BERTHOLD KINAST, APPELLANT,
v.
DEPARTMENT OF PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that a hearing officer's blanket rejection of proposed findings of fact, without specific rulings, violates statutory requirements and necessitates vacating the final order.
[1] An administrative order must include a ruling upon each proposed finding of fact submitted by a party, unless such findings are subordinate, cumulative, immaterial, or un…
[2] A hearing officer's blanket statement rejecting proposed findings of fact, without specific rulings on each, fails to comply with statutory requirements.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceKinast appealed a three-year suspension and fine of his contractor's license following an administrative complaint. The hearing officer issued a recom…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Administrative Procedure Act cases and more on FLexlaw
MILLS, Judge.
Kinast appeals from a final order suspending his residential contractor’s license for three years, to be followed by three years probation, and imposing a $1,000 fine. The order is vacated, and the cause remanded for entry of an amended final order. The proceedings against Kinast were commenced by a twelve-count administrative complaint alleging various violations of § 489.129(1), Florida Statutes (1981). Counts I — III and V-VII charged that Ki-nast had falsely sworn that certain construction bills had been paid, in order to obtain further construction monies. Counts IV and X alleged violation of applicable building codes in construction projects. Count VIII charged improper diversion of construction funds so as to render impossible the completion of the project for which the funds were intended and Count XI related to Kinast’s conviction for passing a worthless check to purchase building materials, i.e., conviction of a crime directly relating to the practice of contracting.
A hearing pursuant to § 120.57(1), Florida Statutes (1983), was requested by Ki-nast and granted. At the conclusion of the hearing, both Kinast and the Department submitted proposed recommended orders. Kinast’s proposed order took the form of a handwritten letter, which did not clearly delineate “findings of fact” and “conclusions of law.” However, the proposed facts were set off by the count number to which they related, and were clearly separated from the “conclusion.”
The recommended order of the hearing officer did not address each of Kinast’s proposed facts, despite the requirement of § 120.59(2), Florida Statutes (1983), that
[i]f, in accordance with agency rules, a party submitted proposed findings of fact or filed any written application or other request in connection with the proceeding, the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request.
Rather, the hearing officer stated at the outset of the recommended order that “to the extent the proposed findings of fact have not been adopted in this recommended order they have been rejected as not having been supported by the evidence, as irrelevant to the issues under consideration or as constituting unsupported argument of counsel or conclusions of law.” The order proceeded to find that all but one of the charges against Kinast had been proven by the agency, and imposed the sanctions discussed above. The final order adopted the recommended order in its entirety.
It has been held that the necessity for a ruling on each of a party’s proposed facts is obviated if “such findings [are] subordinate, cumulative, immaterial or unnecessary.” Wong v. Career Service Commission, 371 So. 2d 530, 531 (Fla. 1st DCA 1979). We cannot find that Kinast’s proposed facts fall within this exception. Specifically with regard to the counts of the complaint alleging false affidavits or endorsements to obtain additional funds, Ki-nast requested findings that the bills relied on by the agency to prove this charge were either not due or the jobs to which they applied were not complete at the time of Kinast’s signatures. No rulings were made as to these proposed findings, which, if true, would tend to negate the validity of the charges. Under these circumstances, it cannot be argued that the proposed facts were “immaterial or unnecessary.” Wong, supra.
This is not the first time the court has addressed a hearing officer’s failure to comply with § 120.59(2). The same type of “blanket” statement was used to dispose of proposed findings in Pelham v. Superintendent of the Wakulla County School Board, 436 So. 2d 951 (Fla. 1st DCA 1983). In rejecting the statement, the court held that
[t]his cannot be regarded as the kind of explicit ruling on a party’s proposed findings required by Section 120.59(2). Moreover, to the extent that the ... statement of the hearing officer can be regarded as referring to the ... proposed findings, it is impossible to tell whether those findings were omitted: 1) because they were found not to be supported by the evidence; or 2) because they were deemed to be immaterial, (citations omitted)
Id. at 953. The same objection applies to the statement made in this case. For that reason, the final order is vacated and the cause is remanded for the entry of an amended final order after submission of an amended recommended order by the hearing officer ruling on Kinast’s proposed findings. The Board shall have the opportunity to submit exceptions to the amended recommended order pursuant to § 120.-57(l)(b)(4), Florida Statutes (1983).
ERVIN, C.J., and ZEHMER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Life Care Ctrs. OF Am., Inc. v. Sawgrass Care Ctr., Inc., 683 So. 2d 609 (Fla. 1st DCA 1996)…agency’s duty to address proposed findings of fact was often discharged by adoption of a recommended order in which a hearing officer had addressed proposed findings of fact with specificity. But see Kinast v. Department of Professional Regulation, 458 So. 2d 1159 (Fla. 1st DCA 1984); Pelham v. Superintendent of School Bd. of Wakulla County, 436 So. 2d 951 (Fla. 1st DCA 1983). In the present case, the hearing officer— as he was then known4 — did essentially nothing more than “simply rule[ ] on all proposed f…
-
Island Harbor Beach Club, Ltd. v. Dep't OF Natural Res., 476 So. 2d 1350 (Fla. 1st DCA 1985)…n, 361 So. 2d 220 (Fla. 1st DCA 1978); Wong v. Career Service Commission, 371 So. 2d 530 (Fla. 1st DCA 1979); Pelham v. Superintendent of School Board of Wakulla County, 436 So. 2d 951 (Fla. 1st DCA 1983); Kinast v. Dept. of Professional Regulation, 458 So. 2d 1159 (Fla. 1st DCA 1984). DNR, on the other hand, argues that section 120.59(2) does not require the hearing officer to rule separately on each proposed finding submitted in a rule challenge proceeding because the requirements of that statute are inappli…1 / 2
-
Iturralde v. Dep't of Prof'l Reg., 484 So. 2d 1315 (Fla. 1st DCA 1986)…roposed are subordinate, cumulative, immaterial or unnecessary and the agency designates them as such. See Island Harbor Beach Club, Ltd. v. Dept. of Natural Resources, 476 So. 2d 1350 (Fla. 1st DCA 1985); Kinast v. Dept. of Professional Regulation, 458 So. 2d 1159 (Fla. 1st DCA 1984); Pelham v. Superintendent of School Board of Wakulla County, 436 So. 2d 951 (Fla. 1st DCA 1983); Wong v. Career Service Commission, 371 So. 2d 530 (Fla. 1st DCA 1979); Forrester v. Career Service Commission, 361 So. 2d 220 (Fla.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wong v. The Career Serv. Comm'n & the Dep't of Hwy. Safety & Motor Vehicles, 371 So. 2d 530 (Fla. 1st DCA 1979)
- Lifschitz v. Filomena Troccoli and Emilio Troccoli, 436 So. 2d 951 (Fla. 3d DCA 1983)