of points available as a final score, the proportionality of the weighting scheme (the prescribed ratios) would be upset, obviously, because, needless to say, 30% of, e.g., 75 points is not equal to 30% of 100 points.
If a point scale is required to preserve proportionality, and it is, then so, too, must the intervals between points be the same, for all scores, in all categories, or else the proportionality of the weighting scheme will fail. For a scale to be uniform and meaningful, which is necessary to maintain the required proportionality, the points in it must be equidistant from each other; that is, the interval between 4 and 5, for example, needs to be the same as the interval between 2 and 3, and the distance between 85 and 95 (if the scale goes that high) has to equal that between 25 and 35.4/ When the distances between values are known, the numbers are said to express interval data.5/
Unless the distances between points are certain and identical, the prescribed proportions of the weighting scheme established in rule 64-4.002 will be without meaning. Simply stated, there can be no sense of proportion without interpretable intervals. We cannot say that a 5:1 relationship exists between two point totals (scores) if we have no idea what the distance is between 5 points and 1 point.6/
The weighting system thus necessarily implied that the "scores" assigned by the Reviewers during the comparative evaluation would be numerical values (points) that (i) expressed quantity; (ii) bore some rational relationship to the amount of quality the Reviewer perceived in an applicant in relation to the other applicants; and (iii) constituted interval data. In other words, the rule unambiguously required that relative quality be counted (quantified), not merely coded.
The Scoring Methodology: Interval Coding
In performing the comparative evaluation of the initial applications filed in 2015, the Reviewers were required to use Form DH8007-OCU-2/2015, "Scorecard for Low-THC Cannabis Dispensing Organization Selection" (the "Scorecard"), which is incorporated by reference in rule 64-4.002(5)(a). There are no instructions on the Scorecard. The Department's rules are silent to how the Reviewers were supposed to score applications
using the Scorecard, and they provide no process for generating aggregate scores from Reviewer scores.
To fill these gaps, the Department devised several policies that governed its free-form decision-making in the run- up to taking preliminary agency action on the applications. Regarding raw scores, the Department decided that the Reviewers would sort the applications by region and then rank the applications, from best to worst, on a per-Domain basis, so that each Reviewer would rank each applicant 14 times.
An applicant's raw Domanial score would be its position in the ranking, from 1 to x, where x was both (i) equal to the number of applicants within the region under review and
(ii) the number assigned to the rank of first place (or Best).
In other words, the Reviewer's judgments as to the descending order of suitability of the competing applicants, per Domain, were symbolized or coded with numbers that the Department called "rank scores," and which were thereafter used as the applicants' raw Domanial scores.
To be more specific, in a five-applicant field such as the southeast region, the evaluative judgments of the Reviewers were coded as follows:
Evaluative Judgment | Symbol ("Rank Score") |
Best qualified applicant ("Best") | 5 points |
Less qualified than the best qualified applicant, but better qualified than all other applicants ("Second Best") | 4 points |
Evaluative Judgment | Symbol ("Rank Score") |
Less qualified than two better qualified applicants, but better qualified than all other applicants ("Third Best") | 3 points |
Less qualified than three better qualified applicants, but better qualified than all other applicants ("Fourth Best") | 2 points |
Less qualified than four better qualified applicants ("Fifth Best") | 1 point |
The Department's unfortunate decision to code the Reviewers' qualitative judgments regarding positions in rank orders with symbols that look like quantitative judgments regarding amounts of quality led inexorably to extremely misleading results. The so-called "rank scores" give the false impression of interval data, tricking the consumer (and evidently the Department, too) into believing that the distance between scores is certain and the same; that, in other words, an applicant with a "rank score" of 4 is 2 points better than an applicant with a "rank score" of 2. If this deception had been intentional (and, to be clear, there is no evidence it was), we could fairly call it fraud. Even without bad intent, the decision to code positions in ranked series with "scores" expressed as "points" was a colossal blunder that turned the scoring process into a dumpster fire.
Before proceeding, it must be made clear that an applicant's being ranked Best in a Domain meant only that, as the highest-ranked applicant, it was deemed more suitable, by some unknown margin, than all the others within the group. By
the same token, to be named Second Best meant only that this applicant was less good, in some unknown degree, than the Best applicant, and better, in some unknown degree, than the Third Best and remaining, lower-ranked applicants. The degree of difference in suitability between any two applicants in any Domanial ranking might have been a tiny sliver or a wide gap, even if they occupied adjacent positions, e.g., Second Best and Third Best. The Reviewers made no findings with respect to degrees of difference. Moreover, it cannot truthfully be claimed that the interval between, say, Second Best and Third Best is the same as that between Third Best and Fourth Best, for there exists no basis in fact for such a claim.
In sum, the Department's Domanial "rank scores" merely symbolized the applicants' positions in sets of ordered applications. Numbers which designate the respective places (ranks) occupied by items in an ordered list are called ordinal numbers. The type of non-metric data that the "rank scores" symbolize is known as ordinal data, meaning that although the information can be arranged in a meaningful order, there is no unit or meter by which the intervals between places in the ranking can be measured.
Because it is grossly misleading to refer to positions in a ranking as "scores" counted in "points," the so-called "rank scores" will hereafter be referred to as "Ordinals"——a
constant reminder that we are working with ordinal data. This is important to keep in mind because, as will be seen, there are limits on the kinds of mathematical manipulation that can appropriately be carried out with ordinal data.
The Department's policy of coding positions in a rank order with "rank scores" expressed as "points" will be called the "Interval Coding Policy." In conducting the evaluation, the Reviewers followed the Interval Coding Policy.
The Computational Methodology: Interval Statements and More
Once the Reviewers finished evaluating and coding the applications, the evaluative phase of the Department's free-form process was concluded. The Reviewers had produced a dataset of Domanial Ordinals——42 Domanial Ordinals for each applicant to be exact——that collectively comprised a compilation of information, stored in the scorecards. This universe of Domanial Ordinals will be called herein the "Evaluation Data." The Department would use the Evaluation Data in the next phase of its free-form process as grounds for computing the applicants' aggregate scores.
Rule 64-4.002(5)(b) provides that "scorecards from each reviewer will be combined to generate an aggregate score for each application. The Applicant with the highest aggregate score in each dispensing region shall be selected
as the region's Dispensing Organization." Notice that the rule here switches to the passive voice. The tasks of
(i) "combin[ing]" scorecards to "generate" aggregate scores and of (ii) "select[ing]" regional DOs were not assigned to the Reviewers, whose work was done upon submission of the scorecards.
As mentioned previously, the rule does not specify how the Evaluation Data will be used to generate aggregate scores. The Department formulated extralegal policies7/ for this purpose, which can be stated as follows: (i) the Ordinals, which in actuality are numeric code for uncountable information content, shall be deemed real (counted) points, i.e., equidistant units of measurement on a 5-point interval scale (the "Deemed Points Policy"); (ii) in determining aggregate scores, the three Reviewer scores will be averaged instead of added together, so that "aggregate score" means "average Reviewer score" (the "Aggregate Definition"); and (iii) the results of mathematical computations used to determine weighted scores at the Reviewer level and, ultimately, the aggregate scores themselves will be carried out to the fourth decimal place (the "Four Decimal Policy").
The Department's computational process for generating aggregate scores operated like this. For each applicant, a Reviewer final score was derived from each Reviewer, using that
Reviewer's 14 Domanial Ordinals for the applicant. For each of the subdivided Topics (Cultivation, Processing, and Dispensing), the mean of the Reviewer's four Domanial Ordinals for the applicant (one Domanial Ordinal for each Subtopic) was determined by adding the four numbers (which, remember, were whole numbers as discussed above) and dividing the sum by 4.
The results of these mathematical operations were reported to the second decimal place. (The Reviewer raw score for each of the subdivided Topics was, in other words, the Reviewer's average Subtopic Domanial Ordinal.) For the undivided Topics of Medical Director and Financials, the Reviewer raw score was simply the Domanial Ordinal, as there was only one Domanial Ordinal per undivided Topic. The five Reviewer raw Topic scores (per Reviewer) were then adjusted to account for the applicable weight factor. So, the Reviewer raw scores for Cultivation and Processing were each multiplied by 0.30; raw scores for Dispensing were multiplied by 0.15; raw scores (Domanial Ordinals) for Medical Director were multiplied by 0.05; and raw scores (Domanial Ordinals) for Financials were multiplied
by 0.20. These operations produced five Reviewer weighted-Topic scores (per Reviewer), carried out (eventually) to the fourth decimal place. The Reviewer final score was computed by adding the five Reviewer weighted-Topic scores. Thus, each applicant
wound up with three Reviewer final scores, each reported to the fourth decimal place pursuant to the Four Decimal Policy.
The computations by which the Department determined the three Reviewer final scores are reflected (but not shown) in a "Master Spreadsheet"8/ that the Department prepared. Comprising three pages (one for each Reviewer), the Master Spreadsheet shows all of the Evaluation Data, plus the 15 Reviewer raw Topic scores per applicant, and the three Reviewer final scores for each applicant. Therein, the Reviewer final scores of Reviewer 2 and Reviewer 3 were not reported as numbers having five significant digits, but were rounded to the nearest hundredth.
To generate an applicant's aggregate score, the Department, following the Aggregate Definition, computed the average Reviewer final score by adding the three Reviewer final scores and dividing the sum by 3. The result, under the Four Decimal Policy, was carried out the ten-thousandth decimal point. The Department referred to the aggregate score as the "final rank" in its internal worksheets. The Department further assigned a "regional rank" to each applicant, which ordered the applicants, from best to worst, based on their aggregate scores. Put another way, the regional rank was an applicant's Ultimate Ordinal.
The Reviewer final scores and the "final ranks" (all carried out to the fourth decimal place), together with the "regional ranks," are set forth in a table the Department has labeled its November 2015 Aggregated Score Card (the "Score Card"). The Score Card does not contain the Evaluation Data.
The Master Spreadsheet and Score Card are work papers from the Department's free-form comparative evaluation of DO applications in 2015. Essentially notes, these public records provide some insight into how and why the Department made the decisions it took that year, approving some and denying many of the applications it had reviewed. For reasons that will soon become clear, it is important to remember that although these work papers contain relevant information——information which, in fact, informed agency decisions——they are not themselves, separately or taken together, agency actions.
Furthermore, not every fact or "evidence" an agency considers during free-form deliberations is necessary and critical to its preliminary agency action. Predecisional matters that the agency takes into account in arriving at its intended action that are merely "deliberative" facts (as opposed to adjudicative facts upon which a party's substantial interests depend) might be informative or explanatory, but they are not a critical and necessary part of the decision.
Preliminary Agency Actions
Once the aggregate scores had been computed, the Department was ready to take preliminary agency action on the applications. As to each application, the Department made a binary decision: Best or Not Best. The intended action on the applications of the five Best applicants (one per region), which were identified by their aggregate scores (highest per region), would be to grant them. Each of the Not Best applicants, so deemed due to their not having been among the highest scored applicants, would be notified that the Department intended to deny its application.
To explain in greater detail, the ultimate factual determination that the Department made for each application was whether the applicant was, or was not, the most dependable, most qualified nursery as compared to the alternatives available in a particular region.
The evidence of facts behind these determinations consisted of the applications themselves, whose representations were taken as true. That is, when the Reviewers formed opinions about the relative suitability of the applicants in connection with the multiple categories of criteria, they accepted the facts as stated in the applications; their judgments were based, in effect, on a record of undisputed facts.
The Reviewers' Ordinally-coded judgments regarding which applicants were Best, Second Best, Third Best, and so forth in each Domain amounted to a kind of evidence, loosely analogous to opinion testimony, which was in conflict inasmuch as the Reviewers did not agree on all rankings. (The aggregate scores are apparently supposed to synthesize the disparate opinions, to produce a simulacrum of a consensus; because the Reviewers did not collaborate as a collegial body, the aggregate scores do not represent a real consensus.) Crucially, however, despite appearances, the Evaluation Data comprising the Reviewers' opinions was not quantitative but qualitative, for the Reviewers, as mentioned, made no attempt to quantify the relative suitability of the applicants in numeric terms and thus produced no interval data whatsoever.
Using the Deemed Points Policy and the Four Decimal Policy, the Department purported to turn the water of Evaluation Data into the wine of finely tuned aggregate scores, which latter provided the direct grounds for the Department's ultimate decisions as to which applicants were the most dependable, most qualified nurseries. The aggregate scores, however, were (and are) devoid of quantitative content and therefore cannot be compared mathematically to find interval differences; it is impossible, after all, to extract information that was never present to begin with. As will be explained, the aggregate
scores, if properly construed and corrected for flagrant overprecision, provide at most a very rough idea of the Reviewers' "consensus opinion" (constructive, not actual) as to the relative order of the applicants, sorted by suitability (most – least).
In the end, the Department's preliminary decisions on the DO applications were qualitative, not quantitative, and were formulated at a level of generality, i.e., Best-grant/Not Best- deny, far above such particular details as whether an applicant's aggregate score constituted a true interval statement. It was neither critical nor necessary to the preliminary agency actions actually taken that findings be made measuring the precise space between applicants; or that the seemingly granular aggregate scores be adjudged true or credible to the ten-thousandths point.
Clear Points of Entry
The Department decided preliminarily that Costa was Best and that four other southeast region applicants, including Nature's Way, were Not Best. Accordingly, the Department's intended agency action was to grant Costa's application and deny the rest.
Letters dated November 23, 2015, were sent to the applicants informing them either that "your application received the highest score" and thus is granted, or that because "[you
were] not the highest scored applicant in [your] region, your application . . . is denied," whichever was the case. The letters contained a clear point of entry whose legal sufficiency as to the stated and recognizable agency action Nature's Way does not dispute, which concluded with the usual warning that the "[f]ailure to file a petition within 21 days shall constitute a waiver of the right to a hearing on this agency action."9/ (Emphasis added).
Nature's Way decided not to request a hearing in 2015, and therefore it is undisputed that the Department's proposed action, i.e., the denial of Nature's Way's application because the applicant was not deemed to be the most dependable, most qualified nursery for purposes of selecting a DO for the southeast region, became final agency action without a formal hearing, the right to which Nature's Way elected to waive.
The Department argues that Nature's Way thereby waived, forever and for all purposes, the right to a hearing on the question of whether its and Costa's Department-computed aggregate scores of 2.8833 and 4.4000, respectively, are, in fact, true as interval statements of quantity. (Note that if these scores are false as interval data, as Nature's Way contends, then the statement that Costa's score exceeds Nature's Way's score by 1.5167 points is false, also, because it is impossible to calculate a true, interpretable difference
(interval) between two values unless those values are expressions of quantified data. Simply put, you cannot subtract Fourth Best from Best.) The Department's waiver argument overreaches.
To be sure, Nature's Way waived the right to a hearing on the proposed denial of its application, which was the only recognizable agency action in clear view in 2015. Nature's Way is not attempting in this proceeding, however, to contest the denial of its 2015 DO application. What the Department is really trying to say is that, in contesting the proposed denial of its 2017 MMTC application, Nature's Way is barred by administrative finality from "relitigating" matters, such as the truth of the aggregate scores as quantifiable facts, which were supposedly decided conclusively in the final agency action on its DO application in 2015.
The finality issue boils down to whether the truth of the aggregate scores, as measurable quantities, was actually adjudicated (or even judicable) in 2015, so that the numbers 2.8833 and 4.4000 are now incontestably true interval data, such that one figure can meaningfully be subtracted from the other for purposes of applying the One Point Condition.
The Department did not explicitly adjudicate the question of the aggregate scores' validity as interval data in taking final agency action on Nature's Way's application and
probably never gave the matter serious thought. Thus, we must consider whether the aggregate scores, as quantities, were critical and necessary to the relevant agency action. In this regard, Nature's Way contends that the absence, in the notices of intended decision, of any mention of the numbers comprising the scores is compelling, even dispositive, evidence that the particular scores were not important. Not surprisingly, the Department asserts that its omission of the "final ranks" from the notices to the applicants is "legally irrelevant" to the question of whether the scores were necessarily determined to be true quantities in the agency action.
The Department is wrong about the supposed irrelevance of the noninclusion of the scores in the 2015 notices. As regards Nature's Way, the notice of intended action is the only written "order" that was entered determining the applicant's substantial interests; thus, the notice/"order" is the most persuasive proof of what the Department actually decided. That the Department failed, at the time when it would have mattered to the sufficiency of the clear point of entry, to include a finding to the effect that "your aggregate score was determined to be 2.8833 points on a 5-point scale as compared the highest measured score of 4.4000 points" is strong evidence that the truth of an applicant's aggregate score as a statement of fact expressing quantified interval data was not part and parcel of
the decision then being taken; if the Department had thought, then, that truthful interval statements of fact were critical and necessary to its proposed action, it presumably would have (and certainly should have) included such information in the notice, over which it had absolute control.
Ultimately, the question of whether the aggregate scores were indispensable to, and thus necessarily decided in, the Department's notice of intent/"order" depends on the meaning of the scores. There is a strong tendency to look at a number, such as 2.8833, and assume that it is unambiguous——and, indeed, the Department is unquestionably attempting to capitalize on that tendency. But numbers can be ambiguous.10/ The aggregate scores are, clearly, open to interpretation.
To begin, however, it must be stated up front that there is no dispute about the existence of the aggregate scores. It is an undisputed historical fact, for example, that Nature's Way had a final ranking (aggregate score) of 2.8833 as computed by the Department in November 2015. There is likewise no dispute that Costa's Department-computed aggregate score was 4.4000. In this sense, the scores are historical facts—— relevant ones, too, since an applicant needed to have had an aggregate score in 2015 to take advantage of the One Point Condition enacted in 2017.
The existence of the scores, however, is a separate property from their meaning. Clearly, the aggregate scores that exist from history purport to convey information about the applicants; in effect, they are statements. The ambiguity arises from the fact that each score could be interpreted as having either of two different meanings. On the one hand, an aggregate score could be understood as a numerically coded non- quantity, namely a rank. In other words, the aggregate scores could be interpreted reasonably as ordinal data. On the other hand, an aggregate score could be understood as a quantified measurement taken in units of equal value, i.e., interval data.
In 2015, the Department insisted (when it suited its purposes) that the aggregate scores were numeric shorthand for its discretionary value judgments about which applicants were best suited, by region, to be DOs, reflecting where the applicants, by region, stood in relation to the best suited applicants and to each other. The Department took this position because it wanted to limit the scope of the formal hearings requested by disappointed applicants to reviewing its decisions for abuse of discretion.
Yet, even then, the Department wanted the aggregate scores to be seen as something more rigorously determined than a discretionary ranking. Scores such as 2.8833 and 3.2125 plainly connote a much greater degree of precision than "these
applicants are less qualified than others." Indeed, in one formal hearing, the Department strongly implied that the aggregate scores expressed interval data, arguing that they showed "the [Department's position regarding the] order of magnitude" of the differences in "qualitative value" between the applicants, so that a Fourth Best applicant having a score
of 2.6458 was asserted to be "far behind" the highest-scored applicant whose final ranking was 4.1042.11/ A ranking, of course, expresses order but not magnitude; interval data, in contrast, expresses both order and magnitude, and it is factual in nature, capable of being true or false.
In short, as far as the meaning of the aggregate scores is concerned, the Department has wanted to have it both ways.
Currently, the Department is all-in on the notion that the aggregate scores constitute precise interval data, i.e., quantified facts. In its Proposed Recommended Order, on
page 11, the Department argues that "Nature's Way does not meet the within-one-point requirement" because "Nature's Way's Final Rank [aggregate score of 2.8833] is 1.5167 points less than the highest Final Rank [Cost's aggregate score, 4.4000] in its region." This is a straight-up statement of fact, not a value judgment or policy preference. Moreover, it is a statement of fact which is true only if the two aggregate scores being
compared (2.8833 and 4.4000), themselves, are true statements of quantifiable fact about the respective applicants.
The Department now even goes so far as to claim that the aggregate score is the precise and true number (quantity) of points that an applicant earned as a matter of fact. On page 4 of its Proposed Recommended Order, the Department states that Costa "earned a Final Rank of 4.4000" and that Nature's Way had an "earned Final Rank of 2.8833." In this view, the scores tell us not that, in the Department's discretionary assignment of value, Costa was better suited to be the DO for the southeast region, but rather that (in a contest, it is insinuated, the Department merely refereed) Costa outscored Nature's Way by exactly 1.5167 points——and that the points have meaning as equidistant units of measurement.
If the scores were understood and used only as ordinal data, i.e., solely as numerical expressions of the Department's discretionary value judgment that Costa was Best and Nature's Way, Not Best, then the scores were part of the Department's action on Nature's Way's application. But that is not the meaning being ascribed to the scores in this case. Rather, as just mentioned, the Department is using the aggregate scores as interval statements of quantifiable fact, claiming that Nature's Way "earned" exactly 2.8833 points on a 5-point scale where each point represents a standard unit of measurement, while Costa
"earned" 4.4000 points; this, again, is the only way it would be correct to say that Costa was 1.5167 points better than Nature's Way. The aggregate scores assuredly did not need to have this meaning to support the Department's final action on Nature's Way's application.
This is because the Department reasonably could have grounded——and, in fact, had to base——its denial of Nature's Way's application on an understanding that the scores expressed numerically (i) the Department's discretionary choice of Costa as the most dependable, most qualified nursery among the southeast region applicants and (ii) the direction of the also- rans (next best to least qualified) in a particular order behind Costa without quantifying any particular distances from Costa or between them. That is, it was not necessary and critical, in 2015, for the Department to find that Costa was 1.5167 points better than Nature's Way in order to deny Nature's Way's application on the more abstract, but sufficient, ground that Nature's Way was Not Best. (Nor could the Department have made such a finding, given that genuine measured quantities were not included in the Evaluation Data.)
The point should not get lost that Nature's Way, and the other nurseries, applied for a DO license, not an aggregate score. The agency action in 2015 was not, therefore, to grant a particular score to an application, nor, certainly, was it to
grant the applications of those whose score was a particular number, or within one point of a particular number. It was, rather, to choose the most dependable, most qualified nurseries and grant them licenses, while simultaneously denying the other applications. The aggregate scores guided these decisions, to be sure, but they were not, themselves, the matters being decided. Unlike now, where the aggregate scores are facts that must be proven true as quantities so that the "within-one-point" issue can be decided through formal proceedings, they were, then, "proof," sort of, of the ultimate fact that Costa (or another applicant) was the most qualified nursery for a region—— "proof" upon which, moreover, the Department was required to rely in deciding through free-form proceedings whether it intended to grant or deny a particular application.
The undersigned finds that while the aggregate scores, as unquantified value judgments (i.e., nonnumeric opinions coded with numbers), were integral to the Department's free-form decision-making process, as interval data they were not essential to the agency action of denying Nature's Way's application——and could not have been, in any event, since the aggregate scores were never infused with quantifiable information content. In short, the truth of the aggregate scores as statements of fact expressing interval data has never
been previously adjudicated as between the Department and Nature's Way.
Substantiating the foregoing finding is the irrefutable observation that an applicant such as Nature's Way would have gotten nowhere challenging the 2015 proposed agency action based on a dispute about the truth of its aggregate score. Suppose that, after receiving the notice of intended denial, Nature's Way had pored over the Master Spreadsheet and Score Card and determined that the Department had made what it believed was a computational error, which, if corrected, would result in the upward revision of Nature's Way's aggregate score to 3.8833. Imagine, then, what would have happened if Nature's Way had requested a disputed-fact hearing to contest its score based on the alleged mathematical mistake, demanding a correction. Even if the Department disagreed that it had made a mistake, it probably would have denied the hearing request on the grounds that the disputed fact (whether the score should have been 3.8833 instead of 2.8833) was not material, and it would have been within its rights to do so. To change the proposed agency action, Nature's Way would have needed to prove that it was the most dependable, most qualified nursery in the southeast region——not that its aggregate score should have
been 3.8833.12/
Now suppose Nature's Way had discovered that an alleged math error had dropped its score to 2.8833 from 4.0033—— an error, in other words, which, if corrected, would have put Nature's Way in first place, above Costa. Even in that seemingly more favorable situation for Nature's Way, to change the proposed denial of its application to a final order granting the same, Nature's Way still would have needed to prove at hearing, where a de novo comparative review of the applications would be undertaken, that it was, in fact, the most dependable, most qualified nursery——an ultimate determination that Costa or another nursery, at least, if not the Department, would almost certainly have disputed. The aggregate scores, together with proof of the alleged math error, might (or might not) have been received in the de novo hearing13/; but, if admitted, evidence establishing that, based on the Evaluation Data, Nature's Way's score actually should have been 4.0033 would not have sufficed, or even been necessary, to prove that Nature's Way was, in fact, the most qualified candidate, since the ALJ would not be sitting in review of the Department's scoring decisions, but instead deciding for himself or herself, anew, the question of relative suitability.14/
The undersigned must acknowledge that the preceding two paragraphs rest on a presupposition of fidelity to the Administrative Procedure Act ("APA"). In fact, in actual
proceedings arising from the 2015 preliminary agency actions, as previously mentioned, the Department took the clearly erroneous position that the ALJ was limited to merely reviewing the Department's licensing decisions, under the highly deferential abuse of discretion standard, as opposed to formulating final agency actions, which is standard practice in section 120.57 hearings, where the agency's preliminary decisions are given no deference.15/
The Department actually went farther than that, writing that "the ALJ cannot take the place of the three specially qualified [Reviewers because the] ALJ is not a certified public accountant, the director of the [OCU], and a member of the Drug Policy Advisory Council all in one."16/ It is plain that the Department, left to its own devices, would have afforded a very limited, and probably inadequate, administrative remedy to the disappointed applicants of 2015, because even if the ALJ found that the Department had abused its discretion,17/ the ALJ could not (as the Department would have it) do anything to remedy the situation except, perhaps, remand the case to the Department for a brand new evaluation, as an appellate court would remand a case for a new trial. Of course, the Department had, and has, no basis in law for radically amending the APA in such fashion. As it happened, events, in particular the enactment in 2017 of the Medical Marijuana Law, relieved the
Department of the burden of defending its untenable arguments before a court of appeal.
It cannot go unmentioned, therefore, that the Department, which believes that none of the applicants was ever entitled to a full and fair opportunity to litigate, de novo, the validity of the scores even as ordinal data for purposes of challenging the preliminary licensing decisions, is currently arguing (in true "heads I win, tails you lose" fashion) that those same scores were conclusively adjudicated via final agency action in 2015 to be true as statements of quantified fact, i.e., as interval data.
This position cannot prevail. The Master Spreadsheet and Score Card are not modern-day Tablets of Stone upon which the inerrant Law was inscribed by the hand of the Almighty Bureaucrat. To repeat for emphasis, the truth of the scores, as statements of quantified fact, has never been adjudicated.
ENACTMENT OF THE MEDICAL MARIJUANA LAW
Effective January 3, 2017, Article X of the Florida Constitution was amended to include a new section 29, which addresses medical marijuana production, possession, dispensing, and use. Generally speaking, section 29 expands access to medical marijuana beyond the framework created by the Florida Legislature in 2014.
To implement the newly adopted constitutional provisions and "create a unified regulatory structure," the legislature enacted the Medical Marijuana Law, which substantially revised section 381.986 during the 2017 Special Session. Ch. 2017-232, § 1, Laws of Fla. Among other things, the Medical Marijuana Law establishes a licensing protocol for ten new MMTCs. The relevant language of the new statute states:
(8) MEDICAL MARIJUANA TREATMENT CENTERS.—
(a) The department shall license medical marijuana treatment centers to ensure reasonable statewide accessibility and availability as necessary for qualified patients registered in the medical marijuana use registry and who are issued a physician certification under this section.
* * *
The department shall license as medical marijuana treatment centers 10 applicants that meet the requirements of this section, under the following parameters:
As soon as practicable, but no later than August 1, 2017, the department shall license any applicant whose application was reviewed, evaluated, and scored by the department and which was denied a dispensing organization license by the department under former s. 381.986, Florida Statutes 2014; which had one or more administrative or judicial challenges pending as of January 1, 2017, or had a final ranking within one point of the highest final ranking in its region under former s. 381.986, Florida Statutes 2014; which meets the requirements of this section; and which provides documentation to the department that it has the existing infrastructure and technical and technological ability to begin
cultivating marijuana within 30 days after registration as a medical marijuana treatment center.
§ 381.986, Fla. Stat. (Emphasis added: The underscored provision is the One Point Condition).
The legislature granted the Department rulemaking authority, as needed, to implement the provisions of section 381.986(8). § 381.986(8)(k), Fla. Stat. In addition, the legislature authorized the Department to adopt emergency rules pursuant to section 120.54(4), as necessary to implement section 381.986, without having to find an actual emergency, as
otherwise required by section 120.54(4)(a). Ch. 2017-232, § 14, Laws of Fla.
IMPLEMENTATION OF THE ONE POINT CONDITION AND ADOPTION OF THE EMERGENCY RULE
The One Point Condition went into effect on June 23, 2017. Ch. 2017-232, § 20, Laws of Fla. Thereafter, the Department issued a license to Sun Bulb Nursery (a 2015 DO applicant in the southwest region), because the Department concluded that Sun Bulb's final ranking was within one point of the highest final ranking in the southwest region.18/
Keith St. Germain Nursery Farms ("KSG"), like Nature's Way a 2015 DO applicant for the southeast region, requested MMTC registration pursuant to the One Point Condition in June 2017. In its request for registration, KSG asserted that the One Point
Condition is ambiguous and proposed that the Department either calculate the one point difference based on the regional ranks set forth in the Score Card (KSG was the regional Second Best, coded as Ultimate Ordinal 4) or round off the spurious decimal points in the aggregate scores when determining the one point difference.
The Department preliminarily denied KSG's request for MMTC registration in August 2017. In its notice of intent, the Department stated in part:
The highest-scoring entity in the Southeast Region, Costa Nursery Farms, LLC, received a final aggregate score of 4.4000. KSG received a final aggregate score of 3.2125. Therefore, KSG was not within one point of Costa Farms.
KSG requested a disputed-fact hearing on this proposed agency action and also filed with the Division of Administrative Hearings a Petition for Formal Administrative Hearing and Administrative Determination Concerning Unadopted Rules, initiating Keith St. Germain Nursery Farms v. Florida Department
of Health, DOAH Case No. 17-5011RU ("KSG's Section 120.56(4) Proceeding"). KSG's Section 120.56(4) Proceeding, which Nature's Way joined as a party by intervention, challenged the legality of the Department's alleged unadopted rules for determining which of the 2015 DO applicants were qualified for licensure pursuant to the One Point Condition.
Faced with the KSG litigation, the Department adopted Emergency Rule 64ER17-3, which stated in relevant part:
For the purposes of implementing
s. 381.986(8)(a)2.a., F.S., the following words and phrases shall have the meanings indicated:
Application – an application to be a dispensing organization under former
s. 381.986, F.S. (2014), that was timely submitted in accordance with Rule 64- 4.002(5) of the Florida Administrative Code (2015).
Final Ranking – an applicant's aggregate score for a given region as provided in the column titled "Final Rank" within the November 2015 Aggregated Score Card, incorporated by reference and available at [hyperlink omitted], as the final rank existed on November 23, 2015.
Highest Final Ranking – the final rank with the highest point value for a given region, consisting of an applicant's aggregate score as provided in the column titled "Final Rank" within the November 2015 Aggregated Score Card, as the final rank existed on November 23, 2015.
Within One Point – one integer (i.e., whole, non-rounded number) carried out to four decimal points (i.e., 1.0000) by subtracting an applicant's final ranking from the highest final ranking in the region for which the applicant applied.
Qualified 2015 Applicant – an individual or entity whose application was reviewed, evaluated, and scored by the department and that was denied a dispensing organization license under former
s. 381.986, F.S. (2014) and either: (1) had one or more administrative or judicial challenges pending as of January 1, 2017; or
had a final ranking within one point of the highest final ranking in the region for which it applied, in accordance with Rule 64-4.002(5) of the Florida Administrative Code (2015).
The Department admits that not much analysis or thought was given to the development of this rule, which reflected the Department's knee-jerk conclusion that the One Point Condition's use of the term "final ranking" clearly and unambiguously incorporated the applicants' "aggregate scores" (i.e., "final rank" positions), as stated in the Score Card, into the statute. In any event, the rule's transparent purpose was to adjudicate the pending licensing dispute with KSG and shore up the Department's ongoing refusal (in Department of Health Case
No. 2017-0232) to grant KSG a formal hearing on the proposed denial of its application.
On October 26, 2017, the Department entered into a settlement agreement with KSG pursuant to which the Department agreed to register KSG as an MMTC. The Department issued a Final Order Adopting Settlement Agreement with KSG on
October 30, 2017. That same day (and in order to effectuate the settlement with KSG), the Department issued rule 64ER17-7 (the "Emergency Rule"), the validity of which is at issue in related DOAH Case No. 17-5801RE. The Emergency Rule amends former
rule 64ER17-3 to expand the pool of Qualified 2015 Applicants by exactly one, adding KSG——not by name, of course, but by deeming
all the regional Second Best applicants to be Within One Point. Because KSG was the only 2015 applicant ranked Second Best in its region that did not have an aggregate score within one point of its region's Best applicant in accordance with rule 64ER17-3, KSG was the only nursery that could take advantage of the newly adopted provisions.
As relevant, the Emergency Rule provides as follows:
This emergency rule supersedes the emergency rule 64ER17-3 which was filed and effective on September 28, 2017.
(1) For the purposes of implementing
s. 381.986(8)(a)2.a., F.S., the following words and phrases shall have the meanings indicated:
Application – an application to be a dispensing organization under former
s. 381.986, F.S. (2014), that was timely submitted in accordance with Rule 64- 4.002(5) of the Florida Administrative Code (2015).
Final Ranking – an applicant's aggregate score for a given region as provided in the column titled "Final Rank" or the applicant's regional rank as provided in the column titled "Regional Rank" within the November 2015 Aggregated Score Card, incorporated by reference and available at [hyperlink omitted], as the final rank existed on November 23, 2015.
Highest Final Ranking – the final rank with the highest point value for a given region, consisting of an applicant's aggregate score as provided in the column titled "Final Rank" or the applicant's regional rank as provided in the column titled "Regional Rank" within the November
2015 Aggregated Score Card, as the final rank existed on November 23, 2015.
Within One Point – for the aggregate score under the column "Final Rank" one integer (i.e., whole, non-rounded number) carried out to four decimal points (i.e., 1.0000) or for the regional rank under the column "Regional Rank" one whole number difference, by subtracting an applicant's final ranking from the highest final ranking in the region for which the applicant applied.
Qualified 2015 Applicant – an individual or entity whose application
was reviewed, evaluated, and scored by the department and that was denied a dispensing organization license under former
s. 381.986, F.S. (2014) and either:
(1) had one or more administrative or judicial challenges pending as of January 1, 2017; or (2) had a final ranking within one point of the highest final ranking in the region for which it applied, in accordance with Rule 64-4.002(5) of the Florida Administrative Code (2015).
(Emphasis added).
In a nutshell, the Emergency Rule provides that an applicant meets the One Point Condition if either (i) the difference between its aggregate score and the highest regional aggregate score, as those scores were determined by the Department effective November 23, 2015, is less than or equal to 1.0000; or (ii) its regional rank, as determined by the Department effective November 23, 2015, is Second Best.
A number of applicants satisfy both criteria, e.g., 3 Boys, McCrory's, Chestnut Hill, and Alpha (northwest region). Some,
in contrast, meet only one or the other. Sun Bulb, Treadwell, and Loop's, for example, meet (i) but not (ii). KSG, alone, meets (ii) but not (i).
The Department has been unable to come up with a credible, legally cohesive explanation for the amendments that distinguish the Emergency Rule from its predecessor. On the one hand, Christian Bax testified that KSG had persuaded the Department that "within one point" meant, for purposes of the One Point Condition, Second Best (or "second place"), and that this reading represented a reasonable interpretation of a "poorly crafted sentence" using an "unartfully crafted term," i.e., "final ranking." On the other hand, the Department argues in its Proposed Recommended Order (on page 11) that the One Point Condition's "plain language reflects the legislature's
intent that the 'second-best' applicant in each region (if otherwise qualified) be licensed as an MMTC." (Emphasis added). Logically, of course, the One Point Condition cannot be both "poorly crafted" (i.e., ambiguous) and written in "plain language" (i.e., unambiguous); legally, it must be one or the other. Put another way, the One Point Condition either must be construed, which entails a legal analysis known as statutory interpretation that is governed by well-known canons of construction and results in a legal ruling declaring the meaning of the ambiguous terms, or it must be applied according to its
plain language, if (as a matter of law) it is found to be unambiguous.
Obviously, as well, the One Point Condition, whether straightforward or ambiguous, cannot mean both within one point and within one place, since these are completely different statuses.19/ If the statute is clear and unambiguous, only one of the alternatives can be correct; if ambiguous, either might be permissible, but not both simultaneously.
By adopting the Emergency Rule, the Department took a position in direct conflict with the notion that the One Point Condition is clear and unambiguous; its reinterpretation of the statute is consistent only with the notion that the statute is ambiguous, and its present attempt to disown that necessarily implicit conclusion is rejected. The irony is that the Department surrendered the high ground of statutory unambiguity, which it initially occupied and stoutly defended, to take up an indefensible position, where, instead of choosing between two arguably permissible, but mutually exclusive, interpretations, as required, it would adopt both interpretations. The only reasonable inference the undersigned can draw from the Department's bizarre maneuver is that the Emergency Rule is not the product of high-minded policy making but rather a litigation tactic, which the Department employed as a necessary step to resolve the multiple disputes then pending between it and KSG.
The Emergency Rule was adopted to adjudicate the KSG disputes in KSG's favor, supplanting the original rule that was adopted to adjudicate the same disputes in the Department's favor.
THE DENIAL OF NATURE'S WAY'S APPLICATION FOR LICENSURE AS AN MMTC
On January 17, 2018——90 days after Nature's Way submitted its request for MMTC registration——the Department issued a letter denying Nature's Way's application ("Denial Letter"). In the Denial Letter, the Department determined that Nature's Way did not have a pending challenge to the denial of its DO licensure application as of January 1, 2017, and that it "did not have a final score within one point of the highest scoring applicant in its region." As a result, the Department determined it was unnecessary to make any findings as to Nature's Way's demonstration and documentation of its ability to cultivate within 30 days of registration, as required by law. With respect to the "within-one-point" determination, the Department's Denial Letter stated:
The highest-scoring entity in the Southeast region, Costa Nursery Farms, LLC, received a final aggregate score of 4.4000 and a regional rank of 5. Nature's Way received a final aggregate score of 2.8833 and a regional rank of 2. To implement section 381.986(8)(a)2.a., Florida Statutes, the Department adopted Emergency Rule 64ER17-7. This emergency rule states that "within one point" means for the aggregate score under
. . . 'Final Rank' one integer (i.e., whole, non-rounded number) carried out to four
decimal points (i.e., 1.0000) or for the regional rank under . . . 'Regional Rank' one whole number difference, by subtracting an applicant's final ranking from the highest final ranking in the region for which the applicant applied.
Nature's Way was not within one point of Costa Nursery Farms, LLC, either under the "Final Rank" or the "Regional Rank."
The Department also asserted that, because Nature's Way had not challenged the Department's November 2015 denial of its DO application, Nature's Way had "thereby waiv[ed] any right to challenge the Department's prior actions or decisions, including the final scoring."
THE INVALIDITY OF THE EMERGENCY RULE AND THE VIOLATIONS OF SECTION 120.54
Emergency Rule 64ER17-7(1)(b), (c), and (d) has been declared to be an invalid exercise of delegated legislative authority. See Nature's Way Nursery of Miami, Inc. v. Dep't of Health, DOAH Case Nos. 17-5801RE & 18-0720RU (Fla. DOAH June 15,
2018)(the "Rule Challenge").
It has been determined, as well, in the Rule Challenge, that the Deemed Points Policy and the Four Decimal Policy, which the Department would use as authoritative rules of decision in determining Nature's Way's substantial interests in obtaining an MMTC license, are unadopted rules whose enforcement violates section 120.54(1)(a).
A PREVIEW OF THE STATUTORY INTERPRETATION
Deciding whether a statute is ambiguous or not, and, when necessary, interpreting an ambiguous statute, are questions of law. As such, these matters will be addressed in greater detail further down, in the Conclusions of Law. These legal conclusions, however, shape the universe of material facts. So that the reader will know why the upcoming findings of fact are necessary and relevant, the undersigned will give a quick peek, here, at his conclusions regarding the One Point Condition.
The One Point Condition is ambiguous as a matter of law. It is subject to two reasonable, but mutually exclusive, interpretations, both of which, as mentioned, the Department has embraced——simultaneously——in the Emergency Rule. One of these interpretations, however, is clearly superior, namely that the legislature used the term "final ranking" idiosyncratically as a synonym for "aggregate score." This, in fact, is how the Department initially read the statute, pre-litigation, and how the Department implemented the statute, in the absence of controversy, when it licensed Sun Bulb. The other construction, which requires that "final ranking" be understood as "regional rank," is (just barely) within the range of permissible interpretations; being at best plausible, however, this inferior interpretation is rejected in favor of the other, much better and more natural reading of the statute.
The One Point Condition does not implicitly "incorporate" the Score Card, which is not even mentioned therein, or otherwise "validate" the aggregate scores. Nor does the statute purport to adjudicate disputes over aggregate scores. While it is possible that some, many, or all of the legislators who supported the Medical Marijuana Law might have believed that the aggregate scores were adjudicated facts (and thus incontestable), such beliefs, however sincerely held, were incorrect and are irrelevant in any event. The aggregate scores, as previously found, were not, in fact, ever adjudicated with finality, and the legislature is not in the business of adjudicating disputes at the party-vs.-party level. The legislature, as it must, left the work of authoritatively resolving disputes of fact between parties about particular aggregate scores to the branches of government having the power to adjudicate, namely the judiciary and, when authorized, the executive.
Finally, the phrase "within one point" was clearly intended to reference one interval data point. That is, the legislature plainly intended that a one-point difference between any two applicants would be the same as a one-point difference between any other two applicants. The obvious goal was to deem licensable any applicant who was, in terms of comparative quality, not more than one-point inferior to (i.e., whose
proximity on the quality scale was not farther than one point from) the Best applicant in its region——and that is an interval statement. A quantitative, one-point difference in quality (or whatever the relevant value happens to be) between two items cannot be determined unless the quality (or other relevant value) of the two items is expressed in interval data, using numbers that hold quantitative content.
DETERMINING THE INTERVAL DATA POINT DIFFERENCE
As discussed above, the Department committed a gross conceptual error when it decided to treat ordinal data as interval data under its Interval Coding and Deemed Points Policies. Sadly, there is no way to fix this problem retroactively; no formula exists for converting or translating non-metric data, such as rankings (which, for the most part, cannot meaningfully be manipulated mathematically), into quantitative data. Further, the defect in the Department's "scoring" process has deprived us of essential information, namely, actual measurements.
The upshot is that the question of whether Nature's Way's aggregate score is within one point of Costa's score must be answered without having a quantifiable score for either applicant that can be subtracted from the other's. The unattractive options are either to accept the Department's impossibly defective aggregate scores at face value and render a
fiat that cannot be defended as a matter of logic and reason, or instead to examine the mere shadows of scores that are the Ordinals, squinting to see anything that might permit at least a shape of the nonexistent quantitative variables to be reasonably imagined. As the first option is foreign to legal reasoning, not to mention a deformation of the administrative remedy that is the formal hearing under sections 120.569 and 120.57, the undersigned has no choice but to deduce a reasonable approximation of the unknowable interval data by adjusting the ordinal data as best anyone can, keeping in mind that the fault for the insufficiency of the available evidence belongs exclusively to the Department.
A Second Look at the Department's Scoring Methodology
The Department's scoring methodology was described above. Nevertheless, for purposes of analyzing the available ordinal data to tease out a reasonable approximation of usable interval data, so that we can meaningfully subtract Nature's Way's quantified score from Costa' quantified score, the undersigned proposes that the way the Department arrived at its aggregate scores be reexamined.
It will be recalled that each applicant received
14 Ordinals from each reviewer, i.e., one Ordinal per Domain.
These will be referred to as Domanial Ordinals. Thus, each applicant received, collectively, 12 Domanial Ordinals apiece
for the Main Topics of Cultivation, Processing, and Dispensing; and three Domanial Ordinals apiece for the Main Topics of Medical Director and Financials, for a total of 42 Domanial Ordinals. These five sets of Domanial Ordinals will be referred to generally as Arrays, and specifically as the Cultivation Array, the Processing Array, the Dispensing Array, the MD Array, and the Financials Array. Domanial Ordinals that have been sorted by Array will be referred to, hereafter, as Topical Ordinals. So, for example, the Cultivation Array comprises
12 Topical Ordinals per applicant. A table showing the Arrays of the southeast region applicants is attached as Appendix A.
Keeping our attention on the Cultivation Array, observe that if we divide the sum of the 12 Topical Ordinals therein by 12, we will have calculated the mean (or average) of these Topical Ordinals. This value will be referred to as the Mean Topical Ordinal or "MTO." For each applicant, we can find five MTOs, one apiece for the five Main Topics. So, each applicant has a Cultivation MTO, a Processing MTO, and so forth.
As discussed, each Main Topic was assigned a weight, e.g., 30% for Cultivation, 20% for Financials. These five weights will be referred to generally as Topical Weights, and specifically as the Cultivation Topical Weight, the Processing Topical Weight, etc.
If we reduce, say, the Cultivation MTO to its associated Cultivation Topical Weight (in other words, take 30% of the Cultivation MTO), we will have produced the weighted MTO for the Main Topic of Cultivation. For each applicant, we can find five weighted MTOs ("WMTO"), which will be called specifically the Cultivation WMTO, the Processing WMTO, etc.
The sum of each applicant's five WMTOs equals what the Department calls the applicant's aggregate score or final rank. In other words, in the Department's scoring methodology, an MTO is functionally a "Topical raw score" and a WMTO is an "adjusted Topical score" or, more simply, a "Topical subtotal." Thus, we can say, alternatively, that the sum of an applicant's five Topical subtotals equals its DOH-assigned aggregate score.
For those in a hurry, an applicant's WMTOs (or Topical subtotals) can be computed quickly by dividing the sum of the Topical Ordinals in each Array by the respective divisors shown in the following table:
Dividend | Divisor | Quotient | |||||
Sum of the Topical Ordinals in the CULTIVATION Array | ÷ | 40 | ═ | Cultivation | WMTO | ||
Sum of the Topical Ordinals in the PROCESSING Array | ÷ | 40 | ═ | Processing | WMTO | ||
Sum of the Topical Ordinals in the DISPENSING Array | ÷ | 80 | ═ | Dispensing | WMTO | ||
Sum of the Ordinals in | Topical the MD | Array | ÷ | 60 | ═ | MD WMTO | |
Sum of the Topical Ordinals in the FINANCIALS Array | ÷ | 15 | ═ | Financials | WMTO | ||
To advance the discussion, it is necessary to introduce some additional concepts. We have become familiar with the Ordinal, i.e., a number that the Department assigned to code a particular rank (5, 4, 3, 2, or 1).20/ From now on, the symbol Ο will be used to represent the value of an Ordinal as a variable.
There is another value, which we can imagine as a concept, namely the actual measurement or observation, which, as a variable, we will call x. For our purposes, x is the value that a Reviewer would have reported if he or she had been asked to quantify (to the fourth decimal place) the amount of an applicant's suitability vis-à-vis the attribute in view on a scale of 1.0000 to 5.0000, with 5.0000 being "ideal" and 1.0000 meaning, roughly, "serviceable." This value, x, is a theoretical construct only because no Reviewer actually made any such measurements; such measurements, however, could have been made, had the Reviewers been required to do so. Indeed, some vague idea, at least, of x must have been in each Reviewer's mind every time he or she ranked the applicants, or else there would have been no grounds for the rankings. Simply put, a particular value x can be supposed to stand behind every Topical Ordinal because every Topical Ordinal is a function of x. Unfortunately, we do not know x for any Topical Ordinal.
Next, there is the true value of x, for which we will give the symbol μ. This is a purely theoretical notion because it represents the value that would be obtained by a perfect measurement, and there is no perfect measurement of anything, certainly not of relative suitability to serve as an MMTC.21/
Finally, measurements are subject to uncertainty, which can be expressed in absolute or relative terms. The absolute uncertainty expresses the size of the range of values in which the true value is highly likely to lie. A measurement given as 150 ± 0.5 pounds tells us that the absolute uncertainty is 0.5 pounds, and that the true value is probably between 149.5 and 150.5 pounds (150 – 0.5 and 150 + 0.5). This uncertainty can be expressed as a percentage of the measured value, i.e.,
150 pounds ± .33%, because 0.5 is .33% of 150.
With that background out of the way, let's return to concept of the mean. The arithmetic mean is probably the most commonly used operation for determining the central tendency (i.e., the average or typical value) of a dataset. No doubt everyone reading this Order, on many occasions, has found the average of, say, four numbers by adding them together and dividing by 4. When dealing with interval data, the mean is interpretable because the interval is interpretable. Where the distance between 4 and 5, for example, is the same as that between 5 and 6, everyone understands that 4.5 is halfway
between 4 and 5. As long as we know that 4.5 is exactly halfway between 4 and 5, the arithmetic mean of 4 and 5 (i.e., 4.5) is interpretable.
The mean of a set of measurement results gives an estimate of the true value of the measurement, assuming there is no systematic error in the data. The greater the number of measurements, the better the estimate. Therefore, if, for example, we had in this case an Array of xs, then the mean of that dataset (x̅) would approximate μ, especially for the Cultivation, Processing, and Dispensing Arrays, which have
12 observations apiece. If the Department had used x̅ as the Topical raw score instead of the MTO, then its scoring methodology would have been free of systematic error.
But the Department did not use x̅ as the Topical raw score. In the event, it had only Arrays of Οs to work with, so when the Department calculated the mean of an Array, it got the average of a set of Ordinals (Ο̅), not x̅.
Using the mean as a measure of the central tendency of ordinal data is highly problematic, if not impermissible, because the information is not quantifiable. In this case, the Department coded the rankings with numbers, but the numbers (i.e., the Ordinals), not being units of measurement, were just shorthand for content that must be expressed verbally, not quantifiably. The Ordinals, that is, translate meaningfully
only as words, not as numbers, as can be seen in the table at paragraph 29, supra.
Because these numbers merely signify order, the distances between them have no meaning; the interval, it follows, is not interpretable. In such a situation, 4.5 does not signify a halfway point between 4 and 5. Put another way, the average of Best and Second Best is not "Second-Best-and-a- half," for the obvious reason that the notion is nonsensical. To give a real-life example, the three Topical Ordinals in Nature's Way's MD Array are 5, 3, and 2. The average of Best, Third Best, and Fourth Best is plainly not "Third-Best-and-a- third," any more than the average of Friday, Wednesday, and Tuesday is Wednesday-and-a-third.
For these reasons, statisticians and scientists ordinarily use the median or the mode to measure the central tendency of ordinal data, generally regarding the mean of such data to be invalid or uninterpretable. The median is the middle number, which is determined by arranging the data points from lowest to highest, and identifying the one having the same number of data points on either side (if the dataset contains an odd number of data points) or taking the average of the two data points in the middle (if the dataset contains an even number of data points). The mode is the most frequently occurring number. (If no number repeats, then there is no mode, and if two or more
numbers recur with the same frequency, then there are multiple modes.)
We can easily compute the medians, modes, and means of the Topical Ordinals in each of the applicants' Arrays. They are set forth in the following table.
Cultivation 30% | Processing 30% | Dispensing 15% | Medical Director | 5% | Financials 20% | |||||
Bill's | Median Mode Mean | 1 1 1.8333 | Median Mode Mean | 2 2 1.7500 | Median Mode Mean | 1 1 1.1667 | Median Mode Mean | 2 NA 2.0000 | Median Mode Mean | 1 1 1.0000 |
Costa | Median Mode Mean | 5 5 4.6667 | Median Mode Mean | 4.5 5 4.1667 | Median Mode Mean | 4 4 4.0000 | Median Mode Mean | 4 4 4.3333 | Median Mode Mean | 5 5 4.6667 |
Keith St. Germain | Median Mode Mean | 4 4 3.4167 | Median Mode Mean | 4 4 3.2500 | Median Mode Mean | 2 2 2.4167 | Median Mode Mean | 4 NA 3.6667 | Median Mode Mean | 3 3 3.3333 |
Nature's Way | Median Mode Mean | 3 4 3.0833 | Median Mode Mean | 3 3 2.5833 | Median Mode Mean | 3.5 3 3.6667 | Median Mode Mean | 3 NA 3.3333 | Median Mode Mean | 2 2 2.3333 |
Redland | Median Mode Mean | 2 2 2.2500 | Median Modes Mean | 3.5 3, 4, 5 3.4167 | Median Mode Mean | 5 5 4.1667 | Median Mode Mean | 2 NA 2.3333 | Median Mode Mean | 4 NA 3.6667 |
It so happens that the associated medians, modes, and means here are remarkably similar——and sometimes the same. The point that must be understood, however, is that the respective means, despite their appearance of exactitude when drawn out to four decimal places, tell us nothing more (if, indeed, they tell
us anything) than the medians and the modes, namely whether an applicant was typically ranked Best, Second Best, etc.
The median and mode of Costa's Cultivation Ordinals, for example, are both 5, the number which signifies "Best." This supports the conclusion that "Best" was Costa's average ranking under Cultivation. The mean of these same Ordinals, 4.6667, appears to say something more exact about Costa, but, in fact, it does not. At most, the mean of 4.6667 tells us only that Costa was typically rated "Best" in Cultivation. (Because there is no cognizable position of rank associated with the fraction 0.6667, the number 4.6667 must be rounded if it is to be interpreted.) To say that 4.6667 means that Costa outscored KSG by 1.2500 "points" in Cultivation, therefore, or that Costa was 37% more suitable than KSG, would be a serious and indefensible error, for these are, respectively, interval and ratio statements, which are never permissible to make when discussing ordinal data.
As should by now be clear, Ο̅ is a value having limited usefulness, if any, which cannot ever be understood, properly, as an estimate of μ. The Department, regrettably, treated Ο̅ as if it were the same as x̅ and, thus, a reasonable approximation of μ, making the grievous conceptual mistakes of using ordinal data to make interval-driven decisions, e.g., whom to select for licensure when the "difference" between applicants
was as infinitesimal as 0.0041 "points," as well as interval representations about the differences between applicants, such as, "Costa's aggregate score is 1.5167 points greater than Nature's Way's aggregate score." Due to this flagrant defect in the Department's analytical process, the aggregate scores which the Department generated are hopelessly infected with systematic error, even though the mathematical calculations behind the flawed scores are computationally correct.
Dr. Cornew's Solution
Any attempt to translate the Ordinals into a reasonable approximation of interval data is bound to involve a tremendous amount of inherent uncertainty. The Department, however, cannot be permitted to benefit from, or take advantage of, this uncertainty, because the uncertainty flows directly and solely from the Department's fundamental conceptual error, not from any lack or failure of proof attributable to Nature's Way.
If we want to ascertain the x behind a particular Ο, all we can say for sure is that: [(Ο – n) + 0.000n] ≤ x ≤
[(Ο + a) – 0.000a], where n represents the number of places in rank below Ο, and a symbolizes the number of places in rank above Ο. The Ordinals of 1 and 5 are partial exceptions, because 1 ≤ x ≤ 5. Thus, when Ο = 5, we can say [(Ο – n) + 0.000n] ≤ x ≤ 5, and when Ο = 1, we can say 1 ≤ x ≤ [(Ο + a) – 0.000a]. The table below should make this easier to see.
Lowest Possible Value of x | Ordinal Ο | Highest Possible Value of x |
1.0004 | 5 | 5.0000 |
1.0003 | 4 | 4.9999 |
1.0002 | 3 | 4.9998 |
1.0001 | 2 | 4.9997 |
1.0000 | 1 | 4.9996 |
As will be immediately apparent, all this tells us is that x could be, effectively, any score from 1 to 5——which ultimately tells us nothing. Accordingly, to make fruitful use of the Ordinals, we must make some assumptions, to narrow the uncertainty.
Nature's Way's expert witness, Dr. Ronald W. Cornew,22/ offers a solution that the undersigned finds to be credible and adopts. Dr. Cornew proposes (and the undersigned agrees) that, for purposes of extrapolating the scores (values of x) for a given applicant, we can assume that the Ordinals for every other applicant are true values (μ) of x, in other words, perfectly measured scores expressing interval data——a heroic assumption in the Department's favor. Under this assumption, if the subject applicant's Ordinal is the ranking of, say, 3, we shall assume that the adjacent Ordinals of the other applicants,
2 and 4, are true quantitative values. This, in turn, implies that the true value of the subject applicant's Ordinal, as a quantified score, is anywhere between 2 and 4, since all we know
about the subject applicant is that the Reviewer considered it to be, in terms of relative suitability, somewhere between the applicants ranked Fourth Best (2) and Second Best (4).
If we make the foregoing Department-friendly assumption that the other applicants' Ordinals are μ, then the following is true for the unseen x behind each of the subject applicant's Οs: [(Ο – 1) + 0.0001] ≤ x ≤ [(Ο + 1) – 0.0001]. The Ordinals of 1 and 5 are, again, partial exceptions. Thus, when Ο = 5, we can say 4.0001 ≤ x ≤ 5, and when Ο = 1, we can say 1 ≤ x ≤ 1.9999. Dr. Cornew sensibly rounds off the insignificant ten-thousandths of points, simplifying what would otherwise be tedious mathematical calculations, so that:
Lowest Possible Value of x | Ordinal Ο | Highest Possible Value of x |
4 | 5 | 5 |
3 | 4 | 5 |
2 | 3 | 4 |
1 | 2 | 3 |
1 | 1 | 2 |
We have now substantially, albeit artificially, reduced the uncertainty involved in translating Οs to xs. Our assumption allows us to say that x = Ο ± 1 except where only negative uncertainty exists (because x cannot exceed 5) and where only positive uncertainty exists (because x cannot be less than 1). It is important to keep in mind, however, that (even
with the very generous, pro-Department assumption about other applicants' "scores") the best we can do is identify the range of values within which x likely falls, meaning that the highest values and lowest values are not alternatives; rather, the extrapolated score comprises those two values and all values in between, at once.
In other words, if the narrowest statement we can reasonably make is that an applicant's score could be any value between l and h inclusive, where l and h represent the low and high endpoints of the range, then what we are actually saying is that the score is all values between l and h inclusive, because none of those values can be excluded. Thus, in consequence of the large uncertainty about the true values of x that arises from the low-information content of the data available for review, Ordinal 3, for example, translates, from ordinal data to interval data, not to a single point or value, but to a score- set, ranging from 2 to 4 inclusive.
To calculate Nature's Way's aggregate score-set using Dr. Cornew's method, it is necessary to determine both the applicant's highest possible aggregate score and its lowest possible aggregate score, for these are the endpoints of the range that constitutes the score-set. Finding the high endpoint is accomplished by adding 1 to each Topical Ordinal other
than 5, and then computing the aggregate score-set using the
mathematical operations described in paragraphs 104-105. The following WMTOs (Topical subtotals) are obtained thereby: Cultivation, 1.2250; Processing, 1.0500; Dispensing, 0.6625; MD, 0.2000; and Financials, 0.6667. The high endpoint of Nature's Way's aggregate score-set is the sum of these numbers, or 3.8042.23/
Finding the low endpoint is accomplished roughly in reverse, by subtracting 1 from each Topical Ordinal other
than 1, and then computing the aggregate score-set using the mathematical operations described in paragraphs 104 and 105. The low endpoint for Nature's Way works out to 1.9834. Nature's Way's aggregate score-set, thus, is 1.9834-3.8042.24/ This could be written, alternatively, as 2.8938 ± 0.9104 points, or
as 2.8938 ± 31.46%.
The low and high endpoints of Costa's aggregate score-set are found the same way, and they are, respectively, 3.4000 and 4.8375.25/ Costa's aggregate score-set is 3.4000- 4.8375, which could also be written as 4.1188 ± 0.7187 points or 4.1188 ± 17.45%.
We can now observe that a score of 2.4000 or more is necessary to satisfy the One Point Condition, and that any score between 2.4000 and 3.8375, inclusive, is both necessary and sufficient to satisfy the One Point Condition. We will call this range (2.4000-3.8375) the Proximity Box. A score outside
the Proximity Box on the high end, i.e., a score greater than 3.8375, meets the One Point Condition, of course; however, a score that high, being more than sufficient, is not necessary.
Nature's Way meets the One Point Condition, therefore, if any value within the range of its score-set falls within the Proximity Box. In fact, 89% of Nature's Way's score- set is inside the Proximity Box.
This is easier to see if the aggregate scores of Nature's Way and Costa are overlaid, as follows:
As is readily apparent, Nature's Way's aggregate score-set (the green bar) extends far into the Proximity Box (shaded yellow), almost to the hilt, leaving only a handle comprising 10.95% of the range exposed. Notice, further, how the opposite end of Nature's Way's score-set gets to the right of Costa's score-set, from 3.4000 to the tip of the range——coincidentally, a segment of practically the same length (10.63%) as the handle——which means that, based on the available data, we cannot exclude the possibility that Nature's Way actually outscored Costa and would
have emerged in 2015 as the highest scored applicant had the Reviewers been required to quantify the differences between applicants.
For reasons discussed below, the undersigned suspects that the Reviewers likely would not have scored Nature's Way the winner, but no matter, for that is not the issue. On the dispositive issue, the undersigned determines as a matter of ultimate fact that Nature's Way was likely (indeed, was almost certainly) within one point of Costa. In short, a preponderance of the evidence, and more, supports the finding that Nature's Way satisfies the One Point Condition.
An Alternative That Uses the Average Domanial Ordinals to Extrapolate Scores
If the Reviewers had actually scored the applicants with numbers reflecting interval data, we could have determined an average Domanial score for each applicant by dividing the sum of all of its scores by 42. This would represent the typical Domanial score for the applicant. Comparing the applicants' typical Domanial scores would reveal not only the typical Domanial ranking at the Reviewer level, but also the typical distribution of suitability——i.e., the degrees of difference, actually quantified——at the Domanial level, as measured at the Reviewer level.
We, of course, cannot find the applicants' mean Domanial scores because we lack any Domanial scores. But it might be possible to conjure Domanial scores by making some reasonable assumptions about the relative proximity of the applicants, in terms of suitability, based on the Domanial rankings.
We can, for example, calculate the typical Domanial Ordinal for each applicant, by dividing the sum of all of its Domanial Ordinals by 42. Comparing the applicants' respective mean Domanial Ordinals should give us at least a rough idea of the where each applicant was typically ranked in a typical Domain, at the Reviewer level.
This latter information might also give us an impression of how close (or separated) the applicants actually were to (or from) each other as a function of suitability. For this purpose, averaging the Domanial Ordinals is preferable to simply averaging the MTOs because the small number of Ordinals in the MD and Financials Arrays makes their MTOs subject to skew.
In the Southeast region, the mean Domanial Ordinals are as follows:
Rank | Applicant | Sum of Domanial Ordinals | Average Domanial Ordinal |
5 | Costa | 181 | 4.3095 |
4 | Redland | 136 | 3.2381 |
3 | Keith St. Germain | 130 | 3.0952 |
2 | Nature's Way | 129 | 3.0714 |
1 | Bill's | 66 | 1.5714 |
If we assume, as the Department assumes, that the mean of ordinal data is at all meaningful, we can say, based on these figures, that Costa was the consensus favorite, with an average rank of Second Best; Bill's was the least favorite by general agreement; and the others were effectively in a three- way tie for second place, each having a typical ranking of Third Best.
If we assume further, as the Department assumes, that the mean of ordinal data tells us something useful about the quantitative differences between the applicants, then we can say, based on the figures above, that the unknown scores (x) behind the Ordinals should reflect a distribution of suitability in which three of the applicants are bunched up in the center (at the peak of the Bell Curve so to speak), while the favorite and least favorite stand noticeably apart.26/
When the available data are viewed in this light, it becomes reasonable to expect that if any one of the applicants in the middle (Redland, KSG, or Nature's Way) were found to be "within one point" of Costa, then so too should the others in that group be found, since the putative consensus view of the
Reviewers was that these three applicants were effectively indistinguishable on the merits. Indeed, we should be surprised if that were not the case.
It also becomes reasonable to imagine what the interval scores might have looked like, if only impressionistically. While it is impossible to bring forth such scores except by reasonable guesswork, we could do worse than using the average Domanial Ordinals set forth above as plugs for the unknown scores. If, in other words, we assume that the following scores correspond to the respective Ordinals of rank, we can recalculate the applicants' aggregate scores, using the Reviewers' rankings.
Rank | Corresponding Score |
5 | 4.31 |
4 | 3.24 |
3 | 3.10 |
2 | 3.07 |
1 | 1.57 |
The aggregate scores which emerge from this recalculation, while admittedly not scientifically reliable, will at least paint a more accurate picture of the perceived distances between the applicants than do the Department's hopelessly flawed aggregate scores.
This exercise produces the following outcome:
Applicant | Aggregate Score | Rank |
Costa | 3.8192 | 5 |
Redland | 3.2346 | 4 |
Keith St. Germain | 3.1774 | 3 |
Nature's Way | 3.0613 | 2 |
Bill's | 2.0698 | 1 |
While the undersigned cannot find that these are likely the applicants' actual aggregate scores (for it is beyond human capacity, given the paucity of available data, to pinpoint the scores with such confidence), he can find that this table likely shows with greater clarity the quantitative differences between the applicants than anything the Department has produced.
Using the mean Domanial Ordinals to construct Domanial scores, it is determined that the quantitative difference between Costa and Nature's Way, as best this value can be ascertained, is most likely less than one point (which is sufficient to satisfy the One Point Condition), with three- quarters of a point being an informed, if unscientific, approximation of the genuine difference.
ROUNDING OFF THE SPURIOUS DIGITS
Remember that the Ordinal 5 does not mean 5 of something that has been counted but the position of 5 in a list
of five applicants that have been put in order——nothing more. Recall, too, that there is no interpretable interval between places in a ranking because the difference between 5 and 4 is not the same as that between 4 and 3, etc., and that there is no "second best-and-a-half," which means that taking the average of such numbers is a questionable operation that could easily be misleading if not properly explained.
Therefore, as discussed earlier, if the mean of ordinal data is taken, the result must be reported using only as many significant figures as are consistent with the least accurate number, which in this case is one significant figure (whose meaning is only Best, Second Best, Third Best, and so forth). The Department egregiously violated the rule against reliance upon spurious digits, i.e., numbers that lack credible meaning and impart a false sense of accuracy. The Department took advantage of meaningless fractions obtained not by measurement but by mathematical operations, thereby compounding its original error of treating ordinal data as interval data.
When the Department says that Nature's Way's aggregate score is 2.8833, it is reporting a number with five significant figures. This number implies that all five figures make sense as increments of a measurement; it implies that the Department's uncertainty about the value is around 0.0001 points——an astonishing degree of accuracy. The trouble is that
the aggregate scores, as reported without explanation, are false
and deceptive. There is no other way to put it.
The Department's reported aggregate scores cannot be rationalized or defended, either, as matters of policy or opinion. This point would be obvious if the Department were saying something more transparent, e.g., that 1 + 1 + 1 + 0 + 0
= 2.8833, for everyone would see the mistake and understand immediately that no policy can change the reality that the sum of three 1s is 3.
The falsity at issue is hidden, however, because, to generate each applicant's "aggregate score," the Department started with 42 whole numbers (of ordinal data), each of which is a value from 1 to 5. It then ran the applicant's 42 single- digit, whole number "scores" through a labyrinth of mathematical operations (addition, division, multiplication), none of which improved the accuracy or information content of the original
42 numbers, to produce "aggregate scores" such as 2.8833. This process lent itself nicely to the creation of spreadsheets and tables chocked full of seemingly precise numbers guaranteed to impress.27/
Lacking detailed knowledge (which few people have) about how the numbers were generated, a reasonable person seeing "scores" like 2.8833 points naturally regards them as having substantive value at the microscopic level of ten-thousandths of
a point——that's what numbers like that naturally say. He likely believes that these seemingly carefully calibrated measurements are very accurate; after all, results as finely-tuned as 2.8833 are powerful and persuasive when reported with authority.
But he has been fooled. The only "measurement" the Department ever took of any applicant was to rank it Best, Second Best, etc.——a "measurement" that was not, and could not have been, fractional. The reported aggregate scores are nothing but weighted averages of ordinal data, dressed up to appear to be something they are not. Remember, the smallest division on the Reviewers' "scale" (using that word loosely here) was 1 rank. No Reviewer used decimal places to evaluate any portion of any application. The aggregate scores implying precision to the ten-thousandth place were all derived from calculations using whole numbers that were code for a value judgment (Best, Second Best, etc.), not quantifiable information.
Therefore, in the reported "aggregate scores," none of the digits to the right of first (tenth place) decimal point has any meaning whatsoever; they are nothing but spurious digits introduced by calculations carried out to greater precision than the original data. The first decimal point, moreover, being immediately to the right of the one (and only) significant figure in the aggregate score, is meaningful (assuming that the
arithmetic mean of ordinal data even has interpretable meaning, which is controversial) only as an approximation of 1 (whole) rank. Because there is no meaningful fractional rank, the first decimal must be rounded off to avoid a misrepresentation of the data.
Ultimately, the only meaning that can be gleaned from the "aggregate score" of 2.8833 is that Nature's Way's typical (or mean) weighted ranking is 2.8833. Because there is no ranking equivalent to 2.8833, this number, if sense is to be made of it, must be rounded to the nearest ranking, which is 3 (because 2.8 ≈ 3), or Third Best. To report this number as if it means something more than that is to mislead. To make decisions based on the premise that 0.8833 means something other than "approximately one whole place in the ranking" is, literally, irrational——indeed, the Department's insistence that its aggregate scores represent true and meaningful quantities of interval data is equivalent, as a statement of logic, to proclaiming that 1 + 1 = 3, the only difference being that the latter statement is immediately recognizable as a delusion. An applicant could only be ranked 1, 2, 3, 4, or 5——not 2.8833
or 4.4000.
Likewise, the only meaning that can be taken from the "aggregate score" of 4.4000 is that Costa's average weighted ranking is 4.4000, a number which, for reasons discussed, to be
properly understood, must be rounded to the nearest ranking, i.e., 4. The fraction, four-tenths, representing less than half of a position in the ranking, cannot be counted as approximately one whole (additional) place (because 4.4 ≉ 5). And to treat 0.4000 as meaning four-tenths of a place better than Second Best is absurd. There is no mathematical operation in existence that can turn a number which signifies where in order something is, into one that counts how much of that thing we have.
To eliminate the false precision, the spurious digits must be rounded off, which is the established mathematical approach to dealing with numbers that contain uncertainty, as Dr. Cornew credibly confirmed. Rounding to the nearest integer value removes the meaningless figures and eliminates the overprecision manifested by those digits.
When the aggregate scores are rounded to remove the deceitful decimals, the results are: Costa, 4; Redland, KSG, and Nature's Way, 3; and Bill's, 2. These corrected "final ranks" require a corresponding adjustment of the "regional ranks" because there is a three-way tie for second place. Thus, using unspurious aggregate scores to regionally rank the applications, the positions are as follows: Costa, 5; Redland, KSG, and Nature's Way, 4; and Bill's, 1.
In sum, as yet another alternative to determining whether Nature's Way is "within one point" of Costa, the
elimination-of-spurious-digits approach shows that Nature's Way satisfies the One Point Condition.
CONCLUSIONS OF LAW
The Division of Administrative Hearings ("DOAH") has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1).
Nature's Way has standing to contest the Department's intended denial of its application, which is a substantial- interests determination involving disputed issues of material fact.
As an applicant for licensure, Nature's Way bears the ultimate burden of persuasion and must prove, by a preponderance of the evidence, that it satisfies the One Point Condition upon which its success depends. § 120.57(1)(j), Fla. Stat.; see Fla.
Dep't of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981).
The Department, however, has the burden of proving that issue preclusion bars Nature's Way from disputing the truth of the pertinent aggregate scores as quantifiable sums capable of being subtracted, one from the other, to produce a meaningful numerical difference. This is because, like res judicata, administrative finality is an affirmative defense. See, e.g., Hoke v. Ft. Lauderdale Bd. of Adjustment, 486 So. 2d 698, 699
(Fla. 4th DCA 1986)(burden of proving that issue has been
conclusively determined in prior final order lies with party taking that position); Shirley v. Shirley, 100 So. 2d 450, 452 (Fla. 2d DCA 1958)("One who invokes and relies on a defense that a former adjudication was res judicata by issues raised has the burden of proof to establish the former adjudication."). "If there is any uncertainty to the matter formerly adjudicated, the burden of showing it with sufficient certainty by the record or extrinsically is upon the party who claims the benefit of the former judgment." Coleman v. Coleman, 157 Fla. 515, 26 So. 2d 445, 520 (1946).
Section 120.60(3) provides that an applicant for licensure "shall be given written notice, personally or by mail, that the agency intends to grant or deny, or has granted or denied, the application for license. The notice must state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act," which was not the case here. The issues for hearing in a license application denial case, as between the agency and the applicant, are framed by the section 120.60(3) denial letter and the applicant's petition for hearing. See, e.g., Ft. Myers Real Estate Holdings, LLC v. Dep't of Bus. & Prof'l Reg., Div. of
Pari-Mutuel Wagering, 53 So. 3d 1158, 1162 (Fla. 1st DCA 2011).28/
Section 120.57(1)(e)1. provides that neither the agency nor an "administrative law judge may . . . base agency action that determines the substantial interests of a party on an unadopted rule or a rule that is an invalid exercise of delegated legislative authority." Accordingly, the Deemed Points Policy and the Four Decimal Policy, which are unadopted rules as determined in the Rule Challenge, and the provisions of the Emergency Rule that have been invalidated, shall not be applied as governing principles.
STATUTORY INTERPRETATION
The law governing this dispute, then, is section 381.986(8)(a)2.a. and, in particular, the One Point Condition thereof, whose relevant language, again, is: "or had a final ranking within one point of the highest final ranking in its region under former s. 381.986, Florida Statutes 2014." The parties dispute the meaning of this statute.
The general principles relating to the interpretation of statutes are well-known and ably summarized as follows:
It is well established that the construction of a statute is a question of law reviewable de novo. Dixon v. City of Jacksonville, 774 So. 2d 763, 765 (Fla. 1st DCA 2000).
Legislative intent is the polestar that guides this Court's statutory construction analysis. See State v. J.M., 824 So. 2d 105, 110 (Fla. 2002) (citation omitted). In construing a statute, th[e] Court must look to the statute's plain language. See Fla.
Dep't of Educ. v. Cooper, 858 So. 2d 394,
395 (Fla. 1st DCA 2003); Jackson County Hosp. Corp. v. Aldrich, 835 So. 2d 318, 328-
29 (Fla. 1st DCA 2002); see also State v. Rife, 789 So. 2d 288, 292 (Fla. 2001) (noting that legislative intent is determined primarily from the language of a statute). Where the language of a statute is clear and unambiguous, it must be given its plain and ordinary meaning. Cooper, 858 So. 2d at 395 (citations omitted). Where a statute is ambiguous, courts may then resort to the rules of statutory construction. BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 289 (Fla. 2003).
Bruner v. GC-GW, Inc., 880 So. 2d 1244, 1246-47 (Fla. 1st
DCA 2004).
Florida courts tend to defer to agency interpretations of statutes they administer, and of rules they have adopted, pursuant to the doctrine of judicial deference. This court-made doctrine does not apply to ALJs, and there is no statutory equivalent in the APA, which——quite the opposite—— requires ALJs to conduct de novo hearings. See § 120.57(1)(k),
Fla. Stat. Therefore, in using his own best judgment to interpret the statute independently and impartially as a neutral decision-maker should, the undersigned considers only the logical persuasive force of the parties' legal arguments about the meaning of section 381.986(8), without regard for the source thereof, so that neither side enjoys a special advantage in this forum. See generally, John G. Van Laningham, When Courts Bow to
Bureaucrats: How Florida's Deference Doctrine Lets Agencies Say
What the Law Is, 45 Fla. St. U. L. Rev. Online 1, 26-30
(2018)(available at http://www.fsulawreview.com/online/).
The first order of business is to decide whether, as a matter of law, the statute at issue is ambiguous because if it is not, that is, if the relevant provisions are "susceptible to only one reasonable interpretation, the[n the] plain language of the statute controls," and no statutory construction is necessary. Fla. Dep't of High. Saf. & Motor Veh. v. Hernandez,
74 So. 3d 1070, 1074 (Fla. 5th DCA 2011). "Only where the plain language of a statute is ambiguous——where a reasonable person could find two different meanings leading to two different outcomes——will th[e] Court resort to the tools of statutory construction." Fla. Dep't of Transp. v. Clipper Bay Invs., LLC, 160 So. 3d 858, 862 (Fla. 2015).
The One Point Condition is ambiguous because it confuses the concepts of ranking and scoring or, more precisely, makes an interval statement ("within one point") involving a comparison between two pieces of ordinal data, namely "rankings," which literally makes no sense. This ambiguity would be immediately apparent if the subject matter were more familiar. In ordinary discourse, for example, if someone told us that the silver medalist in women's figure skating had a final ranking within one point of the gold medalist's ranking, we would be uncertain about the speaker's meaning because we
know that the fact of a skater's placing second in rank behind the skater with the highest final score (and winning the silver medal) tells us nothing about how many points either competitor scored, much less reveals the difference between the competitors' point totals. Was the speaker referring to a one- point difference in the athletes' scores, we therefore would wonder, or a one-place difference in their rankings? This is the semantic problem with the One Point Condition.
The first question arising from the statutory ambiguity that needs an answer, therefore, is whether the proximity comparison should be between highest rank/next highest rank or the highest score/closest scores. This is an either/or question. The One Point Condition is clear that whichever comparison is intended, only one of the two potential pairings is authorized. Either a second-place finish or a quantifiable score of within one point of the highest quantifiable score might meet the condition, depending on how the statute's ambiguity in this regard is construed, but not both. The Department's construction of the statute, as reflected in the invalid Emergency Rule, enlarges the statute by putting in place a pathway to licensure that the legislature did not approve, and is, therefore, clearly erroneous. Simply put, the ambiguity forces a choice.
As between the options, the undersigned considers the "second place" reading to be markedly inferior because the legislature easily could have said, simply, "was ranked second in its region" or was the "next best" applicant; one presumes the legislature would have adopted language to such effect if this were its intended meaning. It is a bit of a stretch, moreover, to accept the phrase "within one point of" as a description of second place——so awkward and unnatural a means of expressing such a common idea, it would be. Nevertheless, although this is a stilted construction, it falls within the range of permissible interpretations; it is not, however, the best interpretation.
The legislature's use of the term one point implies that it had in mind a measured quantity. The phrase "within one point" implies that a mathematical comparison is required, involving the subtraction of the applicant's "final ranking" from the "highest final ranking." Such an operation would not make sense unless the interval between the "rankings" were interpretable, which implies, despite the literal meaning of the term, that the legislature assumed the "final rankings" to which it referred constituted interval data, not ordinal data. (To repeat a point that cannot be stated enough, it is impossible to determine a quantifiable "point" difference between the rankings of Best and, e.g., Fourth Best.)
This leads the undersigned to conclude that the legislature intended the term "final ranking" to have the same meaning as "aggregate score," so that an applicant whose aggregate score is within one point of the highest aggregate score in its region meets the One Point Condition, regardless of whether that applicant was ranked Second, Third, Fourth, or Fifth Best. (In theory, of course, all of the applicants from top to bottom might have had aggregate scores falling within a one-point interval.)
That this represents the best interpretation of the ambiguous statute is evident to the undersigned from the statutory language, considered in its entirety and taking account of its purposes. Confirmation of this interpretation, although unnecessary, is found in the legislative staff analysis of the Medical Marijuana Law, which as the Department has pointed out reproduces the Score Card with its "final rank" and "regional rank" columns.29/ This tells the undersigned that the legislature, having been made aware that the Department referred to the aggregate scores, idiosyncratically, as "final ranks," decided to follow suit and use the same imprecise terminology.
The Department contends that the legislature, in its use of the term "final ranking," intended not only to denote the concept of the "aggregate score" as a historical reality, but also to "incorporate" and "validate" the numerical values listed
in the "final rank" column of the Score Card. In other words, the Department takes the position that the legislature enacted into law the Department's version of history, so that no applicant is entitled to dispute whether, in fact, it had an aggregate score within one point of the highest aggregate score. This interpretation, which uses the statute's retroactive nature to blur the distinction between legislating and adjudicating, is superficially persuasive, not deeply rooted. Like many plausible but incorrect positions, however, this one requires some effortful thought to untangle.
The Medical Marijuana Law has components such as the One Point Condition that have retroactive effect, in that they apply to pre-enactment events. This is atypical but not unheard of. Subject to constitutional restrictions that are not currently at issue, the legislature may enact retroactive statutes. What is a tad unusual about this statute is that the One Point Condition operates entirely on a discrete and nonrecurring set of historical circumstances involving a small number of identifiable parties, which means that the Medical Marijuana Law was, at least in parts, more narrowly focused than most general laws. This creates a temptation to infer that the legislature specifically picked identifiable winners and losers.
There is a difference, however, between enacting a statute or rule that operates retroactively on known past events
(a legislative or quasi-legislative power), and resolving disputes of fact about those events for purposes of applying the law to determine particular parties' personal rights, liabilities, and interests thereunder (a judicial or quasi- judicial power). The Department's mistake is to conflate these distinct powers, which leads it to believe, incorrectly, that the legislature not only adopted a law that applies to pre- enactment events, but also adjudicated the past events to conform to the Department's interpretation of the relevant facts. This latter is not what the legislature does, nor is it within the legislature's power to accomplish.
To satisfy the One Point Condition, an applicant had to have applied in 2015 for a DO license and received a final ranking (aggregate score) from the Department. To have had an aggregate score, it was necessary that an applicant's application have been reviewed, evaluated, and scored30/ by the three Reviewers, which must have occurred, if at all, before the enactment of the Medical Marijuana Law. To the extent that fulfillment of the One Point Condition depends upon the work of the Reviewers, the statute operates retroactively, in that it imposes new legal significance on the Reviewers' completed work.
Consequently, an applicant seeking licensure under the One Point Condition is not entitled to a de novo hearing in which its DO application could be re-reviewed, re-evaluated, and
re-scored. Such relief, upon timely request, should have been available to disappointed applicants who received a notice of intent to deny in November 2015. The statute is clear that the reviewing, evaluating, and scoring (i.e., the Reviewers' work) is history, and it does not contemplate or authorize a repeat of this work.
The One Point Condition is not self-executing, however. It clearly envisions that a nursery seeking licensure thereunder must apply to the Department, where a determination will be made concerning whether, under the present circumstances, the applicant satisfies the relevant criteria for licensure as an MMTC. Whether the applicant, in fact, had an aggregate score is unlikely ever to be disputed——and is not disputed in this case. Whether the aggregate score it had, according to the Department, means that the nursery was within one point of the highest scored applicant is a question that, if raised as here, must be determined through the process of adjudication. The statute frames the issues for the parties, but it does not determine the issues as between them.
The Department imagines that, by virtue of the Medical Marijuana Law, the aggregate scores, which it calculated in 2015, are now true under any interpretation and, therefore, can be used for any purpose in implementing the One Point Condition. In this regard, the Department conflates existence,
meaning, and truth, which are actually separate and distinct properties. What the Department fails to grasp is that the historical, Department-assigned aggregate scores (whose existence is undisputed) are statements about the applicants, which (i) are ambiguous and (ii) make assertions, the truth of which may be disputed. Nothing in the Medical Marijuana Law purports to interpret the historical aggregates scores or deem truthful any matter asserted in them; it merely acknowledges their existence.
As has been discussed above at length, there is no dispute that the scores of 2.8833 and 4.4000 exist in fact as values the Department assigned to Nature's Way and Costa, respectively, in 2015. But these scores, to review, are ambiguous inasmuch as they can be construed to state either that
(i) in the Department's opinion, Costa is more qualified than Nature's Way to be the southeast region's DO or (ii) Costa is 1.5167 points better than Nature's Way. The first statement is not currently contestable, having been decided by final agency action in 2015——but then, no one is disputing this particular meaning of the aggregate scores, which is irrelevant to the instant case in any event. It is the second meaning upon which the Department currently relies, and the truth of the matters asserted therein is both disputable and contested.
As we have seen, the statement that Costa is 1.5167 (or any number) of points better than Nature's Way is a statement of fact, not opinion, and more precisely is an interval statement of fact, which is true only if the two numerical values being compared (4.4000 and 2.8833) constitute true (i.e., accurate) quantifiable information. Nothing in the Medical Marijuana Law purports to declare the historical, Department-assigned aggregate scores to be interval data, much less to adjudge the data to be true and accurate. These are matters the statue rightly and necessarily leaves for adjudication.
No statute, even one having retroactive operation such as the Medical Marijuana Law, should be construed as having adjudicated, as between identifiable parties, the truth of material historical facts, unless such an interpretation is unavoidable. This is because, first, whenever possible, a statute must be given an interpretation that avoids calling into question its constitutionality. See, e.g., Tyne v. Time Warner Entm't Co., 901 So. 2d 802, 810 (Fla. 2001); Del Valle v.
State, 80 So. 3d 999, 1012 (Fla. 2011)(statute should not be given a meaning that would undermine its constitutional validity, where another reading is possible).
Second, the authoritative resolution of genuine disputes of material fact between parties to a case or
controversy is not a legislative power vested in the legislature, but a judicial or quasi-judicial power, which appertains to the judicial or executive branch pursuant to Article V, Section 1, of the Florida Constitution.31/ There are four characteristics of a quasi-judicial decision, which distinguish the adjudicative power from the legislative power:
(1) [Q]uasi-judicial action results in the application of a general rule of policy, whereas legislative action formulates policy; (2) a quasi-judicial decision has an impact on a limited number of persons or property owners and on identifiable parties and interests, while a legislative action is open-ended and affects a broad class of individuals or situations; (3) a quasi- judicial decision is contingent on facts arrived at from distinct alternatives presented at a hearing, while a legislative action requires no basis in fact finding at a hearing; and (4) a "quasi-judicial act determines the rules of law applicable, and the rights affected by them, in relation to past transactions," while a legislative act prescribes what the rule or requirement shall be with respect to future acts.
D.R. Horton, Inc. v. Peyton, 959 So. 2d 390, 398-99 (Fla. 1st
DCA 2007)(quoting Bd. of Cnty. Comm'rs v. Snyder, 627 So. 2d 469, 474 (Fla. 1993)). As the foregoing compare-and-contrast analysis makes clear, the question of whether the aggregate score that Nature's Way (or any 2015 applicant) had is a truthful assertion of quantifiable fact, which signifies that the nursery was or was not within one point of the highest
scored applicant, cannot be decided by legislative action; it clearly requires quasi-judicial decision-making.
Third, "although the legislature has the power to create administrative agencies with quasi-judicial power," Broward Cnty. v. La Rosa, 505 So. 2d 422, 423 (Fla. 1987), it
"cannot take actions that would undermine the independence of Florida's judicial and quasi-judicial offices" without "violat[ing] the doctrine of separation of powers." Off. of
State Atty. v. Parrotino, 628 So. 2d 1097, 1099 (Fla. 1993). There is no question that the legislature has granted ALJs and agency heads in the executive branch "quasi-judicial power in matters connected with the functions of their offices," making them "administrative officers" within the meaning of Article V, section 1, of the Florida Constitution. See Ring Power Corp. v.
Campbell, 697 So. 2d 203, 206 (Fla. 1st DCA 1997). Thus, if the legislature were to enact a statute that decided adjudicative facts and thereby determined the substantial interests of identifiable parties, the action would undermine the independence of the state's administrative officers holding the quasi-judicial power to make such decisions, in violation of the separation of powers provision in Article II, section 3, of the Florida Constitution.
Fourth, and finally, to keep the Medical Marijuana Law as far from constitutional infirmity as reasonably possible,
the One Point Provision should not be given an interpretation that would raise a genuine separation-of-powers concern.
Therefore, the undersigned must reject the Department's argument that the One Point Condition incorporates and validates the historical, Department-assigned aggregate scores, thereby at once prejudging and foreclosing disputes about whether the scores are true statements of quantifiable fact respecting the 2015 DO applicants. It is concluded, instead, that the One Point Condition necessarily permits disputes about whether the Department-assigned aggregate scores are true statements of quantifiable fact respecting the 2015 DO applicants——making such disputes possible for the first time, actually——and leaves the resolution thereof to the branches of government possessing judicial and quasi-judicial power.
The duty to avoid statutory interpretations that might render the statute unconstitutional requires that the Department's "legislative validation" argument be rejected for a an additional, independent reason, i.e., to steer clear of Article III, section 10, of the Florida Constitution, which forbids the enactment of a special law as if it were a general law.
As the Department reads section 381.986(8)(a)2.a., the legislature effectively adopted and validated the Score Card (by implicit reference), making it law. If this were true, then
the legislature would have granted the benefit of licensure under the One Point Provision to specific nurseries identified in the law by name. The statute might as well have directed the Department to license as an MMTC any nursery named 3 Boys, McCrory's, Chestnut Hill, Alpha, Sun Bulb, Treadwell, or Loop's, which meets the requirements of section 381.986 and which is cultivation ready. Under the Department's interpretation, in other words, the statute does not generically classify as potentially licensable a subset of the 2015 applicants, whose number (though small) has future growth potential, but singles out several nurseries, and only those nurseries, as ever being eligible for immediate licensure pursuant to the One Point Condition.
Under the Department's interpretation, therefore, the statute bears a suspicious resemblance to a special law. A "special law is one relating to, or designed to operate upon, particular persons or things . . . , or one that purports to operate upon classified persons or things when classification is not permissible or the classification adopted is illegal." State ex. rel. Landis v. Harris, 163 So. 2d 237, 240 (Fla. 1935). This is in contrast to a general law, which "operates uniformly throughout the State, or uniformly upon subjects as they may exist throughout the State, or uniformly within permissible classifications by population of counties or
otherwise, or is a law relating to a State function or instrumentality." Id.
That a statute benefits a small number of persons or entities is not sufficient, without more, to deem it a special law; what matters is "whether the statute ha[s] the potential to apply to other [person or entities] in the future." R.J. Reynolds Tobacco Co. v. Hall, 67 So. 3d 1084, 1091 (Fla. 1st DCA
2011). A statutory classification that is drawn so tightly around its original members that no one else will be able to satisfy the conditions of inclusion within the classification at some future point in time is in danger of being found arbitrary and impermissible. City of Miami v. McGrath, 824 So. 2d 143,
150 (Fla. 2002). Statutory language that identifies the objects upon which the law operates, instead of classifying them, constitutes an impermissible "descriptive technique," which renders the statute invalid. Id.
In sum, if the One Point Condition were construed, as the Department urges, as having adopted the Score Card as a means of identifying the only nurseries that can satisfy the "within-one-point" criterion, then this portion of the statute would be in serious jeopardy of being declared a special law. Because Senate Bill 8-A was passed as a general law, see chapter 2017-232, Laws of Florida, a declaration that the One Point Condition amounts to a special law would spell constitutional
doom for section 381.986(8)(a)2.a. Art. III, § 10, Fla. Const. (prohibiting enactment of a special law unless notice of intent to pass the law was published in advance or, alternatively, the law would take effect only upon approval by the affected voters in a referendum).
To avoid undermining the constitutionality of section 381.986(8)(a)2.a., therefore, the statute should not be construed as having enacted into law the Score Card and "validated" the Department-assigned aggregate scores therein, thereby establishing, as a matter of law, their truth as quantifiable facts. The undersigned accordingly rejects the
Department's interpretation of the One Point Condition and holds that the term "final ranking" refers to the Department-computed aggregate scores——not as applicant-specific, inerrant, and incontestable interval statements of fact, however, but as historical remnants of the 2015 application cycle.
ADMINISTRATIVE FINALITY
The Department argues that Nature's Way waived the right to contest its aggregate score of 2.8833 on any grounds because it did not timely request a hearing in 2015 after receiving the notice of intent to deny its DO application. As mentioned earlier, the waiver argument is technically off point, because Nature's Way is not seeking in this case to contest the denial of its DO application. It is contesting the intended
denial of its MMTC application, which is a separate agency action that Nature's Way is entitled to have determined through these formal administrative proceedings. Waiver, per se, is not a bar to the relief Nature's Way currently seeks.
To a limited extent, the Department is correct. The intended denial of Nature's Way's DO application became final agency action without a hearing because Nature's Way waived the right to have its substantial interests in that matter determined in a disputed-fact proceeding. The final agency action of 2015, in turn, bars Nature's Way from a hearing on the same agency action, namely the denial of its DO application. This claim preclusion is due, however, to administrative finality, not waiver.
Administrative finality, a doctrine which is analogous to res judicata, holds that "orders of administrative agencies must eventually pass out of the agency's control and become final and no longer subject to change or modification." Austin Tupler Trucking v. Hawkins, 377 So. 2d 679, 681 (Fla. 1979); Delray Med. Ctr. v. Ag. for Health Care Admin., 5 So. 3d
26, 29 (Fla. 4th DCA 2009)("In the field of administrative law, the counterpart to res judicata is administrative finality."); see also Reedy Creek Utils. Co. v. Fla. Pub. Serv. Comm'n, 418 So. 2d 249, 254 (Fla. 1982)("An underlying purpose of the
doctrine of [administrative] finality is to protect those who rely on a judgment or ruling.").
The type of administrative finality (claim preclusion) that bars a new proceeding on a prior final agency action is not applicable here because a new agency action, which requires proof of different essential facts, is in progress; we have, in short, a different claim. What might apply is the kind of finality known at common law as collateral estoppel, estoppel by judgment, or issue preclusion. Collateral estoppel operates to preclude parties from litigating issues ("that is to say points and questions") that were actually adjudicated with finality in a previous suit, even though the earlier case involved a different cause of action. See Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d 1140, 1142 n.4 (Fla. 2d DCA
2001). Administrative finality comprises both the doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion). Id.32/; see also, Felder v. Dep't of Mgmt. Servs.,
993 So. 2d 1031, 1035 (Fla. 1st DCA 2008)("[A]dministrative finality is based on principles similar to those supporting collateral estoppel and res judicata, except that its emphasis is on litigants' need to have confidence in the authority of an administrative order.").
The doctrine of collateral estoppel "bars relitigation of an issue when the following five factors are met":
(1) an identical issue must have been presented in the prior proceeding; (2) the issue must have been a critical and necessary part of the prior determination;
(3) there must have been a full and fair opportunity to litigate that issue; (4) the parties in the two proceedings must be identical; and (5) the issue[] must have been actually litigated.
Felder, 993 So. 2d at 1034-35.
Set forth above are the undersigned's extensive findings of fact on the question of whether it was critical and necessary to the agency actions on Nature's Way and Costa's DO applications that their respective aggregate scores of 2.8833 and 4.4000 have been adjudged true as quantifiable facts, so that it would be correct to make the interval statement that Costa outscored Nature's Way by 1.5167 points. The Department, needless to say, has failed to carry its burden of proving an affirmative answer to this question, for the undersigned has found, in short, that the aggregate scores did not need to be true in this fashion to support the final agency action on Nature's Way's DO application. Because this factor is not met, Nature's Way is not precluded from contesting the truth of the aggregate scores for purposes of establishing its compliance with the One Point Condition.
Further, the Department failed to prove that Nature's Way had a full and fair opportunity, in 2015, to litigate the issue of whether the interval statement that Costa is 1.5167 points more suitable than Nature's Way is a true factual assertion. In fact, Nature's Way could not have had a full and fair opportunity to litigate that precise issue in 2015, because it would not have been relevant to determining which of the five applications for the southeast region's DO license was the most dependable and most qualified. For this additional reason, collateral estoppel does not apply here.
Nature's Way invokes the "changed circumstances" exception as grounds for escaping administrative finality. It is well established that "Florida courts do not apply the doctrine of administrative finality when there has been a significant change of circumstances or there is a demonstrated public interest." Delray Med. Ctr. v. Ag. for Health Care
Admin., 5 So. 3d 26, 29 (Fla. 4th DCA 2009). This exception is
implicated most clearly, and typically applied, in situations involving a revised or updated application of some sort——such as for rezoning,33/ a certificate of need,34/ licensure,35/ or a permit36/——following an earlier failure to obtain agency approval. "Florida favors administrative hearings to develop and flesh out the differences between successive administrative applications." Id. at 30.
Here, of course, there has been a significant change of circumstances: the enactment of the Medical Marijuana Law, which includes the new, "within-one-point" road to licensure. The new statute shifts the focus from a substantive comparison of the relative suitability of the applicants to determine which is most qualified, to a mathematical comparison of numbers, i.e., the aggregate scores, attached to the applicants. Even if the truth of the scores as quantifiable data could have been fully and fairly litigated in a disputed-fact hearing arising from the 2015 application cycle, which the undersigned does not for one moment believe, at best any such disputation of the aggregate scores would have been a means to the end of establishing the ultimate fact at issue, whether the subject applicant is the nursery most qualified for licensure as a DO. Now, in contrast, the truth of the scores as quantifiable data is the end because no mathematical comparison of nonquantifiable data is possible.
Thus, the new law dramatically raises the incentive to challenge the aggregate scores qua quantifiable data, from negligible return (at best) to jackpot, if successful. This constitutes a significant change of circumstances for purposes of deciding whether to apply administrative finality. For reasons stated, the undersigned has concluded that finality does not operate as a bar to Nature's Way in this proceeding, which
means that it is unnecessary to rely upon changed conditions to circumvent the otherwise preclusive effect of a prior final agency action. Because circumstances have, in fact, changed substantially, however, administrative finality would not be a bar to Nature's Way in any event.
Accordingly there is no legal barrier to Nature's Way's disputing any fact surrounding the reviewing, evaluating, and scoring of its application in 2015 that is relevant to determining its substantial interests in obtaining an MMTC license under the One Point Condition. The only fact that Nature's Way is barred from contesting due to administrative finality is that Costa was the most dependable, most qualified nursery-applicant from the southeast region (and, conversely, that Nature's way was not).
MISCELLANY
In the end, what both limits and shapes the factual disputes in this case is not collateral estoppel, or waiver, but the practical reality that the Reviewers' opinions of the nurseries' relative suitability, which were formed during the evaluation of the DO-license applicants in 2015, are provable only with the Ordinals. In deciding the ultimate, "within-one- point" issue, there is no choice but to work with the low- information Ordinals.
The Ordinals are not adjudicated facts, nor, as we have seen, are they quantitative data. They are just symbols that the Department required the Reviewers to assign, pursuant to the Interval Coding Policy, to express their unquantified (and unquantifiable) opinions regarding positions in rank such as Best, and Second Best, etc. Because they are not interval data, the Ordinals cannot be mathematically manipulated without first being translated into quantifiable facts resembling interval data. Nature's Way offered substantial competent evidence upon which findings to this effect could be made.
In determining a reasonable facsimile of quantifiable data from the available non-metric proof, to make a finding as to whether Nature's Way was likely within one point of Costa, rule 64-4.002 was followed. As mentioned previously, the invalid provisions of the Emergency Rule were not followed, and the Deemed Points and Four Decimal Policies, which have never been properly adopted as rules, were not applied as authoritative, substantial interests-determining principles. As arguments, these latter statements are rejected as not merely unpersuasive, but clearly erroneous and irrational. Decisions based on these flawed positions would be neither fact-based nor reason-based.
The Aggregate Definition was followed, not because it has the effect of law (it does not), but because it aligns with
the undersigned's best understanding of what an "aggregate score" was meant to be under rule 64-4.002, i.e., the average of the Reviewer scores rather than their sum.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health enter a final order approving Nature's Way's application for registration as an MMTC unless Nature's Way fails (i) to meet any pertinent requirement of section 381.986 not set forth in section 381.986(8)(a)2.a., or (ii) to provide documentation to the Department that it has the existing infrastructure and technological ability to begin cultivating marijuana within 30 days after registration.
DONE AND ENTERED this 15th day of June, 2018, in Tallahassee, Leon County, Florida.
S
JOHN G. VAN LANINGHAM
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2018.
ENDNOTES
1/ Florida Administrative Code Rule 64-4.002(5) provides that applications were due no later than 21 days after the effective date of the rule, which became effective June 17, 2015.
2/ Note, for now, that assigning a number, e.g., 5, to a superlative adjective such as "most qualified" does not turn the adjective into a measurement signifying the quantity of five units or points.
3/ To say that 20% of the symbol "5 points" is "1 point" would be, obviously, misleading, given the lack of a meaningful referent for "1 point" and the fact that "1 point" is commonly understood to signify a quantity as opposed to a quality.
4/ If this is a bit too abstract, perhaps it will help to imagine that, for some reason, instead of trying to quantify relative suitability, for which there is no commonly known unit of measurement, we were instead measuring length, for which there are commonly known standards. Clearly, for the weighting scheme to function, the same unit of measurement would need to be used in each weighted category. If inches were used in one category; yards in another; millimeters in the third; and feet and meters, respectively, in the remaining two, then the prescribed proportions would yield to the weight of the disparate standards, with the smaller units (millimeters) likely to generate much bigger numbers than the larger ones (meters).
5/ If we can say, for example, that 10 is twice as large as 5, which is permissible when 0.0 means there is none of the measured variable (think weight, e.g., as opposed to temperature), then the quantified data are not only interval, but also ratio data.
6/ It is true, as OCU's director, Mr. Bax, suggested at hearing, that the Department might have reported aggregate scores using a point scale three times the point scale applied by the Reviewers and maintained mathematical proportionality by adding the three Reviewer scores together to generate aggregate scores, rather than averaging the Reviewer scores. But Mr. Bax's assertion
that the differences between applicants would have been even "starker" had the Department used a treble scale for aggregate scores is only trivially true. In absolute terms, of course, the differences between two applicants would appear larger on the treble scale, because of the difference in the scale of the points. If we multiplied all the reported aggregate scores by 10,000, so that Costa's score became 44,000 and Nature's Way's score 28,833, the differences would appear even larger still.
This amplification, however, would occur for roughly the same reason a board measured in centimeters might seem longer than the same board measured in meters if all you knew were the numbers: it is simply a reflection of the size of the units of the scale. Proportionately, however, the scores would be the same. If there were two scales in use, two different units of measurement as it were, then the answer to the question of whether an applicant was within one point of another would depend on the scale.
7/ The Florida Administrative Procedure Act does not have a good term of art for policies that an agency uses in conjunction with its free-form actions. The term "unadopted rule," as defined in section 120.52(20), is reserved for policies that meet the definition of a rule; it is technically not applicable to policies which merely guide free-form decisions but lack the force of law; in addition, in any event, the term "unadopted rule" reflects a judgment about the nature of the policy that would be premature to make until the agency began to enforce the policy as authoritative and necessary to substantial-interests determinations. The commonly used (but formally undefined) term "nonrule policy" is ambiguous because "nonrule" can mean either
(i) not a rule in effect (i.e., a formally adopted, existing rule) or (ii) not a rule by definition (i.e., a statement that does not meet the definition of a rule). In the former, more limited sense, the nonrule policy might or might not also be an unadopted rule. In the latter sense, the term "nonrule policy" means "not an unadopted rule." The undersigned thus prefers a term like "extralegal" or "extra-rule" to refer to a free-form policy that is unregulated, but not necessarily unlawful. Such a policy might "harden" into an unadopted rule if the agency seeks to enforce the policy as an authoritative legal principle that purports to bind parties and judges and determine outcomes——or it might not.
8/ Dep't Ex. 1.
9/ When an agency determines a party's substantial interests, the agency must provide a clear point of entry to challenge that decision. Capeletti v. Dep't of Transp., 362 So. 2d 346 (Fla.
1st DCA 1978). In Capeletti, the court instructed that "an agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in . . . free-form proceedings, to formal . . . proceedings under section 120.57(1)." Id. at 348 (Emphasis added). For a notice to be legally sufficient as a clear point of entry, it must clearly state the nature of the agency's decision, as well as the process and time frame for challenging that decision. See Fla. Optometric Ass'n v. Bd. of Optometry, 567 So. 2d 928, 935 (Fla. 1st DCA 1990)(persons whose substantial interests may be affected by an agency decision "must be given a clear point of entry; i.e., a clear opportunity," to challenge the agency decision); see also Sterman v. Fla. State Univ. Bd. of Regents,
414 So. 2d 1102, 1103-04 (Fla. 1st DCA 1982)(notice that failed clearly to inform student he would not be awarded a specific degree was insufficient to provide a clear point of entry into formal proceedings to challenge that decision). Here, the only recognizable agency decision addressed in the 2015 notice of intent to deny Nature's Way's application was that Nature's Way's application would be denied. The notice did not inform Nature's Way that its aggregate score was determined to be 2.8833 or provide a clear opportunity to dispute the truth of the aggregate score of 2.8833 as a quantified fact.
10/ To illustrate, imagine the jersey numbers of the players on your favorite football team. They are, in effect, a code for identifying the personnel on the field. The meaning of the number is the player's name. If the quarterback, for example, were given the number 12.8833 instead of 12, the number would have no greater or more precise meaning. Now, can we subtract the quarterback's number from the center's number? Sure. It's a simple mathematical operation. Is the result meaningful or interpretable? No. If the numbers symbolize names rather than quantities, the difference between them has no meaning, because you can't subtract a name from a name. Suppose I tell you that the running back is 19 and the punter is 21. Without additional information, the numbers in that statement are ambiguous. They could be jersey numbers signifying identity (not quantifiable information), or they could be the players' ages signifying years of life (quantifiable information). If the latter, the two numbers can be meaningfully subtracted, because age difference is interpretable.
11/ Dep't of Health, Memorandum Opposing Ruskin's Motion in Limine Regarding the Department's Scoring and Ranking, at 3, DOAH Case No. 15-7270 (filed Aug. 5, 2016)(Emphasis added).
12/ Under the Department's theory of issue preclusion, Nature's Way would be barred currently from proving that a computational error, even an indisputable one, if corrected, would bring its 2015 aggregate score to within one point of Costa's for purposes of satisfying the One Point Condition.
13/ If the ALJ admitted the scores into evidence as proof concerning the comparative qualities of the applicants, the credibility of the scores would have been at issue for the first time. The Department itself never made credibility determinations with respect to the aggregate scores because, under rule 64-4.002(5)(b), it was required to accept them as credible for purposes of taking preliminary agency action. As the trier-of-fact, the ALJ would have been free to reject the scores as unpersuasive, in whole or in part, or believe them to the extent he felt appropriate, but the credibility of the scores would not have been the dispositive issue before him.
Other proof of the applicants' comparative qualities, including the applications themselves, would almost certainly have carried much greater weight than the scores on the question of which nursery was the most dependable, most qualified candidate, since the aggregate scores, viewed as evidence, are really nothing but (at best) conclusory opinions.
14/ When the substantial interests of an applicant are determined by denial in favor of a mutually exclusive application, the competing applicants are entitled to a comparative review hearing. Bio-Med. Apps. of Clearwater, Inc. v. Dep't of HRS, Off. of Cmty. Med. Facilities, 370 So. 2d 19 (Fla. 2d DCA 1979); see Ashbacker Radio Corp. v. F.C.C., 326
U.S. 327, 333 (1945); see also Gulf Court Nursing Ctr. v. Dep't of HRS, 483 So. 2d 700, 705 (Fla. 1st DCA 1985). The focus of the de novo comparative review hearing Nature's Way might have brought would have been on the comparative qualities of the applicants, not the Department's aggregate scores. See Johnston Broad. Co. v. FCC, 175 F.2d 351, 356-58 (D.C. Cir. 1949)("A choice between two [qualified] applicants . . . involves a comparison of characteristics [to determine] 'which is the better qualified' 'to serve the public interest.'" At hearing, the trier of fact "may rely upon the parties to present whatever factual matter bears upon a choice between them [and] is
entitled to assume that . . . the record . . . will contain reference to all the facts in respect to which a difference between the parties exists, and that the parties will urge, each in his own behalf, the substantial points of preference.").
15/ J.D. v. Fla. Dep't of Child. & Fams., 114 So. 3d 1127, 1132 (Fla. 1st DCA 2013).
16/ Dep't of Health, "Final Order," Plants of Ruskin v. Dep't of Health, DOH-17-0791-FOI-HO, 7-8 (Aug. 22, 2017). Given that the Department has failed from the beginning to appreciate the fundamental differences between ordinal data and interval data, which should be apparent to a reasonably well-educated college graduate and that it has flagrantly employed the logical fallacy of overprecision to make its scores seem more precise and impressive than they really are, the Department's boastful claims that its evaluation was performed by specially qualified "experts" and that its scoring decisions deserve deference are unintentionally ironic.
17/ The undersigned, in fact, found precisely that in Plants of Ruskin, Inc. v. Dep't of Health, Case Nos. 17-0116 & 17-0117, 2017 Fla. Div. Adm. Hear. LEXIS 338, *26-*27 (Fla. DOAH May 23,
2017)("[T]he Department's scoring of the applicants was, in any event, clearly erroneous, arbitrary, capricious, or an abuse of discretion.").
18/ In addition to Sun Bulb Nursery, the following 2015 DO applicants received MMTC licenses pursuant to the Medical Marijuana Law: Loops Nursery, Treadwell Nursery, 3 Boys Nursery, and Plants of Ruskin. As of this writing, 13 of the 26 2015 DO applicants have been licensed as MMTCs.
19/ The fact that an applicant can at once have both statuses (be within one point and one place of the Best regional applicant) does not make "one point" and "one place" somehow synonymous, just as, e.g., the fact that a person can be both a man and married does not make sex and marital status synonymous.
20/ By convention, numbers are assigned to ranks in ascending (or descending) whole numbers. But this is merely a matter of practice and convenience. It would not be incorrect to assign any set of ascending (or descending) numbers to indicate the direction of the ordered items. That is, in terms of the information conveyed, there is no difference between, say,
{5, 4, 3, 2, 1} and {943, 29, 17, 11, and 3}, when all we know is that 5 (or 943) is greater than 4 (or 29), which in turn is greater than 3 (or 17), etc.
21/ True value is useful, nevertheless, for quantifying error in determining the accuracy of a measurement. The formula is simple: error = x – μ. Of course, because we can never know μ, we cannot determine the exact error. We can, however, use a reference value for μ, i.e., our best estimate of a true value, to calculate our best estimate of the error in our measurement.
22/ Dr. Cornew is an expert in numerical and statistical analysis. He obtained his undergraduate and doctorate degrees from the Massachusetts Institute of Technology ("MIT"). After receiving his degrees, Dr. Cornew taught in the fields of computer science, statistical analysis, and numerical analysis at MIT, Simmons College, and Florida International University. In addition, Dr. Cornew has provided consulting services on statistical and mathematical issues related to investment and market strategies. The Department offered no evidence to rebut Dr. Cornew's testimony.
23/ Dr. Cornew reports this value as 2.8833 + 31.94%, to highlight the magnitude of upward uncertainty in the Department- generated aggregate score.
24/ The WMTOs are: Cultivation, 0.6500; Processing, 0.5500; Dispensing, 0.4000; MD, 0.1167; and Financials, 0.2667. The low endpoint can be expressed alternatively as 2.8833 – 31.21% to show the substantial uncertainty inherent in the reported score, even after limiting the Department's error with a generous assumption about the other applicants' scores.
25/ For the low endpoint, the Cultivation, Processing, Dispensing, MD, and Financials WMTOs, in that order, are: 1.1000, 0.9500, 0.4500, 0.1667, and 0.7333. For the high
endpoint, these values are: 1.4750, 1.4000, 0.7125, 0.2500, and 1.0000. From the reported aggregate score of 4.4000, these endpoints demonstrate an upward uncertainty of 9.94% and a downward uncertainty of 22.73%. (Dr. Cornew calculates Costa's low endpoint to be 3.3942, reflecting a downward uncertainty of 22.86%. This minor discrepancy in our figures, which might be an artifact of rounding, is immaterial.)
26/ The mean of this group of Average Domanial Ordinals is 3.06, the variance 0.716, and the standard deviation 0.85. Thus, in terms of relative suitability, Redland, KSG, and Nature's Way are right at the mean, well within one standard deviation thereof, while Costa and Bill's each fall more than one, but less than two, standard deviations from the mean.
27/ The Department argues that it had a license to engage in the logical fallacy of overprecision and rely upon meaningless, spurious digits because rule 64-4.002 required weighting and averaging, which would necessarily produce fractional results.
This argument is completely without merit. False precision results from exactly the kinds of mathematical operations the Department used, which is why the products of such equations must be corrected (rounded) to eliminate the otherwise deceptive digits. What the Department seems unable to understand (or, more likely, unwilling to concede) is that mathematical operations such as division and multiplication do not——cannot possibly——make the original measurements more precise. If you take several measurements to the nearest foot and then average them, you cannot truthfully report the result to the nearest thirty-second of an inch, even if the numbers can be run out that far, because nothing was actually measured with such precision.
28/ The Department stated in the Denial Letter that it had chosen not to determine whether Nature's Way had demonstrated its ability to commence cultivation within 30 days after registration, which is another criterion for licensure.
Nature's Way is not arguing, however, that the Department has waived the right to deny its application based on "cultivation readiness." Instead, the relief that Nature's Way seeks is a final order deeming it compliant with the "threshold criterion" of the One Point Condition and advancing its application to the next step in the free-form review process, where, presumably, cultivation readiness would be determined. The undersigned will accept Nature's Way's framing of the issue, but with this observation: The Department should have given lack of cultivation readiness as an alternative ground for its intended action if it believes in good faith that Nature's Way has failed to meet this criterion, rather than postponing the decision in hopes that it will never need to be reached. While perhaps legally permissible (the undersigned offers no opinion here), the severance of issues relating to an applicant's qualifications for licensure is suboptimal, for it creates the
real possibility of piecemeal litigation, and should generally be avoided.
29/ Fla. S. Comm. on Approp., SB 8-A (2017) Staff Analysis 6 (June 8, 2017).
30/ The verb "to score" here refers to the Reviewers' assigning of scores (Ordinals), not to computing aggregate scores from Ordinals assigned by the Reviewers.
31/ The legislature may find "legislative facts" without violating the separation of powers, but such findings are properly limited to broad matters of policy or value choices, usually given as explanation of the grounds for enacting a law. Facts particular to a dispute between parties upon which the substantial interests of an individual or entity depend are adjudicative facts, not legislative facts.
32/ The actual holding of Sheridan is that an agency is without authority under section 120.57(1)(l) to reject or modify an ALJ's decision not to apply res judicata or collateral estoppel as a bar to a party's litigating an issue which the agency contends was determined in a prior administrative proceeding, because the ALJ's "legal determination [is] not one that involve[s] the [agency's] area of expertise but, rather, require[s] applying a legal concept typically resolved by judicial or quasi-judicial officers." Id. at 1142. Because the agency may "not disturb the ALJ's legal decision not to apply the doctrine of collateral estoppel," it must leave intact the ALJ's findings as to the points and questions the agency believes should have been barred. Id. at 1144.
33/ Miller v. Booth, 702 So. 2d 290, 291 (Fla. 3d DCA 1997).
34/ Delray Med. Ctr., 5 So. 3d at 30.
35/ Univ. Hosp. v. Ag. for Health Care Admin., 697 So. 2d 909, 912 (Fla. 1st DCA 1997).
36/ Thomson v. Dep't of Envtl. Reg., 511 So. 2d 989, 991 (Fla. 1987).
COPIES FURNISHED:
Angela D. Miles, Esquire
Donna Elizabeth Blanton, Esquire Radey Law Firm, P.A.
301 South Bronough, Suite 200 Tallahassee, Florida 32301 (eServed)
Rex D. Ware, Esquire
Moffa, Sutton, & Donnini, P.A. 3500 Financial Plaza, Suite 330
Tallahassee, Florida 32312 (eServed)
Eduardo S. Lombard, Esquire
W. Robert Vezina, III, Esquire Megan S. Reynolds, Esquire
Vezina, Lawrence & Piscitelli, P.A.
413 East Park Avenue Tallahassee, Florida 32301 (eServed)
Shannon Revels, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 (eServed)
Nichole C. Geary, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
Celeste M. Philip, M.D., M.P.H. State Surgeon General Department of Health
4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 (eServed)
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
Applicant | Cultivation 30% | Processing 30% | Dispensing 15% | Med. Dir. 5% | Financials 20% |
Bill's 1.5500 | 1 1 1 2 | 2 1 2 2 | 1 1 1 2 | 2 | 1 |
5 1 3 3 | 4 2 2 1 | 1 2 1 1 | 3 | 1 | |
1 1 2 1 | 1 1 2 1 | 1 1 1 1 | 1 | 1 | |
22 ÷ 12 = 1.8333 1.8333 × .3 = .5500 | 21 ÷ 12 = 1.7500 1.7500 × .3 = .5250 | 14 ÷ 12 = 1.1667 1.1667 × .15 = .1750 | 6 ÷ 3 = 2 2 × .05 = .1000 | 3 ÷ 3 = 1 1 × .2 = .2000 | |
Costa 4.4000 | 5 5 5 5 | 3 5 5 5 | 3 5 5 4 | 4 | 5 |
4 5 5 5 | 3 5 4 5 | 4 3 3 4 | 5 | 4 | |
5 3 5 4 | 5 3 4 3 | 5 4 4 4 | 4 | 5 | |
56 ÷ 12 = 4.6667 | 50 ÷ 12 = 4.1667 | 48 ÷ 12 = 4.000 | 13 ÷ 3 = 4.3333 | 14 ÷ 3 = 4.6667 | |
4.6667 × .3 = 1.4000 | 4.1667 × .3 = 1.2500 | 4.000 × .15 = .6000 | 4.3333 × .05 = .2167 | 4.6667 × .2 = .9333 | |
Keith St. Germain | 4 5 4 1 | 4 4 4 1 | 4 2 2 2 | 2 | 3 |
3.2125 | |||||
2 4 2 2 | 2 1 3 2 | 2 1 2 2 | 4 | 3 | |
4 5 3 5 | 4 5 5 4 | 4 2 3 3 | 5 | 4 | |
41 ÷ 12 = 3.4167 | 39 ÷ 12 = 3.2500 | 29 ÷ 12 = 2.4167 | 11 ÷ 3 = 3.6667 | 10 ÷ 3 = 3.3333 | |
3.4167 × .3 = 1.0250 | 3.2500 × .3 = .9750 | 2.4167 × .15 = .3625 | 3.6667 × .05 = .1833 | 3.3333 × .2 = .6667 | |
Nature's Way | 2 3 4 3 | 2 3 1 3 | 3 3 3 4 | 5 | 2 |
2.8833 | |||||
1 2 4 4 | 1 3 1 3 | 3 4 4 3 | 2 | 2 | |
3 4 4 3 | 2 4 3 5 | 2 5 5 5 | 3 | 3 | |
37 ÷ 12 = 3.0833 3.0833 × .3 = .9250 | 31 ÷ 12 = 2.5833 2.5833 × .3 = .7750 | 44 ÷ 12 = 3.6667 3.6667 × .15 = .5500 | 10 ÷ 3 = 3.3333 3.3333 × .05 = .1667 | 7 ÷ 3 = 2.3333 2.3333 × .2 = .4667 | |
Redland 3.1750 | 4 2 2 4 | 5 3 3 4 | 5 5 5 5 | 4 | 4 |
3 3 1 1 | 5 4 5 4 | 5 5 5 5 | 1 | 5 | |
2 2 1 2 | 3 2 1 2 | 3 3 2 2 | 2 | 2 | |
27 ÷ 12 = 2.2500 | 41 ÷ 12 = 3.4167 | 50 ÷ 12 = 4.1667 | 7 ÷ 3 = 2.3333 | 11 ÷ 3 = 3.6667 | |
2.2500 × .3 = .6750 | 3.4167 × .3 = 1.0250 | 4.1667 × .15 = .6250 | 2.3333 × .05 = .1167 | 3.6667 × .2 = .7333 |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 13, 2018 | Agency Final Order | |
| Jun. 15, 2018 | Recommended Order | Petitioner meets the "within-one-point" condition of eligibility for licensure as a medical marijuana treatment center. |
