FREDDY GARRIDO, APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLEE
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Garrido appealed the Department of Health and Rehabilitative Services' denial of his petition to amend an administrative rule requiring clinical laboratory technologist applicants to pass a proficiency examination. Garrido argued the examination was no longer being given, making the requirement unreasonable. The court remanded for fact-finding on the disputed issue of whether the examination still exists.
The court held that the validity of HRS's action depended upon the disputed factual question of whether the U.S. Public Health Service-approved examination was still being given, and therefore remanded the case for a fact-finding proceeding to resolve this factual dispute.
[1] A rulemaking petition may be denied without an evidentiary hearing if the agency disputes the factual basis of the petition and the validity of the agency's action depend…
[2] An agency must conduct a fact-finding proceeding when the validity of its action depends upon a disputed factual allegation made in a rulemaking petition.
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Join FLexlaw to unlock all legal intelligence“a requirement to pass an examination which is never given is per se unreasonable”
Establishes Garrido's core argument that an impossible regulatory requirement is inherently unreasonable
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Join FLexlaw to unlock all legal intelligenceGarrido filed a rulemaking petition seeking to amend Florida Administrative Code Rule 10D-61.25 by deleting the requirement that applicants for licens…
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ON MOTION FOR SUMMARY REVERSAL AND/OR REMAND
PER CURIAM.
Garrido files this appeal of a final order of the Department of Health and Rehabilitative Services (HRS) denying his rulemak-ing petition to amend Florida Administrative Code Rule 10D^fl.25. The proposed amendment would have deleted from the rule the requirement that an applicant for licensure as a clinical laboratory technologist achieve a satisfactory grade on a U. S. Public Health Service-approved proficiency examination. In support of his petition Garrido alleged that the examination was no longer being given. He thus argued that the rule should be amended to reflect these changed circumstances, for a requirement to pass an examination which is never given is per se unreasonable. Garrido also requested the opportunity to present evidence in support of the petition. In its final order HRS concluded that the examination was still being given and summarily denied the petition without holding an evidentiary hearing. By his motion Garrido now seeks summary reversal and/or remand with directions that HRS take evidence on the allegations of the petition which it disputes.
We find that the validity of HRS’s action depends upon the disputed fact of whether the U. S. Public Health Service-approved examination is, indeed, still being given. We therefore remand under the authority of Section 120.68(6), Florida Statutes, for a fact-finding proceeding on this point. The Department shall then enter an order setting forth separate findings of fact and conclusions of law as dictated by Section 120.59, Florida Statutes.
Garrido’s Alternative Motion for Remand is hereby GRANTED.
McCORD, BOOTH and SHAW, JJ., concur.
PER CURIAM.
On motion for rehearing, the Department seeks clarification as to whether it must hold a formal hearing under § 120.57(1), rather than an informal proceeding under § 120.57(2).
The only question of fact on the record before us is whether the requirement of Rule 10D-41.25 F.A.C., that the applicant take a U.S. Public Health Service approved proficiency exam, is obsolete because the exam is no longer given. If this issue can be resolved by agreement, then a § 120.-57(2) proceeding is appropriate to determine what rule amendment or rule making is required. If the factual issue cannot be resolved, however, a § 120.57(1) proceeding is required. In either event, the Department shall make specific findings supporting its action.
McCORD, BOOTH and SHAW, JJ., con-
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Sullivan v. Nw. Fla. Water Mgmt. Dist., 490 So. 2d 140 (Fla. 1st DCA 1986)…her the appellants will actually suffer the alleged injury, cannot be resolved without a fact-finding proceeding. Hence, under the authority of section 120.68(6), Florida Statutes, we remand for such a hearing. Garrido v. State Department of Health, 386 So. 2d 811 (Fla. 1st DCA 1980); Kuster Enterprises, Inc. v. State Department of Transportation, 347 So. 2d 1092 (Fla. 1st DCA 1977). On remand, the hearing officer, and ultimately DER, in the event an inquiry into the zone of interest is deemed necessary upon…
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Best W. Tivoli INN & Simms Enters., Inc. v. Dep't OF Transp., 448 So. 2d 1052 (Fla. 1st DCA 1984)…dgment upon the evidence. . Kuster Enterprises, Inc. v. Dept. of Transportation, 347 So. 2d 1092 (Fla. 1st DCA 1977); Postal Colony Co., Inc. v. Askew, 348 So. 2d 338, 339 (Fla. 1st DCA 1977); Garrido v. Dept. of Health and Rehabilitative Services, 386 So. 2d 811 (Fla. 1st DCA 1980); Florida Dept. of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 785 (Fla. 1st DCA 1981).…
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River Pines, Inc. v. Div. of Fla. Land Sales & Condos., 459 So. 2d 1133 (Fla. 3d DCA 1984)…ubdivision was exempt from regulation, therefore it was entitled to a formal hearing.1 Best Western Tivoli Inn v. Department of Transportation, 448 So. 2d 1052 (Fla. 1st DCA 1984); Garrido v. State, Department of Health and Rehabilitative Services, 386 So. 2d 811 (Fla. 1st DCA 1980); Kuster Enterprises, Inc. v. State Department of Transportation, 347 So. 2d 1092 (Fla. 1st DCA 1977); Section 120.68(6) Florida Statutes (1983). Reversed and remanded for a hearing. . The petitioner was entitled to a hearing…
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