93-002956RX Legal Environmental Assistance Foundation, Inc. vs. Florida Public Service Commission Status: Closed DOAH Final Order on Friday, August 27, 1993.

Summary: Rules of the public service commission dealing with post-hearing rights upheld. Notice requirements for rule promulgation met.

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,

120.56 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.

(a) 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.

(b) 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.

(c) 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:

(a) The agency has materially failed to

follow the applicable rule making procedure

set forth in s. 120.54; and

(b) The agency has exceeded its grant of

rule making authority, citation to which is

required by s. 120.54(7); and

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

s. 120.54(7);

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency; or

(e) 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.

* * *

(4) One member of the commission shall be

elected by majority vote to serve as

chairman for a term of 2 years. . . .

(5) 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.

(6) 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. . . .

(7) 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.

(a) 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.

(b) 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.

(c) 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).

(a) Applicants, petitioners or eligible

parties filing a pleading who desire a

hearing before the full Commission shall so

specify in their initial pleading.

(b) 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.

(a) 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).

(b) 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.

(c) 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.

(d) Failure to file a timely motion for

reconsideration, cross motion for

reconsideration, or response, shall

constitute waiver of the right to do so.

(e) 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.

(f) 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.

(a) A motion for reconsideration of a final

order shall be filed within fifteen (15) days

after issuance of the order.

(b) 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.

(c) 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.

(a) 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.

(b) 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.

* * *

6. The record in a case governed by this

subsection shall consist only of:

a. All notices, pleadings, motions, and

intermediate ruling;

b. Evidence received or considered;

c. A statement of matters officially

recognized;

d. Questions and proffers of proof in

objections and rulings thereon;

e. Proposed findings and exceptions;

f. Any decision, opinion, proposed or

recommended order, or report by the officer

presiding at the hearing;

g. 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;

h. All matters placed on the record after

an ex parte communication pursuant to s.

120.66(2); and

i. 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

[phone]

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