STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 86-0922
)
ROGER R. NEWTON, )
)
Respondent. )
) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Petitioner, )
vs. ) CASE NO. 86-1528
)
JACK TAYLOR, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice this cause came on for public hearing before P. Michael Ruff, duly designated Hearing Officer, on July 22, 1987, in Apalachicola, Florida. The appearances were as follows:
APPEARANCES
For Petitioner: John R. Perry, Esquire
Assistant Legal Counsel Department of Health and
Rehabilitative Services
2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32303
For Respondent: J. Ben Watkins
Watkins & Russell
41 Commerce Street Apalachicola, Florida 32320
PROCEDURAL BACKGROUND
Pursuant to a complaint filed by the Department of Health and Rehabilitative Services Respondent Taylor was notified that the Department intended to revoke a septic tank construction permit issued to him on January 14, 1985. The sole operative ground for revocation, alleged in the complaint, was that the Department of Environmental Regulation had determined that the property involved, adjoining the Apalachicola River, was within that Agency's "dredge and fill" jurisdiction. HRS also filed an administrative complaint
against Respondent Newton announcing its intention to revoke like permits issued to him for installation of two septic tanks on his property also in the vicinity of Apalachicola River, alleging as grounds that, 1. "The Department of Environmental Regulation has determined the properties within their dredge and fill jurisdiction" and 2. "Systems have been installed in violation of F.A.C.
10D-6.46(3) which requires systems shall not be located laterally within 75 feet of non-tidal surface waters. Swamp or marsh areas are defined as surface waters in accordance with F.A.C. 10D-6.42(38)."
The permits in question were issued to the Respondents on January 14, 1985.
Chapter 10D-6, Florida Administrative Code, was amended effective February 5, 1985, to require that the setback distance for an "on-site system" (septic tank and drain field) from lakes, streams, canals or other non-tidal surface waters should be 75 feet. The regulation in Chapter 10D-6, Florida Administrative Code, in existence at the time the permits were issued, provided the setback distance was 50 feet. The 1985 revisions to the rules in question added a definition of surface water reading as follows: "Surface water A recognizable permanent body of water, including swamp or marsh areas, contained within a recognizable boundary or bank." Rule 10D-6.42 (38), Florida Administrative Code.
Both Newton and Taylor timely sought a formal administrative proceeding and the Department referred the cause to the Division of Administrative Hearings and ultimately the undersigned Hearing Officer.
The cause came on for hearing as scheduled, after the cases had been consolidated by agreement of the parties and order of the Hearing Officer. The Petitioner presented six witnesses and the Respondent presented the testimony of Roger R. Newton, one of the respondents. All Petitioner's Exhibits, with the exception of Exhibit Y, were admitted into evidence. Petitioner's Exhibit Y was excluded on grounds of irrelevance and hearsay. The record was held open subsequent to the hearing for the taking and receipt of Petitioner's Exhibit A, a deposition. Respondents presented Exhibits 1-10 all of which were admitted into evidence.
At the conclusion of the proceeding, the parties elected to have the proceedings transcribed and requested the right to file proposed findings of fact and conclusions of law. Subsequent to the hearing, because of Respondent's counsel being out of the country for an extended period, an extended briefing schedule was granted by agreement of the parties. The time constraints of Rule 28-5.402 were waived and proposed findings of fact and conclusions of law were timely submitted by the parties. The issue to be resolved in this proceeding concerns whether the Department of Health and Rehabilitative Services should revoke the septic tank construction permits issued to Respondents, as not being in accordance with the requirements of the rules contained in Chapter 10D-6, Florida Administrative Code.
FINDINGS OF FACT
On December 28, 1984, Respondents Newton and Taylor applied to the Franklin County Public Health Unit for permits authorizing construction of septic tanks and drain field systems on properties they own adjoining the Apalachicola River. Respondent Newton filed two applications for two contiguous lots he owned on the river, while Taylor's application was for a parcel of property approximately 200 feet north of Newton's property, also adjoining the river.
Sometime during the following two weeks, Donald Shirah, then environmental health specialist with the Franklin County Public Health Unit, a subdivision of HRS, performed a site evaluation of the sites referred to in the permit applications. The site evaluation performed by Mr. Shirah indicated that on each lot soil composition consisted of gray sand down to 45 inches, with "mottling" at 45 inches and wet soil from 46 inches to 60 inches. The soil composition reflected a wet season high water table lying at 45 inches below the ground surface. The soil report further indicated that the percolation rate of
2 units per minute was "an excellent percolation rate." Based on these tests, Shirah approved the sites for construction of the septic tanks and drain fields and established the points on the property where the septic tanks should be located.
Thereafter, in May, 1985, the District II office of HRS, which directs the Franklin County Public Health Unit in matters concerning septic tanks and their installation, directed the Public Health Unit to reevaluate certain septic tank construction permits. Consequently, a letter from the Department went to all permit holders in Franklin County on August 5, 1985, including the Respondents. This letter informed them that their permits were subject to reevaluation. A considerable public furor ensued and, in an attempt to abate the discord and explain its intended action, HRS arranged a meeting with some of its public health officials and the Franklin County Commission on August 14, 1985. Respondent Newton attended this public hearing and exhibited his existing permit to HRS personnel in attendance. E. Charlton Prather, M.D., the state health officer for HRS, in attendance at this meeting, assured Respondent Newton that because his application had been made in 1984, prior to the designation of Franklin County as an "area of critical state concern," (effective July 1, 1985) and prior to the amendments to Chapter 10D-6, Florida Administrative Code, effective February 5, 1985, that his septic tank permits were still valid. Thereafter, Newton arranged with a contractor, to have the septic tanks installed, which was accomplished in approximately late October, 1985.
Newton had received a letter on October 11, 1985, from the Franklin County Public Health Unit, instructing him to contact the County Public Health Unit before proceeding with construction of his septic tank systems. Notwithstanding this letter, and in reliance on Dr. Prather's assurance that his permits were valid, Newton proceeded to install his septic tank systems. The installations were completed, and Newton paid the installer for the work on or before November 5, 1985, some two weeks after installation. The installation of the systems came to the attention of the Franklin County Public Health Unit on approximately December 10, 1985, when the septic tank installer informed Gerald Briggs, the environmental health specialist with the Franklin County Public Health Unit, that Newton's septic tank systems had been installed and were ready for inspection. Mr. Briggs gave the final inspection and informed the installer that the tanks were installed in accordance with the specifications contained in the permits. He also informed the installer that he could not issue final approval of the systems because they were located within 20 feet of "marsh land" and that, because he observed standing water on or about the site, the soil conditions were such that the system would not operate properly. Mr. Briggs discussed the situation with environmental health director, John Kinlaw, who decided that the permits should be revoked because they were located within a "wetland" area as defined by the rules of the Department of Environmental Regulation; so called "jurisdictional wetlands."
Mr. Briggs made measurements and examination of the soil and water conditions at the site and his measurements revealed standing water at a depth of 12 to 15 inches below the surface, contrary to the findings of Mr. Shirah,
who performed the inspection which resulted in the issuance of the permits. Mr. Briggs also observed a "marsh are all visible within 20 feet of the systems characterized by a growth of "marsh grass." Mr. Briggs' inspection was made at a time shortly after the hurricane which struck this area in late November of 1985, characterized by a severe and extensive period of rainfall. Mr. Briggs also observed mottling near the surface of the soil, at all three sites, which indicates water being present intermittently, such that the soil, being alternately wet and exposed to air, oxidizes, leaving a rust colored stain.
The septic tanks were installed at about a 5 1/2 or 6 foot depth.
There is about 2 to 3 feet of fill sand at the site, below which the installer had to dig to place the tanks. The fill sand is underlain by muck at a depth of
4 to 6 feet below the ground surface. As a necessary part of the installation of the tanks, some of that muck had to be excavated and placed on top of the ground in the vicinity of the tanks and remained on or near the surface of the ground at the time of Mr. Briggs' inspection. The water table exists at a level of approximately 4 feet below the ground surface and when that wet muck was excavated, some of it necessarily remained visible on the surface of the sites in question.
The systems constructed on Newton's lots are between 110 and 115 feet from the mean high water line of the Apalachicola River. The site description contained in the applications for the systems stated that the sites were to be
152 feet from the river. Nevertheless, there is no question that the sites are more than 75 feet from the Apalachicola River and that inspector Shirah assured the respondents that their sites were appropriately located. Indeed, he assisted in the location of them and informed the Respondents that the systems met pertinent regulatory requirements. That decision resulted in the issuance of the construction permits. Mr. Shirah established that the septic tank systems met all pertinent criteria concerning setback distances from lakes, streams, canals or other surface water bodies, including the Apalachicola River.
Roger Newton, a Respondent and Bob Engle, former director of research for the Department of Natural Resources, both testified concerning their familiarity with the property in question and the general physical description and topography of the land. The general physical nature of the property in 1987 was the same as it was prior to and at the time of the issuance of the permits on January 14, 1985. They established that there was no lake, canal, stream or surface water within 75 feet of the septic tank systems or sites in question.
A consent order was introduced into evidence which reveals, as a result of prior litigation in Franklin County Civil Case No. 75-55, that the Department of Environmental Regulation and the Army Corp of Engineers issued permits to the former owners of the property, which authorized them to fill the land at issue to a depth of 150 feet from the bank of the Apalachicola River westward. That fill was placed over the westward portion of this property, including the septic tank and drain field sites in question, to a depth of 2 to 3 feet. This had the result of raising the property to an elevation of approximately 10 feet above the surface waters of the Apalachicola River, which elevation dropped slightly to a road going through the middle of the lots, and remaining level thence westward to a point where the lots terminate in a marsh area.
The consent order in evidence does not establish on its face that the fill was actually placed in a jurisdictional wetland area, for purposes of the Department of Environmental Regulation's jurisdiction over the landward extent of state water as defined by the vegetative index contained in Chapter 17-4, Florida Administrative Code. The testimony of a representative of the DER does
not establish what dominant vegetational species might prevail on the sites in question which would render those sites within jurisdictional wetlands of the DER. The representative of the DER established that a jurisdictional wetland may be commonly referred to as a "swamp" or "marsh" and that, under prevailing policy of the DER, the fact that fill dirt has been placed on land does not render such land non-jurisdictional. Although this witness described DER's policy that issuance of a dredge and fill permit implies that the land in question is jurisdictional wetland, the fact remains that the face of the circuit court consent order in evidence does not establish that this indeed was jurisdictional wetland at the time the consent order was entered, nor at the present time. The consent order was the result of a settlement of that litigation, in effect a negotiated contract between the parties by which the dredge and fill permit was issued, in 1978. Further, although HRS purportedly has a policy that the term "surface waters," for purposes of the rules cited herein, includes within its ambit "swamps and marshes," the fact remains that in Rule 10D-6.42(38), the admitted 1985 clarification of that policy, surface water is defined as "...a recognizable permanent body of water, including swamp or marsh areas, contained within a recognizable boundary or bank..."(emphasis supplied). The septic tanks in question are not within 50 feet (for purposes of the pre-February 1985 rules) nor even within 75 feet of a swamp or marsh area which is contained within a recognizable boundary or bank. Even if marsh grass, (the species of grass has not been established) was observed growing within 20 feet of the septic tanks in question, it has not been established that was the boundary of a swamp or marsh area or other form of surface water body for purposes of the HRS rules in question. The testimony of the Petitioner's witnesses that marsh grass was observed growing close to the septic tanks does not overcome the showing by witnesses Newton and Engle that the actual water body, consisting of the marsh lying westward of the lots and disposal systems in question, was not within 75 feet of those systems.
In addition to the question of the setback distance of the septic tank systems from the surface waters in question, it has not been established that this property is wetland within the DER's jurisdiction. The Petitioner purports to regulate the location of the systems by reference to Chapter 17-4, Florida Administrative Code, whereby the DER, by the use of the vegetative index, defines wetlands or the landward extent of state waters. Thus HRS seeks also to justify revocation of the permits on the basis that these tanks are located not
50 feet or less from a marsh, but rather in it. As found above however, such has not been proven to be the case.
Although HRS purports to have a policy that any change which takes place on a piece of property, for which a septic tank permit has been issued, which creates a discrepancy between the actual state of the land and that represented on the permit application, renders the permit invalid, that situation has not occurred. In fact, it was shown that the fill in question has been on the property much longer than the period of time since the permit application and that the configuration and topography of the property remains the same as prior to December, 1984.
Finally, it has not been proven that the surface waters observed standing on the lands of Newton and Taylor, shortly after the extensive rainfall associated with the hurricane in November, 1985, are such waters as contemplated by Rule 10D-6.046(3) or 10D-6.042(38). There has been no proof that this was other than rainfall nor that the water remained on the surface of the land in question for more than 24 hours. See Rule 10D-6.046(3), Florida Administrative Code.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1985).
The ground plead by the Department for revocation of the Taylor septic tank construction permit was based solely upon a reported finding by the Department of Environmental Regulation that the land in question is jurisdictional wetland, as defined in Rule 17-4.020(10), Florida Administrative Code. The same ground is plead as a basis for revocation of the Newton permits, with the additional ground alleged that the septic systems in question violate Rule 10D-6.46(3), Florida Administrative Code, concerning the required setback distance from rivers, lakes, streams, canals or "other surface waters." Under the rules prevailing at the time the applications for the permits were filed and the permits were granted, a 50 foot setback distance was required.
Concerning the first ground alleged in both complaints, it is concluded that the Department of Health and Rehabilitative Services has no authority to enforce the Department of Environmental Regulation's rules, here the above rule defining jurisdictional wetland for purposes of the DER's dredge and fill permitting jurisdiction. The Petitioner has no authority to use that rule as a basis for revocation of the septic tank permits on the theory that the rule so defines wetlands or "marsh lands" with reference to the sites in questions so that the Department can then revoke the permits because the septic tank systems would in fact be within a marsh, swamp or wetland; in other words, a "0 setback distance" from such surface waters. See Rule 10D-6.46(3), Florida Administrative Code. Aside from the fact that the septic tank systems and sites in question are not located in jurisdictional wetlands, and aside from the fact that the Department of Petitioner's own rules contain a separate and distinct definition of rivers, lakes, canals, and "other surface waters" related to location of the "mean high water line;" the Petitioner simply cannot employ rules of the Department of Environmental Regulation, related to that agency's legislatively prescribed regulatory activity as a means for carrying out the HRS enforcement duties involved herein.
Administrative agencies are creatures of statute and have only those powers granted to them by the legislature which they are then empowered to implement, and interpret, within limits, by the enactment of rules. When the legislature grants power to an agency to exercise its authority in a certain way, the prescription of those powers precludes the agency from doing it in another, non-prescribed way. An agency can not impute power from the statutes or rules by which the legislature granted regulatory authority to another agency. The legislature, by enactment of Section 403.817, Florida Statutes, gave the DER authority over dredging and filling, and the permitting thereof, in waters of the state, as defined in Rule 17-4.020(10), Florida Administrative Code. HRS cannot simply borrow the jurisdictional definition of wetlands as related to dredging and filling and use it to further its regulation of the permitting and installation of septic tank systems. If such were allowed, the agency would in fact clearly be enlarging its own jurisdiction. See Kirk v. Publix Supermarkets, 185 So.2d 161 (Fla. 1966); Gulf American Corporation v. Florida Land Sales Board, 206 So.2d 457 (Fla. 2nd DCA 1968). Indeed, as held by the court in St. Petersburg v. Carter, 39 So.2d 804 (Fla. 1949), there is simply no occasion to give one statutorily created agency, jurisdiction over the activities or subject matter regulated by another agency, which is a distinct governmental unit regulating that activity or subject matter by a distinct, separate statutory authorization, unless the law unmistakably so provides. Here
the law does not "unmistakably so provide." In fact, the law provides otherwise, since HRS, by the organic statute under which Chapter 10D-6, Florida Administrative Code is promulgated, is granted the authority to regulate location and permitting of septic tanks in a way related in purpose, but distinct from the independent authority granted to DER to regulate concerning the effluent generated by related septic tank systems and incidental dredging and filling in jurisdictional wetlands attendant to septic system installation.
Put simply, for HRS itself to seek revocation of the septic tank permits in question, it must look to its own authority embodied in Chapter 10D- 6, Florida Administrative Code. If DER chooses to bring its own enforcement action against the parties, predicated on its proving that the locations of the sewage disposal systems lie within jurisdictional wetlands, it is free to do so. Such is a matter for another proceeding Accordingly, attention must be given to the HRS rules governing private sewage disposal systems in the context at issue herein.
In that connection, Chapter 10D-6, Florida Administrative Code, in the version which became effective December 22, 1982, contains the rules which govern the permits and systems in question, since those rules were in effect in December, 1984 when the permit applications were submitted and in January, 1985, when the permits were granted. Then Rule 10D-6.46(3) provides in pertinent part:
Systems shall not be located laterally within
50 feet of the mean high water line of lakes, streams, canals, or other surface
waters. (emphasis supplied.)
Rule 10D-6.42(16) then defines mean high water line as the largest normal boundary, perimeter or outline formed by a lake, river, stream or other body of water. "The mean high water line is determined by an evaluation of indicators such as vegetation, soil characteristics and other typical shoreline features." "Surface water" is then defined at subparagraph (29) of that rule as being "water upon the surface of the earth whether contained in bounds created naturally or artificially or diffused." In the instant situation, there has been no proof that the systems involved are or would be located within 50 feet from the mean high water line of any body of surface water. It is undisputed that the systems are all located, or to be located, more than 100 feet from the mean high water line of the Apalachicola River itself. Further, there has been no proof of the mean high water line of the marsh land lying westward from the septic tank locations in question. There has been no proof, as shown by the above findings of fact and evidence of record, of the presence of any of the indicators of the mean high water line of the marsh land, which could establish that the sewage disposal systems in question are within 50 feet of that marsh land, nor that it meets the definition of "surface waters" at a point within 50 feet of the sites. In particular, although testimony indicated that "marsh grass" was observed growing within 20 feet of the one of the septic tanks, there was no proof as to what species of vegetation it was, nor that it actually formed, in consideration of the other evaluative criteria referenced above, a portion of the mean high water line of the marsh land in question.
Indeed, unrefuted testimony of Mr. Newton and Mr. Engle establish that the boundary or shore line of the marsh area, i.e., the largest normal boundary, perimeter or outline, was much farther westward. In any event, the Department adduced no proof to show that the normal boundary or outline was within 50 feet of the sewage disposal systems in question.
Further, in this context, it is noteworthy that HRS has admitted to applying a consistent, statewide legal interpretation for approximately the past
7 years which defines the term "other surface waters" to include marsh and swamp areas. It admits that the specific inclusion of those terms in the surface water definition enacted in February, 1985, in Rule 10D-6.042(38), Florida Administrative Code, was a clarification of HRS's preexisting policy. Turning to that more recently enacted definition of surface water which took effect in February, 1985, and which concededly is a clarification of preexisting, uniformly applicable policy, it is revealed that surface waters are defined as a "recognizable permanent body of water, including swamp or marsh areas, contained within a recognizable boundary or bank." (emphasis supplied) Thus, if this rule definition of surface water is employed, consistent with pre-1985 HRS interpretive policy, it becomes even more clear that the sewage disposal systems in question are not within 50 or even 75 feet of "surface waters," because it has not been established that such waters were present within that setback distance "within a recognizable boundary or bank." The mere observation of "marsh grass" within approximately 20 feet of the septic tanks does not suffice.
The Petitioner espouses a policy of revoking septic system permits if approval of the location, design or installation has been based on misinformation provided in an application. Any misinformation at issue herein concerning the location of the systems, for example, that they were located approximately 110 feet from the Apalachicola River when the application represented them to be 152 feet, is actually the result of actions of the Department's own representative, Mr. Shirah. He, in fact, instructed the permittees as to the appropriate location for the systems on their property and approved the proposed design. The ultimate location of the disposal systems and issuance of the permits was due to his instruction and recommendation and not due to any misstatement on the part of the applicants. The septic tank permit applications have not been shown to contain any knowingly false or misleading information. HRS can not lawfully revoke those permits merely because the interpretation of the relevant rules governing septic tank location, installation and design became subject to a different interpretation by other representatives of the Department after the permits were granted.
The Court of Appeals for the First District, in Tri-state Systems, Inc. v. Department of Transportation, 11 FLW 1946 (Fla. 1st DCA 1986) held that an agency is under a statutory duty to investigate and make a determination when an application is initially granted. It can not thereafter revoke a permit for false application because it and not the applicant, made a mistake; "...otherwise, there would be no finality to the agency's action in issuing the permit." So to, in Food n' Fun, Inc. v. Department of Transportation, 11 FLW 1654 (Fla. 1st DCA 1986), the Department of Transportation sought to revoke a road sign permit because of a change in interpretation of the statutory authority for granting the permit. The Court held that at the time the permittee erected the sign, the sign conformed to the law as the Department of Transportation was then interpreting it. The court stated "...it cannot be said that, when that interpretation changes so as to render a previously lawful sign nonconforming, the permittee has committed a violation of the chapter so as to support revocation of his permits under Section 479.08." In Tri-state Systems, Inc. v. Department of Transportation, 11 FLW 1757 (Fla. 1st DCA August 12, 1986) the court was confronted with a similar situation in which a representative of the Department had authorized the location of a permitee's sign at a particular location, involving the definition of "commercial area" for purposes of Section 479.08, Florida Statutes. The Department then changed its interpretation of that provision after the permit was granted, with the result that it sought in a
later formal proceeding to revoke the permit on the basis that the sign had been illegally located by the applicant. The court found that the Department had erred in applying the statute to conclude that the permittee had violated Chapter 479, because no findings had been made that he had knowingly made false or misleading statements in his application for the permit nor that the permittee had violated the provisions of Chapter 479, since he had relied upon the authorization of the Department's representative in initially locating the sign. The court stated "...it is thoroughly specious to argue that when that interpretation changes, at any time and for whatever reason, the permittee has violated the chapter so as to support revocation of its permits." See also Wainwright v. Department of Transportation, 11 FLW 938 (Fla. 1st DCA April 22, 1986).
These cases are directly applicable to the situation at bar. Here the applicants applied for the septic system permits in question and indeed did represent that they would be located approximately 152 feet from the boundary of the Apalachicola River. The Department's representative, Mr. Shirah, went on the site, investigated and inspected the site, performed soil tests, etc., and then recommended and instructed the permittees concerning where to locate the disposal systems. Thereafter, as shown in the above findings of fact the interpretation by representatives of the Department concerning the legality of the already-permitted locations and installations, changed. It simply was not shown that the permits were granted based upon any misstatement or false representation by the permittees made in their applications, but rather were located and authorized based upon the recommendation of the Department's own representative. That being the case, the permittees and the Respondents should not be made to suffer revocation because the Department chose to interpret its regulatory authority as to this subject matter differently after the permits were granted. If indeed the Department has a policy of revoking preexisting permits when it has been shown that misleading information has been furnished it in an application, or because circumstances or physical conditions at the site have changed, the record evidence in this proceeding does not show either of those circumstances. Accordingly, the Petitioner has not satisfied its evidential or legal burden, justifying revocation of the septic system construction permits in question.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore
RECOMMENDED that the administrative complaints filed by the Department of Health and Rehabilitative Services seeking revocation of the septic tank construction permits issued to Jack Taylor and Roger Newton be dismissed in their entirety.
DONE and ORDERED this 5th day of January, 1988, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0922, 86-1528
Petitioner's Proposed Findings of Fact:
Accepted.
Accepted.
Accepted.
4-6. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and contrary to the preponderant weight of the evidence.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and not in its entirety supported by competent substantial evidence.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted, but not dispositive of material issues presented. 12-15. Rejected as irrelevant and immaterial.
Accepted, but not in itself dispositive of any material issue presented.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and contrary to the competent substantial evidence of record.
Respondent's Proposed Findings of Fact: 1-6. Accepted.
Accepted in part, but subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted, but not dispositive of any material issues presented.
Accepted, but not in itself dispositive of any material issue presented.
Accepted, but not dispositive of any material issue presented and subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted.
Rejected as contrary to competent substantial evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter.
13-14. Accepted.
Rejected as irrelevant and immaterial.
Accepted.
Accepted.
Rejected as constituting a conclusion of law and not a finding of fact.
Accepted.
Accepted.
COPIES FURNISHED:
John L. Pearce, Esquire
HRS District II Legal Counsel Suite 200-A
2639 North Monroe Street Tallahassee, Florida 32303
John R. Perry, Esquire Suite 200-A
2639 North Monroe Street Tallahassee, Florida 32303
J. Ben Watkins, Esquire
41 Commerce Street
Apalachicola, Florida 32320 John A. Kinlaw Environmental Health Director
Franklin County Public Health Unit Post Office Box 490
Apalachicola, Florida 32320
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Mr. Sam Power, Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
================================================================= AGENCY REMAND
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Petitioner,
vs. CASE NO.: 86-0922
ROGER R. NEWTON,
Respondent.
/ DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Petitioner,
vs. CASE NO.: 86-1528
JACK TAYLOR,
Respondent.
/
ORDER REMANDING TO THE DIVISION OF THE ADMINISTRATIVE HEARINGS
I conclude that this case should be remanded to the Division of Administrative Hearing for a reweighing of the evidence. In Friends of Children vs. HRS, 504 So2d 1345 at 1348 (Fla. 1st DCA 1987), the Court held that where a Hearing Officer erroneously excluded evidence, the case should be remanded for the Hearing Officer to reweigh the evidence and make findings of fact on the basis of all admissible evidence. Returning to the present case, the Hearing Officer did not consider HRS exhibit Y, which he excluded as irrelevant, and the testimony of Larry Olney, an environmental specialist with the Department of Environmental Regulations, on the issue of whether the subject lots were jurisdictional land (for explanation see the rulings on exceptions number nine 9 and 11 to the findings of fact and exception number 1 to the conclusion of law). This evidence is relevant; thus, the evidence as a whole must be reweighed and findings made on whether the 75 foot setback requirement of Section 381.272(6)(c), Florida Statutes (1983) is satisfied.
RULINGS ON EXCEPTIONS FILED BY THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
HRS excepts to the findings on page 5 of the Recommended Order concerning the statements of Dr. Prather at a meeting in August, 1985, on the
grounds the statements are irrelevant. Exception number one (1) is denied as this finding simply Provides background for the case.
HRS excepts to the finding in the paragraph spanning pages 6 and 7, regarding standing water. On this point as well as many others throughout the case the evidence is conflicting The Hearing Officers findings of fact are entitled to the same weight as the verdict of a jury. Gruman vs. State, 379 So2d 1313 (Fla. 2nd DCA 1980). It is the Hearing Officers function to resolve conflicts in the evidence, judge the credibility of witnesses, draw permissible inferences from the evidence, and make findings of fact; and the agency may not reject a finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. Heifetz vs. Department of Business Regulation, 475 So2d 1277 at 1281 (Fla. 1st DCA 1985). The finding to which HRS objects is supported by competent, substantial evidence; therefore, it cannot be rejected. This Order requires that the evidence be reweighed.
In exception number three (3) HRS asks that the Hearing Officer's findings regarding "mottling" be clarified. Exception number three (3) is granted. The presence of mottling indicates that water stays at a certain level for a considerable length of time on a regular basis.
HRS excepts to the finding on page 7 of the Recommended Order, that "the water table exists at a level of approximately 4 feet below the ground surface." The finding is based on competent, substantial evidence; therefore, it cannot be rejected. This Order requires that the evidence be reweighed.
HRS excepts to the finding on page 8 of the Recommended Order, that no surface water existed within 75 feet of the septic tank systems in question.
The finding is based on competent, substantial evidence; therefore, it cannot be rejected. This Order requires that the evidence be reweighed.
HRS excepts to the finding that the subject lots were not DER jurisdictional wetlands. This finding cannot be rejected as it was the subject of contradictory evidence. There was evidence that the lots had been filled and were no longer swamp or marsh. This Order requires that the evidence be reweighed.
In exception number seven (7), HRS maintains that the subject lands were wetlands and that there was no conflicting evidence on this point. This issue was the subject of sharply conflicting evidence. As Pointed out in exception number two (2), it is the function of the Hearing Officer to resolve conflicting evidence. This Order requires that the evidence be reweighed.
HRS excepts to the finding on page 10 of the Recommended Order, that the species of marsh grass which HRS personnel identified as such were not established. Again, this Order requires that the evidence be reweighed. It is noted that several species were identified in HRS exhibit Y which the Hearing Officer ruled was irrelevant.
HRS excepts to the Hearing Officer's finding with respect to HRS' reliance on the jurisdictional evaluation by DER authorized by Chapter 17-4, Florida Administrative Code. HRS does not regulate the location of on-site sewage disposal systems by reference to this chapter. Rather, HRS regulates the location of such systems by reference to Chapter 10D-6, Florida Administrative Code, and in this instance reads the terms "swamp" and "marsh", which were undefined in Chapter 10D-6, Florida Administrative Code, in pari materia with the definitions of wetlands in Chapter 17-4, Florida Administrative Code.
Exception number nine (9) is granted. A determination by DER that property is wetlands under its rule is highly relevant to whether the property is swamp or marsh under the HRS rule.
HRS excepts to the statement in the Recommended Order that HRS has a policy that any change which takes place on a piece of property, for which a septic tank permit has been issued, which creates a discrepancy between the actual state of the land and that represented on the permit applicant, renders the permit invalid. This is not HRS' policy. This portion of exception number ten (10) is granted. Regarding the Hearing Officer's finding on the extent of surface water, again the evidence was conflicting.
HRS objects to the finding in the conclusions of law section, that HRS has "changed" its interpretation of the rules regarding permitting of on-site sewage disposal systems in DER jurisdictional areas. It has been and remains HRS' policy to deny the permitting of such systems in DER jurisdictional areas.
This is a sound policy as it is likely to be very unusual that land which is "wetlands" under the DER rule would nevertheless meet the criteria for installation of a septic tank under HRS rules.
HRS is obligated to enforce its own rules, Section 120.68(12)(b), Florida Statutes; and if the facts are such that a septic tank is lawful under HRS statutory and rule authority it must be approved. While not applicable to this case, I direct that serious consideration be given to amending the HRS rule to adopt by reference the DER rule. The Apalachicola River is a fragile and irreplacable jewel in Florida's ecological crown. If that river and the bay nourished by it are destroyed it is likely to be caused by the cumulative effect of many small decisions, each of which, individually have an almost imperceptible effect. The enforcement of HRS' septic tank rules will hopefully help prevent loss of the river. Exception number eleven (11) is granted.
EXCEPTIONS TO CONCLUSIONS OF LAW
HRS excepts to the Hearing Officer's ruling excluding from evidence HRS exhibit Y, the DER jurisdictional report. This exception is granted as the exhibit is highly relevant on the issue of whether the septic tanks were installed in or within 75 feet of marsh or swamp surface water areas.
HRS excepts to the conclusion that under the rules prevailing at the time the applications for permits were filed, a 50 foot setback was required. The statutory requirement was 75 feet; thus, the rule was repealed by implication. Section 381.272(6)(c), Florida Statutes (1983). This exception is granted.
HRS excepts to the conclusion that HRS was attempting to expand its jurisdiction of wetlands. See the ruling on exception number eleven (11) to the findings of fact.
Here HRS further argues the jurisdictional issue. See the ruling on exception number eleven (11) to the findings of fact.
HRS maintains that the Hearing Officer concluded that the high water line of the swamp or marsh could not be determined. From a review of the transcript and exhibits it is clear that conflicting evidence was received on the setback issue and that findings were made. This Order requires that the evidence be reweighed.
HRS excepts to the conclusion that the permits must be honored because they were not shown to contain knowingly false or misleading information. The decision on these permits must be based on application of the setback law; thus, this exception is granted.
Here HRS further argues the jurisdictional issue. See the ruling on exception number eleven (11) to the findings of fact.
Based on the foregoing, it is adjudged that this case be remanded to the Division of Administrative Hearing for further proceedings consistent with this Order.
DONE and ORDERED this 15th day of February, 1988, in Tallahassee, Florida.
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services
Assistant Secretary for Programs
COPIES FURNISHED:
John R. Perry, Esquire District 2 Legal Counsel 2639 North Monroe Street Suite 200-A
Tallahassee, Florida 32303
J. Ben Watkins, Esquire WATKINS & RUSSELL
41 Commerce Street Apalachicola, Florida 32320
Michael Ruff Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
John L. Pearce, Esquire District 2 Legal Counsel 2639 North Monroe Street Suite 200-A
Tallahassee, Florida 32303
John A. Kinlaw
Environmental Health Director Franklin County Public
Health Unit
Post Office Box 490 Apalachicola, Florida 32320
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 16th day of February, 1988.
R. S. Power, Agency Clerk Assistant General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32299-0700
(904)488-2281
=================================================================
ORDER DECLINING REMAND
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 86-0922
)
ROGER R. NEWTON, )
)
Respondent. )
) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 86-1528
)
JACK TAYLOR, )
)
Respondent. )
)
ORDER DECLINING REMAND
This cause comes before the undersigned pursuant to an order entered by the Department of Health and Rehabilitative Services remanding this case to the Hearing Officer.
In that order the agency states that the Hearing Officer erred by not considering HRS Exhibit Y, an interoffice memorandum between staff members of the Department of Environmental Regulation (DER). The Department maintains that the Hearing Officer erred by excluding that exhibit on grounds of its irrelevance, as well as the testimony of Larry Olney, an environmental specialist with the Department of Environmental Regulation. The exhibit concerns the question of whether the subject lots, containing the septic tanks, were "jurisdictional lands" at the time pertinent to this proceeding as determined by rules of the Department of Environmental Regulation contained in Chapter 17-4, Florida Administrative Code. In fact, the record reveals that the testimony of Larry Olney was not excluded by the Hearing Officer, but rather only HRS Exhibit Y was actually excluded. In essence, the Department contends that it is entitled to look to a determination by DER that the property is "wetland" for purposes of that agency's rules defining such lands in Chapter 17- 4, Florida Administrative Code, in determining whether the property involved is "swamp or marsh" under the HRS Rules 10D-6.46(3); 10D-66.42(16), (29), and (38), Florida Administrative Code (1982, 1985) as discussed in the Recommended Order herein. The Department contends, therefore, that Exhibit Y should have been admitted as it is purportedly supportive of a determination that the property involved is "wetlands" for purposes of the DER's subject matter jurisdiction and that that can be relevant to a determination of whether the land constitutes swamp or marsh under the HRS rule, as that relates to the issue of whether the septic tanks are legally located or "set back."
The procedural history of this case is fully set forth in the Recommended Order entered by the undersigned, as is the basis for the Hearing Officer's exclusion of this exhibit on grounds of relevance. It should be noted that the exhibit in question, in essence, was, at most, an opinion by one DER staff member to another concerning the question of DER's jurisdiction. Moreover, the exhibit, although it references "Newton property," does not definitively indicate that any opinion contained within it applies to the specific lots in question in this proceeding. Moreover, even if the exhibit were considered, it would not refute the independent, competent, credible testimony and evidence upon which the Hearing Officer's findings of fact concerning the existence of the swamp and marshlands in question, and the related proximity of the sewage disposal systems, were based. That Recommended Order is adopted herein and incorporated by reference in its entirety.
The Department maintains that the Hearing Officer should have admitted the excluded exhibit and that therefore the cause must be remanded to the Hearing Officer to re-weigh the evidence based upon its view that the subject exhibit should have been admitted. In support of its attempted remand the Department relies upon Friends of Children vs. Department of Health and Rehabilitative Services, 504 So.2d 1345 at 1348 (Fla. 1st DCA 1987). That case involved a situation where the Hearing Officer excluded evidence of a licensure applicant's past illegal activities, ruled that the licensure applicant only had to show compliance with the agency rules containing the criteria for licensure and held that those rules did not allow for consideration of any past illegal activities by a licensure applicant. Thus, the Hearing Officer made no findings of fact at all on the subject matter of the past illegal activities, as they might relate to whether the license in question should be granted. That case is distinguishable from the situation at bar for two reasons. First, the evidence therein was determined to be ultimately admissible by the appellate court and
the court ruled that the cause should have been remanded to the Hearing Officer to supply the missing findings of fact based upon the court's holding that the evidence should have been admitted. Thus, the binding determination on the admissibility of the evidence was not made by the agency but was determined by the court upon the presention of that question to the court on review, pursuant to Section 120.68, Florida Statutes. Secondly, that situation involves a failure to make findings of fact on the subject matter by the Hearing Officer. The instant case does not involve a failure by the Hearing Officer to make findings of fact on the disputed subject matter concerning how the marsh or swamplands involved should be defined, and where they existed in relation to the proper setback distance from the septic tank systems in question, as provided in the HRS rules at issue in this case. The Hearing Officer made findings of fact on that subject matter and the agency does not assert that he failed to.
The agency does not contend that the Hearing Officer's findings of fact on the subject matter were not supported by competent, substantial evidence nor that he was not authorized to or failed to resolve conflicts in that evidence. Rather, the agency acknowledged that the Hearing Officer made the findings of fact and that he was acting within his appropriate province in resolving conflicts in the evidence. It acknowledged that the findings of fact were made and based upon competent, substantial evidence. The agency instead takes the position that it finds the ruling upon the disputed piece of evidence made by the Hearing Officer to be erroneous and that therefore the case should be remanded for a re-weighing of the evidence.
There is clearly no authority in the Administrative Procedure Act, Chapter 120, Florida Statutes, authorizing an agency to overturn an evidentiary ruling, remand the case to the hearing officer and direct him to admit the evidence and then to re-weigh evidence as a result of the agency's "ruling on admissibility." Florida Department of Law Enforcement v. Dukes, 484 So.2d 645, 647 (Fla. 4th DCA 1986). The unassailable, bedrock philosophy underlying the Legislature's enactment of Chapter 120, and its establishment of hearing officers as presiding officers in conducting hearings pursuant to that Chapter is that all litigants in formal disputes involving state agencies before hearing officers must be able to litigate on an equal footing, a level playing field. See Section 120.57(1)(b)3; Dore, Access to Florida Administrative Proceedings, 13 F.S.U. Law Review 965, at 1079 (1986).
The clear legislative purpose underlying the enactment of Chapter 120 and the conduct of administrative proceedings before the Division of Administrative Hearings would be quickly frustrated if agencies, participating as parties before this forum, could, at the final order stage of such a proceeding, elect to overturn a hearing officer's evidentiary rulings in order to achieve their desired purpose in litigating in the proceeding. Lying at the very heart of the legislative purpose in enacting Chapter 120 is the mandate that there should be a fair, impartial, independent forum before which state agencies and private litigants can achieve a fair and just resolution of their disputes. State ex rel. Dept. of Gen. Serv. v. Willis, 344 So.2d 580, 591-92 (Fla. 1st DCA 1977); 3 England and Levinson, Florida Administrative Practice Manual, Reporter's Comments on Section 0120.10 of the Proposed Act, at page 22. This is why McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977) and its numerous progeny, for example, dictate that a hearing officer makes binding findings of fact upon the material issues presented, which are unassailable by the agency at the final order stage in the process, unless those findings of fact are not supported by competent, substantial evidence in the record. This line of cases holds, in a corollary fashion, that the agency cannot re-weigh the evidence upon which the hearing officer based his findings of fact. Here the
agency is, in effect, circumventing that stricture by attempting to remand to the Hearing Officer, directing him to admit evidence which the agency wishes admitted, after the Hearing Officer ruled it inadmissible, and to force the Hearing Officer to re-weigh the evidence. This is clearly inappropriate. To do so would allow the agency, which must participate on an equal footing with any other party to such a proceeding while the case is before a hearing officer, to simply wait until the proceeding was before the agency for final order and elect to achieve its objective by deciding that the hearing officer made an erroneous evidentiary ruling and should re-weigh the evidence in light of the agency's (the erstwhile party litigant's) view that the hearing officer's evidentiary ruling was erroneous. Such would constitute a subterfuge and entirely circumvent the requirement in Section 120.57(1)(b)3 that agencies can only participate in proceedings before DOAH hearing officers in the same capacity as any other party litigant. Such a practice and result would render that provision meaningless and would engender the kind of endless litigation which the court in Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 at 784 (Fla. 1st DCA 1981) held that the Administrative Procedure Act does not permit.
It is totally incongruous to believe that Chapter 120 contemplates that an agency, participating as a party litigant before a presiding officer, who is the tribunal charged with gathering the evidence, making rulings thereon, and making findings of fact on the competent, credible evidence, can so obviate the fundamental fairness of having to participate in this proceeding as a litigant by, in its final order role, overturning the hearing officer's rulings on evidence, directing the hearing officer to accept the agency's ruling on it, and re-weigh it accordingly. It is certainly appropriate at this juncture to note that rulings on the admissibility of evidence in a formal proceeding under Chapter 120 are not policy questions "infused with agency expertise" upon which agency heads are entitled to great credence. Hearing officers have been required by the Legislature to be experienced attorneys, with a minimum requirement of five years admission to the bar. The Legislature cannot have contemplated, in enacting Chapter 120, that the agency head should have authority to look behind and overturn the evidentiary rulings made by the hearing officer during the course of the hearing.
The hearing officer is exclusively charged with the duty of fact finding.
Fact finding, of course, must be based on the evidentiary record. Since the evidentiary record and resolution of questions regarding what pieces of evidence make up that record are the essential building blocks of fact finding, it follows that a law-trained hearing officer should make the evidentiary rulings which determine what evidence he or she can employ in finding facts.
Correspondingly, review of any errors in such rulings is the proper province of law-trained judges who are neutral arbiters in the resolution of disputes.
Certainly the agency, which is not a neutral arbiter, but rather a partisan litigant, has no business reviewing evidentiary rulings of the hearing officer, to whom it referred the proceeding for neutral fact finding and legal interpretation in the first place.
In this connection, Section 120.57(1)(b)10 states that the agency may adopt the hearing officer's recommended order as the final order of the agency or reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but it may not reject or modify the findings of fact unless it determines, after review of the complete record, that they are not based upon competent, substantial evidence or that the proceedings on which the findings are based did not comply with the essential requirements of law.
The agency has not found that the Hearing Officer departed from the essential
requirements of law in the conduct and fairness of the proceeding, nor that the findings of fact were not based upon competent, substantial evidence. In fact, it acknowledged the opposite. The agency was accorded a full and fair opportunity to present its evidence, and a ruling was made that the subject exhibit was inadmissible. The agency was then permitted to proffer that piece of evidence, thus preserving the record of it, and the ruling thereon, for purposes of appeal pursuant to Section 120.68, Florida Statutes.
This is not a situation where the hearing officer failed to make an essential finding of fact on a material, dispositive issue presented, in which situation a remand has been allowed in some circumstances. See Cohn v.
Department of Professional Regulation, 477 So.2d 1039 (Fla. 3rd DCA 1985) and Friends of Children, supra. Here the hearing officer made all appropriate and essential findings of fact on the subject matter of the material issues presented and the secretary has not determined that the essential requirements of law were departed from nor that the findings of fact made were not based on competent, substantial evidence. This case is circumstantially different from that of Fire Defense Centers, et al. v. Dept. of Insurance, 14 FLW 2110 (1st DCA 1989). In that decision the court indicated a remand to the Hearing Officer would have been appropriate, based on the agency's determination that a piece of evidence was admitted by the Hearing Officer which did not relate to the penal charge before him, in order to afford the party relying on that evidence an opportunity to offer other evidence to prove the fact in question or to meet the agency party's objection. Presumably that ruling by the Hearing Officer may have involved a departure from the essential requirements of law by conduct of the proceeding in a deficient way in terms of fairness and due process. In any event the court indicated that its ruling turned on the particular circumstances of that case. In actuality there was no remand in that case, rather a per curiam affirmance. The court's hypothetical mention of a remand procedure is not determinative of this case. While the agency, under Section 120.57(1)(b)10 can reject the hearing officer's conclusions of law, this involves conclusions of law and interpretation of administrative rules concerning the statutes and rules at issue in the proceeding, that is, the organic law by which the agency regulates the subject matter involved in the proceedings. It does not encompass any authority in the agency to remand the case to the hearing officer directing him or her to admit certain evidence. Thus, the agency, under Section 120.57(1)(b)10, Florida Statutes, may either adopt the recommended order as its final order or may reject the conclusions of law and interpretation of administrative rules in the recommended order concerning the legal issues dispositive of the case. See Henderson Signs v. Florida Department of Transportation, 397 So.2d 769 (Fla. 1st DCA 1981) and J.W.C. Company, supra.
In the latter event, if the Respondent then elected to appeal pursuant to Section 120.68, then the question of the admissibility of the evidence in question before the hearing officer could be properly addressed by the appellate court. Alternatively, if the agency, not being able to say that the findings of fact made by the hearing officer were not based on competent, substantial evidence, adopted the hearing officer's recommendation in issuing the final order, it would not be able to appeal its own order. See Florida Department of Law Enforcement v. Dukes, 484 So.2d 645 (Fla. 4th DCA 1986) and cases cited therein. The court in Dukes, as to that latter situation, cited 120.68(1), Florida Statutes, which provides:
... preliminary procedural or intermediate agency action or ruling, including any order
of the hearing officer, is immediately reviewable if the review of the final agency decision does not provide an adequate remedy.
The court then found that, in that latter situation where the hearing officer's recommendation was adopted, precluding the agency from appealing its own order, appeal was appropriate and that at such a juncture "this review of the final agency decision would not provide an adequate remedy." In the Dukes case the Petitioner agency had contended that appeal was necessary directly from the recommended order of the hearing officer because if the agency followed the hearing officer's recommendation in issuing its order, it would not be possible to appeal from its own order. Secondly, if it were to deviate from the hearing officer's recommendation, the court would be forced to follow the hearing officer's recommendation on appeal, based upon the record in that case, which was a situation where the essential evidence of the Petitioner agency had been excluded by the hearing officer. The court acknowledged it would be improper for the agency to appeal from itself, and then it went on to state:
As for Petitioner's second contention, we agree that since it was not permitted to introduce the bulk of its evidence, it could not say that the findings of fact of the hearing officer were not based on competent substantial evidence (at least not without being reversed by this court). While an agency is permitted under Section 120.57(1)(b)9 [now 120.57(1)(b)10] to reject the hearing officer's conclusion of law, Petitioner points out that there is nothing in the Administrative Procedure Act (APA) authorizing it to remand the case to the hearing officer and directing him or her to admit the evidence in question. Based on the above, we agree that Petitioner has no adequate remedy on review of the final agency action. Page 647.
The Dukes decision is controlling in the situation presented at bar and it appears that the agency is in a posture of either electing to deviate from the hearing officer's recommended order by reversing his conclusions of law or accepting the hearing officer's recommended order in its entirety at which point the agency would be unable to appeal or, in accordance with the Dukes opinion, take the position that the agency had no adequate remedy on review of the final agency action, by final order, and seek an immediate review of the hearing officer's recommended order on the question of the admissibility of the evidence about which the agency is concerned. In any event, it is quite obvious, in view of the above considerations and authority cited, that there is no basis for an agency to remand a case to a hearing officer because it contests an evidentiary ruling made by that hearing officer. Such rulings are the exclusive province of the hearing officer charged with conducting a fair evidentiary hearing and making findings of fact and conclusions of law upon the evidence presented, in accordance with Section 120.57(1), Florida Statutes, and issues concerning rulings on the evidence presented are the proper province of the appellate court. Accordingly, the order of remand is respectfully declined.
DONE and ORDERED this 25th day of October, 1989, at Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1989.
COPIES FURNISHED:
John R. Perry
Assistant Legal Counsel Department of Health and Rehabilitative Services Suite 200-A
2639 North Monroe Street Tallahassee, Florida 32303
J. Ben Watkins Watkins & Russell
41 Commerce Street Apalachicola, Florida 32320
| Issue Date | Proceedings |
|---|---|
| Jan. 05, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 03, 1990 | Agency Final Order | |
| Feb. 16, 1988 | Remanded from the Agency | |
| Jan. 05, 1988 | Recommended Order | Not shown that sep-tanks viol. HRS set-back rule from w.body ""with recogniz bnk or boundry."" HRS can't enforce permit rule by ref to DER jurisd rule. |
