STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEGAL ENVIRONMENTAL ASSISTANCE )

FOUNDATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-2956RX

) FLORIDA PUBLIC SERVICE COMMISSION, )

)

Respondent. )

)

FINAL ORDER

This case was scheduled and heard on July 6, 1993. The hearing considered challenges to Rule 25-22.056(1)(a) and (b), 25-22.056(4) and 25-22.058, Florida Administrative Code, brought pursuant to authority set forth in Sections 120.54,

1. and 120.535, Florida Statutes. The hearing was held at the Offices of the Division of Administrative Hearings in Tallahassee, Florida, and the Hearing Officer was Charles C. Adams.

   
   

   APPEARANCES

   
   

   For Petitioner: Ross Stafford Burnaman, Esquire

   Legal Environmental Assistance Foundation 1115 North Gadsden Street

   Tallahassee, Florida 32303

   
   

   For Respondent: Marsha E. Rule, Associate General Counsel Florida Public Service Commission

   106 East Gaines Street Tallahassee, Florida 32399

   
   

   STATEMENT OF ISSUES

   
   

   The issues to be considered were framed through challenges to the aforementioned rules as alleged invalid exercises of delegated legislative authority, and if held to be invalid that the rules constitute agency statements that violate Section 120.535, Florida Statutes.

   
   

   In particular Petitioner alleges that the rules are invalid exercises of delegated legislative authority for reason that:

   
   

   1. The Respondent failed to publish notice of its decision to modify the challenged rules after they had been proposed.

      
      

   2. Rules 25-22.056(1)(a) and (4)(b), Florida Administrative Code, deny parties the opportunity to file exceptions to any order or Hearing Officer's recommended order as allowed by Section 120.57(1)(b)4, Florida Statutes.

   3. Rules 22-25.056(1)(a) and (4)(b), Florida Administrative Code, are invalid exercises of delegated legislative authority in that they modify and contravene Sections 120.53(1)(c), 120.57(1)(b)4 and 6 and 120.58(1)(e), Florida Statutes, and are arbitrary and capricious.

      
      

      1. Concerning Section 120.53(1)(c), Florida Statutes, the challenged rules are alleged to be other than "rules of procedure appropriate for the presentation of argument." It is asserted that the possibility exists that the failure to accept a finding of fact could be considered as a waiver of objection on appeal in the setting where the rules are not procedures appropriate for presentation of argument. Therefore, the rules are alleged to be inappropriate.

         
         

      2. It is alleged that the rules violate Section 120.57(1)(b)4, Florida Statutes, specifically in that the rules do not allow parties the opportunity to file exceptions in the instance where two or more Public Service Commissioners conduct the formal proceeding, contrary to the referenced statutory provision which does not contain that limitation. Similarly, it is alleged that the rules violate Section 120.57(1)(b)6(e), Florida Statutes, by failing to provide the parties the opportunity to develop a record which includes exceptions, in that no opportunity to file exceptions is provided other than the instances where a hearing officer conducts the formal proceedings.

         
         

      3. It is alleged that Section 120.58(1)(e), Florida Statutes, is violated in that the challenged rules do not provide the parties the opportunity to file exceptions to the proposed order in those circumstances where a majority of those who are to render the final order have not heard the case or read the record, and where a decision adverse to a non-agency party is to be made, thus contravening the legal requirements set out in that statute.

         
         

   4. It is alleged that there is no logical rationale for limiting the statutory opportunity to file exceptions according to the number of Public Service Commissioners conducting the formal hearing, when considering the aforementioned statutes.

      
      

   5. It is alleged that Rule 25-22.056(1)(b), Florida Administrative Code, is vague in that it fails to establish adequate standards for agency decisions by not specifying what is meant by the right to file exceptions to a proposed order "within the time . . . designated by the hearing officer." Moreover, Rule 25-22.056(1)(b), Florida Administrative Code, when contrasted with Rule 25- 22.056(4)(b), Florida Administrative Code, is said to be inconsistent when describing the right to file exceptions to recommended orders.

      
      

   6. Rule 25-22.058, Florida Administrative Code, is alleged to limit oral argument in formal proceedings to only those instances when the Respondent exercises discretion to grant oral argument in contravention of Section 120.58(1)(e), Florida Statutes, which is alleged to grant a mandatory right of oral argument in instances where a majority of those who are to render the decision have not heard the case or read the record and a decision adverse to a party other than the agency is contemplated by a proposed order.

PRELIMINARY STATEMENT

On May 28, 1993, the rules case was filed with the Division of Administrative Hearings. The case was assigned to a hearing officer on June 4, 1993. The hearing was conducted on July 6, 1993.

Prior to hearing two separate requests for official recognition were made by Petitioner and granted through orders entered on June 9 and 21, 1993.

Petitioner made a motion for summary final order. Respondent responded to that motion and filed a cross-motion for summary final order which was opposed by the Petitioner in a response. Those motions for summary final order are addressed by the final order.

Respondent's motion to quash subpoena was made moot by arrangements made at hearing which spoke to the issues set forth in the motion.

Petitioner's Exhibits 2, 5, 6, 9, 10, and 11 through 20 were admitted at hearing. Petitioner's Exhibit 4 was admitted for the limited purpose of serving as an example of an agenda conference transcript before the Florida Public Service Commission. Petitioner's Exhibit 7 was identified as an exhibit, should drafts of the final order in Commission Docket No. 920520-EQ be found. No exhibit under that number was admitted based upon the representation by Respondent that those drafts no longer existed. Petitioner's Exhibit 8 was withdrawn. Petitioner's Exhibit 3 was offered and ruling reserved on its admission. Upon consideration of the argument in favor of and in opposition to that exhibit, Petitioner's Exhibit 3 is admitted. Petitioner's Exhibit 1 was denied admission.

Respondent's Exhibits 1 and 2 were admitted. Subsequent to the hearing Respondent moved to withdraw its Exhibits 9 and 10. That motion was opposed. Upon consideration the motion to withdraw is granted.

Petitioner did not present witnesses. Respondent presented Michael A. Palecki as a witness.

The parties entered into certain factual stipulations as set forth in the transcript of proceedings.

The parties submitted proposed final orders which have been reviewed. The fact finding set forth in those proposed final orders is addressed in an appendix to the final order.

FINDINGS OF FACT

Rules Adoption

1. On October 18, 1992, Respondent published notice of intent to adopt Rule 25-22.021, Florida Administrative Code, entitled Agenda Conference Participation. The publication was made in the Florida Administrative Weekly. On that same date, in the Florida Administrative Weekly, Respondent published notice of its intent to amend Rule 25-22.056, Florida Administrative Code, entitled Post Hearing Filings; to repeal Rule 25-22.057, Florida Administrative Code, entitled Recommended Order, Exceptions, Replies, Staff Recommendations; and to amend Rule 25-22.058, Florida Administrative Code, entitled Oral Argument.

2. On November 12, 1992, Petitioner submitted timely written comments to the Respondent regarding the rule proposals. In these comments Petitioner expressed an interest in the right to file exceptions to opposing parties' proposed findings of fact and to file exceptions to Respondent's staff advisory memoranda provided to Commissioners.

   
   

3. On February 16, 1993, Respondent considered the published rules and public comments and voted to adopt the rules with changes.

   
   

4. On March 3, 1993, Respondent filed with the Secretary of State a certification of the adopted rule, rule amendments and rule repeal previously described.

   
   

5. On March 4, 1993, Respondent issued an order memorializing the adoption process. That order was No. PSC-93-0337-FOF-OT, Notice of Adoption of Rule. This document set forth that the Respondent had adopted Rules 25-22.021 and 25- 22.056, Florida Administrative Code, with changes; that Rule 25-22.058, Florida Administrative Code, was adopted without change and that Rule 25-22.057, Florida Administrative Code, was repealed.

   
   

6. Respondent did not publish additional notice in the Florida Administrative Weekly of the decision to change Rule 25-22.056, Florida Administrative Code.

   
   

   The Parties

   
   

7. Petitioner is a public interest environmental law firm with an office in Tallahassee, Florida. It is a corporation authorized to do business in the state of Florida. Petitioner has been a party to Respondent's formal administrative proceedings and is presently a party to such proceedings. In the past, Petitioner has filed post-hearing pleadings following formal administrative proceedings conducted by Respondent.

   
   

8. Respondent holds hearings pursuant to Section 120.57, Florida Statutes, and prepares orders in accordance with that provision. The Florida Public Service Commission has five members.

   
   

9. The Chairman of the Florida Public Service Commission has the responsibility to assign cases for hearing. See Sections 350.01 and 350.125, Florida Statutes. The assignment of formal proceedings is to an individual Public Service Commissione; a hearing officer with the Division of Administrative Hearings upon referral to the Division of Administrative Hearings; and panels constituted of two or more Commissioners. See also Rule 25-22.0355, Florida Administrative Code.

   
   

10. Upon Petition in accordance with Section 350.01(6), Florida Statutes, and by decision made by a majority of the commissioners some proceedings may be assigned to the full Florida Public Service Commission for consideration.

    
    

11. Commissioners who have been assigned to a proceeding act in a quasi- judicial capacity and are called upon to find facts as well as determine applicable law and are charged with making the ultimate decision in that proceeding.

    
    

12. Commissioners vote on the issues considered in the cases presented. The voting occurs at a public agenda conference. A vote sheet is maintained.

13. Legal staff assist the Commission in preparing the final order than memorializes that vote. There are no preliminary drafts or recommended orders (proposed orders) circulated to the parties unless the hearing was conducted by a single Commissioner serving as a hearing officer. Dissents from the majority vote in proceedings conducted by panels of Commissioners may or may not be reflected through a written dissenting opinion shown at the end of the final order.

    
    

14. The final order discusses issues, makes fact finding and draws legal conclusions, and also makes ruling on proposed findings of fact submitted by the parties. There is no requirement for review or signature on the final order by persons assigned to the proceedings. The final order is issued by the Director of the Division of Records and Reporting or a person supervised by that individual.

    
    

15. Opportunity is not presented to file exceptions to the staff advisory recommendations or to final orders of the Commission. Exceptions may be filed to proposed or recommended orders drawn by a single Commissioner sitting as a hearing officer or directed to recommended orders issued by a hearing officer from the Division of Administrative Hearings.

    
    

16. Commissioners assigned to a proceeding receive copies of post-hearing submissions.

    
    

17. In cases which are heard by two or more Commissioners, a recommended order (proposed order) is not prepared. Instead, in each case the Commissioners have available a staff memorandum concerning the issues in the proceeding for use at the agenda conference where a decision is reached in the case. That decision is rendered as a written final order.

    
    

18. Advisory memoranda presented to assigned Commissioners in the various proceedings include discussions of issues found in prehearing orders, statements by each party concerning their position on those issues, staff recommendations as to resolution of issues, and an analysis of evidence and argument presented in the hearings and in the post-hearing filings, with citations to hearing testimony and reference to hearing exhibits. At times the advisory memoranda may include more than one recommended disposition on issues if the staff members do not concur as to the appropriate recommendation. Staff members may not prepare an advisory memorandum if they have testified in the proceeding.

    
    

19. The advisory staff memoranda are not controlling when the assigned Commissioners deliberate cases.

    
    

20. Commissioners who have been assigned to a case have heard the testimony and had the opportunity to review prefiled testimony, the hearing transcripts, transcripts of any argument that was permitted, the briefs of the parties and any proposed findings of fact and conclusions of law, as well as any statement of position of the parties and the staff advisory memorandum before deciding a case.

    
    

21. The format for final orders is described in Rule 25-22.059, Florida Administrative Code.

    
    

22. After a final order has been entered an adversely affected party may request reconsideration of the final order or take appeal to the appropriate court. See Rule 25-22.060, Florida Administrative Code. A motion for reconsideration addresses the substance in the final order, whereas, corrections

    which deal with scrivener's errors are made by informal contact through correspondence directed to the Florida Public Service Commission. A motion for reconsideration need not be correctly styled to be considered. Motions for reconsideration are voted upon by the Commissioners assigned to the proceeding.

    
    

23. Separate written advisory memoranda are prepared directed to the disposition of motions for reconsideration. The motion is voted upon by the Commissioners assigned to the proceeding. The order directed to the motion for reconsideration is drafted by the legal staff for the Commission. The vote by the individual Commissioners assigned to the proceeding in deciding whether to reconsider is memorialized in a manner similar to the vote on the final order decision previously reached.

    
    

    The Subject Rules

    
    

24. Rule 25-22.056(1)(a), Florida Administrative Code, describes the post- hearing opportunities for parties to a proceeding where two or more Commissioners or the full Commission conducts a hearing pursuant to Section 120.57, Florida Statutes. By contrast Rule 25-22.056(1)(b), Florida Administrative Code, describes the opportunities for post hearing submissions following a hearing conducted pursuant to Section 120.57, Florida Statutes, in which a single Commissioner sits as a hearing officer.

    
    

25. Rule 25-22.056(4)(b), Florida Administrative Code, describes the opportunity for excepting to the proposed order of a single Commissioner sitting as a hearing officer or the recommended order in cases heard before a Hearing Officer employed by and assigned by the Division of Administrative Hearings.

    
    

26. Rule 25-22.058, Florida Administrative Code, describes opportunities for oral argument before the Florida Public Service Commission associated with Section 120.57, Florida Statutes, formal hearings.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over this case pursuant to Sections 120.54, 120.56 and 120.57, Florida Statutes.

    
    

28. Petitioner is substantially affected by the challenged rules and has standing to bring the rule challenge. See Section 120.56(1), Florida Statutes.

    
    

29. In accordance with Section 120.52(8), Florida Statutes, the burden of proving its claims resides with Petitioner when attempting to demonstrate that the challenged rules constitute an invalid exercise of delegated legislative authority and if invalid that the policy statement envisioned by the subject rules violates Section 120.535, Florida Statutes. See also Agrico Chemical Co.

    v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979) and Adam Smith Enterprises v. Department of Environmental Regulation, 555 So.2d 1260 (Fla. 1st DCA 1990).

    
    

30. Wide discretion is afforded an agency in exercising lawful rule making which is clearly conferred or fairly implied and coincides with an agency's general duties set forth in statutes. Department of Professional Regulation v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984).

    
    

31. Petitioner has failed to prove that the rules under consideration are an invalid exercise of delegated legislative authority.

32. The term "invalid exercise of delegated legislative authority" is defined at Section 120.52(8), Florida Statutes, where it states:

    
    

    "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

    1. The agency has materially failed to follow the applicable rule making procedure set forth in s. 120.54; and

    2. The agency has exceeded its grant of rule making authority, citation to which is required by s. 120.54(7); and

    3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

    4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

    5. The rule is arbitrary or capricious.

       
       

33. None of the deficiencies described exist when considering the rules in question. Therefore, the rules are not invalid exercises of delegated legislative authority.

    
    

34. In particular, Petitioner has argued that Section 120.54(13)(b), Florida Statutes, requires an agency to publish additional notice of any changes that are made to rules after they have been proposed. Section 120.54(13)(b), Florida Statutes, states:

    
    

    After the notice required in subsection (1) and prior to adoption, the agency may withdraw the rule in whole or in part or may make such changes in the rule as are supported by the record of public hearings held on the rule, technical changes which do not affect the substance of the rule, changes in response to written material relating to the rule received by the agency within 21 days after the notice and made a part of the record of the proceeding, or changes in response to a proposed objection by the committee. After adoption and before the effective date, a rule may be modified or withdrawn only in response to an objection

    by the committee or may be modified to extend the effective date by not more than

    60 days when the committee has notified the agency that an objection to the rule is being considered. The agency shall give notice of its decision to withdraw or modify a rule in the first available issue of the publication in which the original notice of rulemaking was

    published and shall notify the Department of State if the rule is required to be filed with the Department of State. After a rule has become effective, it may be repealed or amended only through regular rulemaking procedures.

    
    

35. That section identifies activities in rule making that transpire after notice has been given that an agency intends to adopt a rule. Before the adoption occurs the agency may withdraw the rule, in whole or in part. It may make changes to the rule supported by the record of public hearings held on the rule. It may make technical changes which do not affect the substance of the rule. It may make changes in response to written material relating to the rule that have been received by the agency within 21 days after the notice of intended agency action to adopt a rule, which written material has been made part of the record of the proceeding in the rule adoption process. It may make changes in response to the proposed objection of the Joint Administrative Procedures Committee. However, after the adoption has taken place and before the effective date of the rule, there is a limited opportunity to modify or withdraw the rule. That opportunity is associated with response by the agency to an objection by the Joint Administrative Procedures Committee or on the occasion of modifying the rule to extend the date upon which the rule becomes effective by not more than 60 days where the Joint Administrative Procedures Committee has notified the agency that an objection to the rule is under consideration. No other opportunities are presented to modify or withdraw the rule after adoption and before the effective date. Should the agency withdraw or modify a rule at the instigation of the Joint Administrative Procedures Committee after adoption and before the effective date, the agency must give notice of the decision to withdraw or modify the rule in the first available issue of the Florida Administrative Weekly where the agency had published the initial notice of rule making and the agency shall also notify the Department of State if the rule is required to be filed with the Department of State.

    
    

36. A second notice of decision is not required concerning changes to a rule that have been brought about after the notice set forth in Section 120.54(1), Florida Statutes, and prior to adoption, that have been described in the initial language within Section 120.54(13)(b), Florida Statutes. It is that category of change, after the notice and prior to adoption, which Petitioner contends must be noticed in the first available issue of the Florida Administrative Weekly following the agency decision to make such a change. That requirement is not incumbent upon Respondent in that the changes here were within the categories of changes contemplated to be made after the notice required in Section 120.54(1), Florida Statutes, and prior to rule adoption, as contrasted with modifications brought about in the category discussed in Section 120.54(13)(b), Florida Statutes, dealing with activities after adoption but before the effective date of the rule.

    
    

37. The decision in Department of Health and Rehabilitative Services v. Florida Medical Center, 578 So.2d 531 (Fla. 1st DCA 1991) does not promote a different conclusion of law. There the court criticized the agency for not allowing a meaningful point of entry to challenge a proposed rule prior to its adoption. The challenger there had been denied a reasonable point of entry because the agency had exceeded the authority granted to it by Section 120.54(13)(b), Florida Statutes, to change the proposed rule prior to adoption. Consequently the court concluded that the agency had to reinstitute the process of notice of proposed rule adoption to afford a meaningful point of entry for the challenger to contest changes which were not made in accordance with opportunities set forth in Section 120.54(13)(b), Florida Statutes.

38. This Petitioner has not claimed that the Respondent exceeded the opportunities described in Section 120.54(13)(b), Florida Statutes, for changing the proposed rule prior to adoption. Rather, Petitioner urges that the court case creates the requirement for further notice when any change is brought about prior to adoption. That argument unreasonably expands the court holding and is rejected. In summary, Petitioner has failed to show that the Respondent has exceeded the opportunity for changing the subject rules prior to adoption as described in Section 120.54(13)(b), Florida Statutes. Absent such showing the cited case has no application.

    
    

39. Section 350.01, Florida Statutes, in its relevant parts describes the membership of the Florida Public Service Commission and its duties, to include conduct of proceedings held before the Commission where it states:

    
    

    (1) The Florida Public Service Commission shall consist of five commissioners appointed pursuant to s. 350.031.

    * * *

    1. One member of the commission shall be elected by majority vote to serve as chairman for a term of 2 years. . . .

    2. The primary duty of the chairman is to serve as chief administrative officer of the commission; however, the chairman may participate in any proceedings pending

       before the commission when administrative duties and time permit. In order to distribute the workload and expedite the commission's calendar, the chairman, in addition to other administrative duties, has authority to assign the various proceedings pending before the commission requiring hearings to two or more commissioners or to the commission's office of hearing examiners under the supervision of the office of general counsel. Only those commissioners assigned

       to a proceeding requiring hearings are entitled to participate in the final decision of the commission as to that proceeding; provided, if only two commissioners are assigned to a proceeding requiring hearings and cannot agree on a final decision, the chairman shall cast the deciding vote for

       the final disposition of the proceeding. If more than two commissioners are assigned to any proceeding, a majority of the members assigned shall constitute a quorum and a majority vote of the members assigned shall be essential to final commission disposition of those proceedings requiring actual participation by the commissioners. If a commissioner becomes unavailable after assignment to a particular proceeding, the chairman shall assign a substitute commissioner. In those proceedings assigned to a hearing examiner, following the

       conclusion of the hearings, the designated hearing examiner is responsible for preparing recommendations for final disposition by a majority vote of the commission. A petition for reconsideration shall be voted upon by those commissioners participating in the final disposition of the proceeding.

    3. A majority of the commissioners may determine that the full commission shall sit in any proceeding. The public counsel or a person regulated by the Public Service Commission and substantially affected by the proceeding may file a petition that the proceeding be assigned to the full commission.

       Within 15 days of receipt by the commission of any petition or application, the full commission shall dispose of such petition by majority vote and render a written decision thereon prior to assignment of less than the full commission to a proceeding. . . .

    4. This section does not prohibit a commissioner, designated by the chairman, from conducting a hearing as provided under

    s. 120.57(1) or s. 350.631, and the rules of the commission adopted pursuant thereto.

    
    

40. A companion reference is made to hearings conducted by hearing officers with the Division of Administrative Hearings. That reference is Section 350.125 Florida Statutes, which states:

    
    

    Any provision of law to the contrary notwithstanding, the commission shall utilize hearing officers of the Division of Administrative Hearings of the Department of Administration to conduct hearings of the commission not assigned to members of the commission.

    
    

41. Section 350.01, Florida Statutes, creates the opportunity for the Commission to conduct proceedings as the full Commission or through two or more Commissioners acting in lieu of the full Commission. When two or more Commissioners, but not the full Commission, serve as the Commission in a proceeding requiring hearings, only those Commissioners assigned participate in the final decision to resolve the matter. In that setting the outcome constitutes the Commission's choice concerning that proceeding, not a recommendation for disposition. In a case assigned to two Commissioners who cannot agree on the disposition the Chairman casts the deciding vote for disposition in the proceeding. There the two members assigned to the proceeding have heard the case and are expected to render the final order together with the third voting member, the Chairman. In instances where more than two commissioners are assigned to the proceeding, there must be a majority of the members assigned to form a quorum before action may be taken in the case and a majority of all members assigned to a panel consisting of three or more persons is essential before final disposition is made in the proceeding.

42. Rule 25-21.005, Florida Administrative Code, further defines a quorum where it states:

    
    

    A majority of any Commission panel constitutes a quorum and the Commission cannot take formal action in the absence of a quorum. A majority vote of the quorum is essential to Commission action, and where only two commissioners are assigned to a proceeding and they do not agree on a final

    decision, the chairman of the Commission shall cast the deciding vote. Where the chairman

    is one of a two-member panel and the panel does not agree on a final decision, the matter shall be referred to the full Commission for disposition. In such an event the full Commission shall review the record as provided in Section 120.57(1)(b)9.

    
    

43. Rule 25-22.0355, Florida Administrative Code, specifically describes the assignment of formal hearings where it states:

    
    

    1. Formal Proceedings may be assigned by the Chairman to panels of two, three or five Commissioners or to a DOAH Hearing Officer or individual Commissioner for hearings as provided in Section 350.01, Florida Statutes.

       1. The assignment of proceedings shall be accomplished at the earliest practicable time but no later than 45 days after a case is docketed in any event.

       2. Assignment of cases to panels of two or three Commissioners shall be done randomly, unless the Chairman determines otherwise for good cause shown in a particular case.

       3. If a Commissioner becomes unavailable after assignment, he shall notify the Chairman, who shall make another assignment as soon as practicable.

    2. When a case is assigned for hearing to a panel of Commissioners, the hearing and deciding panels shall be identical. If a case is assigned to a DOAH Hearing Officer or individual Commissioner for a hearing, the case shall be assigned to the full Commission for decision.

    3. If a proceeding is assigned for hearing to a panel of two or three Commissioners or

       to a DOAH Hearing Officer or individual Commissioner, upon motion of a Commissioner

       or upon petition of those persons described in 350.01(7), a majority of the Commission shall decide that the full Commission shall hear such a case.

    4. Petitions seeking to have the full Commission sit in a particular case may be filed as authorized by Section 350.01(7).

       1. Applicants, petitioners or eligible parties filing a pleading who desire a hearing before the full Commission shall so specify in their initial pleading.

       2. Other persons eligible to make such a request shall do so within 15 days of notice of filing of the application or petition, or rendition of an order suspending proposed rates or of an order initiating a proceeding, whichever occurs first. In each case, these petitions/requests shall be disposed of by a majority of the Commission. Failure to file pleadings timely, and in the manner specified herein, may be considered just cause for denial of such pleadings.

    5. In cases filed pursuant to the provisions of Subsections 365.05(4), 366.06 (3), or 367.081(6), the initial decision whether to suspend all or part of the rates

       as filed shall be made by the full Commission, since whether a hearing will be required cannot be determined until that decision is made.

    6. Assignment of a proceeding to a panel does not preclude delegation of prehearing conferences or similar procedural matters to a single member of the panel.

    
    

44. Final orders by the Commission are described in Rule 25-22.059, Florida Administrative Code, where it states:

    
    

    1. If a hearing is conducted by the Commission, a final order shall be entered within ninety (90) days after the hearing or receipt of the hearing transcript, whichever is later. The final order shall include a caption, time and place of the hearing, appearances entered at the hearing, statement of the issues, findings of fact, conclusions of law, and statement of final Commission action.

    2. If the final hearing has been conducted by other than the Commission, the Commission shall issue its final order within ninety

    (90) days of receipt of the recommended order. The recommended order shall be considered at a public meeting. This proceeding shall not be a de novo review,

    but shall be confined to the record submitted to the Commission together with the recommended order.

    (3) If a party files exceptions to a recommended order or submits proposed findings of fact to the Commission, the final

    order shall include an explicit ruling on each exception and each proposed finding of fact; provided however, the Commission will not

    rule upon proposed findings of fact unless submitted in conformance with Rule 25-22.056 (2). The Commission is not required to make explicit rulings on subordinate, cumulative, immaterial or unnecessary proposed facts, and such proposed facts may be rejected in the final order by a statement that they are irrelevant or immaterial, or that competent substantial evidence supports the presiding officer's findings of facts which were contrary to those filed in the exceptions.

    
    

45. The process of moving for reconsideration is set out in Rule 25- 22.060, Florida Administrative Code, where it states:

    
    

    1. Scope and General Provisions.

       1. Any party to a proceeding who is adversely affected by an order of the Commission may file a motion for reconsideration of that order. The Commission will not entertain any motion for reconsideration of any order which disposes of a motion for reconsideration. The Commission will not entertain a motion for reconsideration of a Notice of Proposed Agency Action issued pursuant to Rule 25-22. 029, regardless of the form of the Notice and regardless of whether or not the proposed action has become effective under Rule

          25-22.029(6).

       2. A party may file a response to a motion for reconsideration and may file a cross motion for reconsideration. A party may file a response to a cross motion for reconsideration.

       3. A final order shall not be deemed rendered for the purpose of judicial review until the Commission disposes of any motion and cross motion for reconsideration of that order, but this provision does not serve automatically to stay the effectiveness of any such final order. The time period for filing a motion for reconsideration is not tolled by the filing of any other motion for reconsideration.

       4. Failure to file a timely motion for reconsideration, cross motion for reconsideration, or response, shall constitute waiver of the right to do so.

       5. A motion for reconsideration of an order adopting, repealing, or amending a rule shall be treated by the Commission as a petition to adopt, repeal, or amend a rule under S. 120.54(5), F.S., and Rule 25-22.012.

       6. Oral argument on any pleading filed under this rule shall be granted solely at the discretion of the Commission. A party

       who fails to file a written response to a point on reconsideration is precluded from responding to that point during the oral argument.

    2. Contents. Any motion or response filed pursuant to this rule shall contain a concise statement of the grounds for reconsideration, and the signature of counsel, if any.

    3. Time.

    1. A motion for reconsideration of a final order shall be filed within fifteen (15) days after issuance of the order.

    2. A motion for reconsideration of a nonfinal order may be filed at any time prior to the issuance of a final order. However, except for good cause shown, unless the motion is filed within fifteen (15) days

       after the issuance of the non-final order, the Commission may rule upon that motion in its final order.

    3. A response to a motion for reconsideration or a cross motion for reconsideration shall be served within seven

    (7) days of service of the motion for reconsideration to which the response or cross motion is directed. A response to a cross motion for reconsideration shall be served within seven (7) days of service of the cross motion.

    
    

46. In the context of Sections 350.01 and 350.125, Florida Statutes, and the other rules previously described, Respondent has promulgated the rules at issue here.

    
    

47. Rule 25-22.056(1)(a) and (b), Florida Administrative Code, states:

    
    

    (1) General Provisions.

    1. If a hearing under section 120.57, F.S., is conducted by a panel of two or more Commissioners or the full Commission, all parties may submit proposed findings of fact, conclusions of law, and recommended orders,

       or legal briefs on the issues within a time designated by the presiding officer.

    2. If a hearing under section 120.57, F.S., is conducted by a Commissioner sitting as a hearing officer, all parties may submit proposed findings of fact, conclusions of

    law, proposed recommended orders, which shall include a statement of the issues, and exceptions, within the time and in the format designated by the hearing officer.

48. Rule 25-22.056(4)(b), Florida Administrative Code, states:

    
    

    (4) Post-Hearing Filings When Hearing is Conducted by a Hearing Officer. If a hearing under section 120.57, F.S., is held before a Commissioner sitting as a hearing officer, the following provisions shall apply in addition to (1)(b) through (3) of this rule. Subsection (b) of the following provisions also applies when the hearing has been conducted by the Division of Administrative Hearings.

    * * *

    (b) Exceptions. Parties and staff may file exceptions to the recommended or proposed order with the Division of Records and Reporting within 14 days of service of the recommended order, and shall serve copies of any such exceptions upon all parties of

    record and staff. Such exceptions shall fully set forth the error claimed and the basis in law and fact therefore, with exceptions to findings of fact supported by citations to the record. A party's failure to serve or file timely written exceptions shall constitute a waiver of any objections to the recommended order.

    
    

49. Rule 25-22.058, Florida Administrative Code, states: 25-22.058 Oral Argument.

    
    

    1. The Commission may grant oral argument upon request of any party to a section 120.57,

       F.S. formal hearing. A request for oral argument shall be contained on a separate document and must accompany the pleading upon which argument is requested. The request shall state with particularity why oral argument would aid the Commission in

       comprehending and evaluating the issues before it. Failure to file a timely request for oral argument shall constitute waiver thereof.

    2. If granted, oral argument shall be conducted at a time and place determined by the Commission. Unless otherwise

       specified in the notice, oral argument shall be limited to 15 minutes to each party. The

       staff attorney may participate in oral argument.

    3. Requests for oral argument on recommended orders and exceptions pursuant to section 120.58(1)(e), F.S., must be filed no later than 10 days after exceptions are filed.

50. By the enactment of the questioned rules Respondent has acted in accordance with Section 120.53(1)(c), Florida Statutes, which commands the Respondent to: "adopt rules of procedure appropriate for the presentation of arguments concerning issues of law or policy, and for the presentation of evidence on any pertinent fact that may be in dispute."

    
    

51. Section 120.57(1)(b)4 and 6, Florida Administrative Code, states:

    
    

    (1) FORMAL PROCEEDINGS. --

    (b) In any case to which this subsection is applicable, the following procedures apply:

    * * *

    4. All parties shall have the opportunity to respond, to present evidence and argument on all issues involved, to conduct cross- examination and submit rebuttal evidence, submit proposed findings of fact and orders, to file exceptions to any order or hearing officer's recommended order and to be represented by council. When appropriate, the general public may be given an opportunity to present oral and written communications. If the agency proposes to consider such material, then all parties shall be given an opportunity to cross- examine or challenge or rebutted.

    * * *

    1. The record in a case governed by this subsection shall consist only of:

       1. All notices, pleadings, motions, and intermediate ruling;

       2. Evidence received or considered;

       3. A statement of matters officially recognized;

       4. Questions and proffers of proof in objections and rulings thereon;

       5. Proposed findings and exceptions;

       6. Any decision, opinion, proposed or recommended order, or report by the officer presiding at the hearing;

       7. All staff memoranda or data submitted to the hearing officer during the hearing or prior to its disposition, after notice of the submission to all parties, except

          communications by advisory staff as permitted under s. 120.66(1), if such communications are public records;

       8. All matters placed on the record after an ex parte communication pursuant to s. 120.66(2); and

       9. The official transcript.

    
    

52. The rules under consideration here do not contravene Section 120.57(1)(b)4 and 6, Florida Statutes, especially as it pertains to the right to file exceptions. This conclusion is reached in recognition that the Commission may act through two or more Commissioners in performing its duties and when doing so issues a final order in the person of the Commissioners responsible for

    conducting the proceeding and those Commissioners assigned are synonymous with the Commission as a governmental entity authorized to exercise final order authority. When two or more Commissioners serve there are no orders or recommended orders from which the parties may file exception to a reviewing agency which has final order authority. The rules that discuss proceedings conducted by individual Commissioners and hearing officers from the Division of Administrative Hearings allow exceptions to be filed.

    
    

53. Section 120.58(1)(e), Florida Statutes, states:

    
    

    If a majority of those who are to render final order have not heard the case or read the record, a decision adverse to a party other than the agency itself shall not be made until a proposed order is served upon the parties and they are given an opportunity

    to file exceptions and present briefs and oral arguments to those who are to render the decision. The proposed orders shall contain necessary findings of fact and conclusions of law and a reference to the source of each.

    The proposed orders shall be prepared by the individual who conducted the hearing, if available, or by one who has read the record. The parties by written stipulation may waive compliance with this paragraph. The provisions of this paragraph do not apply in the granting of parole or preliminary hearings for the revocation of parole.

    
    

54. Under the circumstances contemplated by Section 350.01, Florida Statutes, and as carried forward in the subject rules, in instances where two or more Commissioners conduct proceedings and are responsible for entering the final order, a majority of those Commissioners assigned have either heard the case or read the record before rendering the final order. Therefore, there is no requirement for serving a proposed order upon the parties and the parties are not afforded an opportunity to file exceptions to a proposed order. Again, the rules that discuss proceedings conducted by individual Commissioners and hearing officers from the Division of Administrative Hearings allow exceptions to be filed. The subject rules do not contravene Section 120.58(1)(e), Florida Statutes.

    
    

55. The rules in questions are rational, thus they are not arbitrary and capricious.

    
    

56. An agency is not obligated to follow Rule 28-5.404, Florida Administrative Code, in setting a deadline for filing exceptions to a recommended order. The time limit in that rule is twenty days from date of service of the recommended order. In this case Rule 25-22.056(1)(b), Florida Administrative Code, grants to the hearing officer, who is a member of the Commission, in a case not considered by the Commission, the opportunity to establish the deadline for submitting exceptions. That speaks to proposed recommended orders prepared by a single Commissioner serving as a hearing officer. The term proposed recommended order in Rule 25-22.056(1)(b), Florida Administrative Code, is synonymous with the term proposed order as set forth in Section 120.58(1)(e), Florida Statutes.

57. Rule 25-22.056(4)(b), Florida Administrative Code, related to the right to file exceptions in the instances where a single Commissioner serves as Hearing Officer uses the term proposed order and that terminology is consistent with Section 120.58(1)(e), Florida Statutes.

    
    

58. The description within Rule 25-22.056(4)(b), Florida Administrative Code, that describes a recommended order refers to cases in which a hearing officer from the Division of Administrative Hearings has conducted a formal hearing.

    
    

59. There are no inconsistencies within Rule 25-22.056 (1)(b), Florida Administrative Code, and Rule 25-22.056(4)(b), Florida Administrative Code, pertaining to time for filing exceptions to recommended orders, as alleged. There is a difference between those rules as it pertains to proposed orders entered by a single Commissioner. The first rule describes the exceptions being filed at a time designated by the Commission hearing officer and the latter rule describes filing of exceptions within 14 days of service of the proposed order. Contrary to the contention by Respondent in arguing this case, Rule 25- 22.056(4)(b), Florida Administrative Code, does pertain to proposed orders by a single Commissioner. Subsection (b) to the overall Rule 25-22.056(4), Florida Administrative Code, applies to a single Commissioner and also to a hearing officer from the Division of Administrative Hearings. Nonetheless, the two provisions discussing the filing deadline for offering exceptions to a proposed order prepared by a single Commissioner may be reconciled because the latter provision is read to apply on the occasion where the Commissioner serving as a hearing officer did not designate a deadline for filing exceptions prior to entering his or her proposed order.

    
    

60. Rule 25-22.058(1) and (2), Florida Administrative Code, relates to oral argument before two or more Commissioners serving as the Commission. As stated before in that setting a majority of the Commissioners have heard the case or read the record, and the opportunity for oral argument contemplated by Section 120.58(1)(e), Florida Statutes, in not mandated. Therefore, Rule 25- 22.058(1) and (2), Florida Administrative Code, does not contravene Section 120.58(1)(e), Florida Statutes.

    
    

61. Rule 25-22.058(3), Florida Administrative Code, addresses opportunities where a single Commissioner or a hearing officer from the Division of Administrative Hearings conducted a hearing. Respondent must comply with Section 120.58(1)(e), Florida Statutes, in that instance to include providing an opportunity for oral argument prior to the entry of a final order by the Commission, assuming the request for oral argument was timely made. Rule 25- 22.058(3), Florida Administrative Code, guarantees that right to request oral argument. It does not reserve discretion to the Commission in responding to the request, and it must be presumed the Commission will act consistent with existing law. Rule 25-22.058(3), Florida Administrative Code, does not contravene Section 120.58(1)(e), Florida Statutes.

    
    

62. The advisory memoranda prepared by Commission staff who do not testify at hearing are not documents which constitute proposed orders or recommended orders. They are contemplated by and consistent with Section 120.66(1)(b), Florida Statutes. The advisory memoranda are not matters about which exception may be taken.

    
    

63. It is not necessary to consider the alleged violation of Section 120.535, Florida Statutes, in that the subject rules under challenge have been upheld.

ORDER

Based upon the facts found and the conclusions of law reached, it is, ORDERED:

That the petition to determine the invalidity of Rules 25-22.056(1)(a) and (b), Florida Administrative Code, Rule 25-22.056(4)(b), Florida Administrative Code, and Rule 25-22.058, Florida Administrative Code, is denied and the case dismissed both as to challenges pursuant to Section 120.54 and Section 120.56, Florida Statutes, and the request for Section 120.535, Florida Statutes, hearing.

DONE and ORDERED this 27TH day of August, 1993, in Tallahassee, Florida.

CHARLES C. ADAMS

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 27th day of August, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2956RX

The following discussion is given concerning the proposed facts submitted by the parties:

Petitioner's Facts:

Paragraphs 1 through 11 are subordinate to facts found. Paragraphs 12 through 14 constitute legal argument.

Paragraph 15 is subordinate to facts found.

Paragraphs 16 through 18 are not necessary to the resolution of the dispute.

Paragraph 19 is subordinate to facts found.

Paragraph 20 is not necessary to the resolution of the dispute. Paragraphs 21 and 22 are subordinate to facts found.

Paragraph 23 is in keeping with Section 350.01(5), Florida Statutes, but is not necessary to the resolution of the dispute.

Paragraphs 24 and 25 are subordinate to facts found.

Paragraphs 26 through 28 are not necessary to the resolution of the dispute.

Respondent's Facts:

Paragraphs 1 through 13 are subordinate to facts found.

Paragraphs 14 through 20 are not necessary to the resolution of the dispute.

Paragraphs 22 through 24 are not necessary to the resolution of the dispute with the exception of the reference to receipt of copies of post-hearing submissions by Commissioners assigned to the proceeding. That reference is subordinate to facts found.

Paragraphs 25 through 28 are subordinate to facts found. Paragraph 29 is not necessary to the resolution of the dispute. Paragraphs 30 and 31 are subordinate to facts found.

Paragraph 32 is not necessary to the resolution of the dispute. Paragraphs 33 through 46 are subordinate to facts found.

COPIES FURNISHED:

Ross Stafford Burnaman, Esquire

Legal Environmental Assistance Foundation 1115 North Gadsden Street

Tallahassee, Florida 32303

Marsha E. Rule

Associate General Counsel

Florida Public Service Commission

106 East Gaines Street Tallahassee, Florida 32399

Jim Smith, Secretary of State Department of State

The Capitol

Tallahassee, Florida 32399-0250

Liz Cloud, Chief

Bureau of Administrative Code The Capitol - 1802

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32399-1300

Jesslyn Krouskrup

Joint Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

LEGAL ENVIRONMENTAL NOT FINAL UNTIL TIME EXPIRES TO

FOUNDATION, INC., FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

Appellant,

CASE NO. 93-3097

v. DOAH CASE NO. 93-2956RX

FLORIDA PUBLIC SERVICE COMMISSION,

Appellee.

/ Opinion filed August 4, 1994.

An appeal from an order of the Division of Administrative Hearings.

Ross Stafford Burnaman, Esquire, Legal Environmental Assistance Foundation, Inc., Tallahassee, for Appellant.

Robert D. Vandiver, General Counsel, Marsha E. Rule, Associate General Counsel and Christiana T. Moore, Associate General Counsel, Florida Public Service Commission, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

JOANOS, LAWRENCE and DAVIS, JJ., CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

To the Honorable, Charles Adams, Hearing Officer

Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled:

LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC.

Case No. 93-3097

vs. Your Case No. 93-2956RX

FLORIDA PUBLIC SERVICE COMMISSION

The attached opinion was rendered on August 4, 1994,

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehmer

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 22nd day of August, 1994.

Clerk, District Court of Appeal of Florida First District

Docket for Case No: 93-002956RX

Orders for Case No: 93-002956RX