MIAMI DADE COUNTY

v.

MIAMI JEWISH HOME & HOSPITAL

Before: WALSH, TRAWICK and SANTOVENIA, JJ.

WALSH, J.

Filing # 163477366 E-Filed 12/21/2022 12:47:46 However, we conclude that the order departed from the essential requirements of law by backdating a refund retroactively prior to the enactment date for the “Mixed-Use” rate and therefore quash the order in part.

[*3] Background The Water and Sewer Coded Rates of Billing for Water Usage The Miami-Dade Water and Sewer Department (“WASD”) sets its rates for water usage by applying different codified billing rates to properties. In 2008, WASD implemented the following billing codes: Residential Customer: Residential: a retail customer/account consisting of a single-family residence or duplex being served by a common meter. Multi-Family Dwellings: Multi-family: a retail customer/account consisting of more than two residential customers served by a common meter. Non-Residential: Non-Residential: a retail customer/account consisting of business, commercial industrial use, or any combination thereof.

The Miami Jewish Home & Hospital facilities at issue in this proceeding were coded under the “Non-Residential” rate. In 2018, the County implemented an additional billing rate: Mixed-Use Buildings:

MIXED USE: a retail customer/account consisting of more than two residential dwellings and non-residential activities served by a common meter in which permit application was submitted prior to October 1, 2016 (Ordinance No. 16-107) [*4] The “Mixed-Use” rate had an effective date of January 1, 2018. (Appendix to Response to Petition for Writ of Certiorari at Exhibit “E”) The Miami Jewish Home & Hospital Hazel Cypen Tower (HCT) and Irven Cypen Tower (ICT) The Miami Jewish Home & Hospital (“MJH”) owns and operates a licensed medical campus, assisted living facility, residential towers, and hospital facility located at 5066 Northeast Second Avenue in Miami. On the MJH campus, the Hazel Cypen Tower (“HCT”) is comprised of 113 apartments, a secured memory care unit, dining room, beauty salon and 24-hour nursing services, including emergency call buttons within each unit. The residents are tenants who sign a lease with MJH. The memory care floor, dining room, and beauty salon facilities exist solely for the benefit of the residents within the HCT.

Both the HCT and the Irven Cypen Tower (ICT), a residential building comprised of 85 apartments, were historically coded by WASD at the “Non-Residential” billing rate, a rate significantly higher than the residential rates in existence prior to 2018. [*5] On June 11, 2020, MJH requested that the Miami-Dade Water and Sewer Department (“WASD”) recode the HCT from a “Non- Residential” to a “Multi-Family” rate classification. This request was denied. MJH also requested that the Irvin Cypen Tower (“ICT”) be recoded to the “Multi-Family” rate. MJH’s request to recode the ICT to the “Multi-Family” rate was ultimately granted by WASD just prior to the hearing, but the refund for miscoding the ICT was only backdated to June 11, 2020, the date of the request. Although the ICT was recoded, MJH argued that the refund date for both the HCT and ICT should go back four years, in accordance with the WASD rule on refunds. On June 22, 2021, MHJ subsequently submitted a separate reclassification request to recode both buildings to the “Mixed-Rate” classification, but the County never responded to this request. Hearing A hearing was conducted before a WASD hearing officer. The Hearing Officer was required to determine the answers to the following questions prepared by the parties. First, “[w]hether the rate code used by the Department from the point the account was opened until the customer requested a recoding was in accordance with the [*6] Miami-Dade Water and Sewer Department’s policies, procedures, rules and regulations for rate classifications?” Second, “[i]s the customer entitled to a refund?” Third, “[i]f the customer is entitled to a refund, from what date?” When the hearing commenced, the Hearing Officer also read into the record a prepared opening statement, concluding as follows: In order to make a finding and conclude as a matter of law that the rate code is correct, I must find, after hearing and weighing all evidence presented by both parties, that the preponderance of the evidence indicates that the rate code used by the Department was the correct rate code.

If the preponderance of the evidence does not indicate that the rate code used by the Department was the correct rate code, I will decide that the proper rate code should have been – what the proper rate should have been and whether the Department should have granted a refund for any overpayment of the charges, water charges.

All right. That is the opening statement as prepared and presented for this hearing, and I am ready to proceed with the clerk swearing in all live parties, who will testify as to the facts concerning this case . . . .

(App. at p. 14) Neither party objected to this prepared opening. The parties prepared this opening statement for the Hearing Officer to read. [*7] At the hearing, the County’s witnesses testified that WASD abided an unwritten policy in which WASD coded all assisted living facilities with more than six beds as “Non-Residential.” The County’s witnesses all acknowledged that people lived in apartments in the HCT and that HCT, like all other ALFs, is residential in character. One witness, WASD employee Richard Reese, testified that the ALFs with more than six beds were coded “Non-Residential” based on state statute 419.001, but could not explain why. MJH’s witness, Jason Pincus, testified that residents at HCT use their addresses to receive mail, register to vote and register their driver’s licenses. Residents redecorate their apartments within the HCT to look like their homes, much in the same way they do at the ICT, the apartment building on campus. Residents are “tenants” and sign a residential lease with MJH. The memory care unit in the HCT is locked and not open to the public. No evidence was presented that the beauty salon nor any other component of the HCT was used by anyone other than the residents.

At the close of evidence, the County argued that the Hearing Officer was obligated to defer to the County’s alleged unwritten [*8] policy to treat HCT as “Non-Residential” for water billing. MJH specifically argued that the HCT should be classified at a “Mixed- Use” rate: ‘Now, to my mind, those are mutually exclusive. You’re residential or you’re not. If you have a residential component, and there is something else there, you are a mixed use.” (App. at p. 241) The County did not object to this argument nor did the County object to the Hearing Officer deciding the correct rate. MJH further argued that the problem with deferring to WASD’s adherence to an unwritten policy to code a residential building as non-residential is that such a policy contradicts what the County Commission enacted. “To say that . . . an assisted living facility has no residential value to it and therefore is a nonresidential is almost absurd. And so I am saying, suggesting to you, that at the very worst, these should be considered mixed-use.” (App. at p. 242) Again, the County did not object or raise any concerns that a determination of the correct rate would tread on its due process rights. Regarding whether the code applied by WASD followed “Miami- Dade Water and Sewer Department’s policies, procedures, rules and regulations for rate classifications,” the Hearing Officer opined: [*9] What we have is, “we’ve always done it that way,” or “it’s policy, trust me.” And that is so troublesome, that I can’t rely on it. I don’t have any competent and substantial evidence to that effect. So in answer to the question whether it was in compliance with these policies, procedures, rules and regulations, I don’t find I have competent and substantial evidence to say yes.”

(emphasis added) The Hearing Officer answered three predetermined questions as follows:

A. Whether the rate code used by the Department from the

point the account was opened until the customer requested a recoding was in accordance with the Miami- Dade Water and Sewer Department’s policies, procedures, rules and regulations for rate classifications? 1. ICT—No

2. HCT -- No

B. Is the customer entitled to a refund? 1. ICT – Yes

2. HCT -- Yes

C. If the customer is entitled to a refund, from what date? 1. ICT – June 11, 2016 2. HCT – June 11, 2016 Finally, the Hearing Officer discusssed at length the correct rate code that should have applied to the HCT. He noted that the amenities at the HCT – a call button, nurse services, a guard on the memory floor– were not very different from other residential buildings. The Hearing Officer concluded: [*10] I’m going to say that at least this is a mixed use, but I cannot see where just being an adult assistance facility – assisted living facility in any way fits into any of the definitions, other than mixed use. And as such, it would be interesting to see if in the future, that floor is segregated out in the building with a different meter, but that is not on our table today.

So I would say that it is not a non-residential unit, but that it should be re-coded, reclassified, to the mixed use.

(App. at 258) The Hearing Officer then turned to the partes: “I think I’ve covered all of the bases that I need to do. Can anybody tell me if I’ve missed anything? Hello?” (App. at 258) The County’s only response was “No, we just wanted to say thank you. We understand the ruling.” (App. at 260) Again, the County did not object or complain that this finding violated its due process rights. The Hearing Officer then read another prepared speech into the record. This speech was a duplicate of the speech made in opening. He stated: In order to make a finding and conclude as a matter of law that the rate code is correct, I must find, after hearing and weighing all the evidence presented by both parties, that the preponderance of the evidence indicated the rate code used by the Department was the correct rate code.

[*11] And if the preponderance does not indicate the rate code used by the Department as the correct rate code, I will decide the proper rate code and whether the Department should be granted a refund.

(App. 260-61) (emphasis added) Again, the County did not object or complain that somehow its due process rights were being violated by the Hearing Officer making the correct rate determination. Analysis This Court’s review is limited to determining (1) whether procedural due process was accorded, (2) whether the essential requirements of the law have been observed, and (3) whether the administrative findings and judgment are supported by competent substantial evidence. Miami-Dade Cty. v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003); City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982); Metro. Dade Cty. v. Blumenthal, 675 So. 2d 598, 601 (Fla. 3d DCA 1995). Hearing Officer’s Findings were Supported by Competent Substantial Evidence and Did Not Depart from the Essential Requirements of Law The County first argues that the Hearing Officer’s determination that WASD incorrectly coded the HCT as “Non-Residential” was unsupported by the record. The record was replete with testimony that HCT was residential in character, that the residents treated their [*12] units as their homes, and that the building’s amenities were for the use of the residents. Parsing the record for evidence supporting the County’s argument would result in the court impermissibly reweighing the evidence. See Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). We therefore find that there was competent, substantial evidence supporting the hearing Officer’s ruling that the HCT was coded incorrectly as a “Non-Residential” property. We likewise reject the County’s claim that the Hearing Officer failed to abide the essential requirements of law in refusing to recognize or abide by the County’s so-called “unwritten” policy to treat ALFs with more than 6 beds as “Non-Residential.” We do so for two reasons. First, the Hearing Officer did not refuse to apply an unwritten policy, as the County contends. Rather, he found the testimony by WASD witnesses that they applied an unwritten policy to lack credibility or to be entitled to no weight: “What we have is, ‘we’ve always done it that way,’ or ‘it’s policy, trust me.’ And that is so troublesome, that I can’t rely on it. I don’t have any competent and substantial evidence to that effect.” The Hearing Officer was entitled [*13] to reject the testimony regarding the existence of an unwritten policy as lacking credibility. See McNeill v. Pinellas County Sch. Bd., 678 So. 2d 476, 478 (Fla. 2d DCA 1996). Second, the County’s alleged unwritten policy conflicts with the plain language of the enacted ordinances.¹ “‘When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’” Lacayo v. Versailles Gardens I Condo. Assn., Inc., 325 So. 3d 295 (Fla. 3d DCA 2021) (quoting A.R. Douglass, Inc., v. McRainey, 137 So. 157, 158 (Fla. 1931)). Under the County’s codified rate schedule, the code “Non-Residential” is defined [*14] as “a retail customer/ account consisting of business, commercial industrial use, or any combination thereof.” The plain and obvious meaning of the term non-residential is that it is not residential. HCT is residential. All witnesses testified that HCT’s units were the homes or residences of its residents and that HCT was “residential” in character. HCT contains a beauty salon, dining facility, call button function, and locked memory floor for the benefit of the residents of the HCT. None of these amenities transform the HCT to a “Non- Residential” building within the plain language of the enacted rate. The plain and obvious meaning of the enacted definition of nonresidential -- “a retail customer/ account consisting of business, commercial industrial use, or any combination thereof” -- is that the facility does not include residences. And the evidence was uncontroverted that HCT was a residential building. Looking at it another way, the County complains that it had an “unwritten policy” to code residential facilities with more than 6 beds as “Non-Residential.” The County argues that if it proved this policy, the Hearing Officer had no choice but to find that HCT was properly coded “Non-Residential.” But the question asked of the Hearing Officer was not whether WASD coded the HCT in accord with its [*15] policy, unwritten or otherwise. Instead, the question presented was whether WASD’s denial of recoding the HCT was “in accordance with the Miami-Dade Water and Sewer Department’s policies, procedures, rules and regulations for rate classifications?” Even if coding complied with a so-called unwritten policy, it did not comply with the enacted regulation, that being the ordinance that codified the rates. As such, there is no departure from the essential requirements of law, as the rate used by WASD violated a County ordinance, a “regulation[] for rate classifications.” We also reject MJH’s Cross-Petition’s claim that the Hearing Officer’s order departed from the essential requirements of law because he was required to recognize a policy which would have required re-coding the HCT at the “Multi-Family” rate and its intertwined claim that this conclusion was unsupported by competent substantial evidence.² The findings MJH urges would [*16] invite re-weighing the evidence, something we are forbidden to do. See Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) We decline to grant certiorari on these claims. Due Process The County argues that by exceeding the agreed-upon scope of the hearing and making an additional determination that the “Mixed- Use” rate applied to the HCT, the Hearing Officer violated its due process rights. According to the County, the Hearing Officer was only permitted to address the three questions submitted by the parties in an agreed-upon form of order which read as follows:

A. Whether the rate code used by the Department from the

point the account was opened until the customer requested a recoding was in accordance with the Miami- Dade Water and Sewer Department’s policies, procedures, rules and regulations for rate classifications? B. Is the customer entitled to a refund? C. If the customer is entitled to a refund, from what date?

The record below belies the County’s claim of a due process violation. From the inception of the hearing, the Hearing Officer made clear that if he found that WASD used the wrong billing rate, he would determine what the correct rate should have been.

Prior to evidence being presented, in a speech prepared by the parties, the Hearing Officer stated, [*17] If the preponderance of the evidence does not indicate that the rate code used by the Department was the correct rate code, I will decide that the proper rate code should have been – what the proper rate should have been and whether the Department should have granted a refund for any overpayment of the charges, water charges.

The County did not speak up or object.

At the conclusion of the evidence, MJH argued To say that . . . an assisted living facility has no residential value to it and therefore is a nonresidential is almost absurd. And so I am saying, suggesting to you, that at the very worst, these should be considered mixed-use.

Again, the County did not speak up or object. After argument, the Hearing Officer made his finding that the HCT should have been classified at the “Mixed-Use” rate. After making these findings, he invited comment: “I think I’ve covered all of the bases that I need to do. Can anybody tell me if I’ve missed anything? Hello?” (App. at 258) The County’s only response was “No, we just wanted to say thank you. We understand the ruling.” (App. at 260) Finally, after making the findings, the Hearing Officer again read a prepared speech, including the remarks: And if the preponderance does not indicate the rate code used by the Department as the correct rate code, I will [*18] decide the proper rate code and whether the Department should be granted a refund.

“Generally, due process requires fair notice and a real opportunity to be heard and defend in an orderly procedure before judgement is rendered.” Richard v. Bank of America, N.A., 258 So. 3d 485, 487 (Fla. 4th DCA 2018) (citation omitted). At no time did the County object, complain that the Hearing Officer exceeded an agreed-upon scope of the hearing, or tell the Hearing Officer that in making this finding he violated the County’s due process rights. Certainly, the County had a “real opportunity to be heard” on the issue of the rate to be applied. Id. Accordingly, the record refutes the County’s assertion that its due process rights were violated. From the outset, the County was put on notice of the scope of the hearing and did not seek to limit the scope of the hearing.

Furthermore, the Hearing Officer was not free to make a piecemeal ruling as the County suggests. WASD hearing rules require that the Hearing Officer take final agency action on any billing dispute matter. WASD rules do not permit piecemeal rulings. WASD Rule 2.07(14) provides: The Hearing Officer will consider all facts, evidence, testimony, and other information presented at the hearing [*19] and will make an appropriate ruling. In addition, the Hearing Officer’s ruling will be conveyed in writing to the Customer. The ruling of the Hearing Officer will constitute final Department action on the matter. No customer shall be entitled to a hearing for disputes over billings more than four years old. The Hearing Officer shall not recommend adjustments of billings over four years old.

Except as to those matters reviewable by the County Commission as expressly set forth in the Code of Miami- Dade County, a decision of the Hearing Officer shall constitute final administrative action from which there shall be no further administrative appeal. Any person aggrieved by the decision of the Hearing Officer may seek review in the Circuit Court for Miami-Dade County, Florida, or a Court having competent jurisdiction in accordance with Florida law.

(emphasis added). Thus, under WASD rules, a hearing officer is required to take “final administrative action.” Decisions may not be made piecemeal. If we were to accept the County’s due process argument, we would not have jurisdiction to hear these petitions. We have jurisdiction to review final administrative action, akin to plenary appeal. We have no jurisdiction to review a non-final finding. See Dusseau v. Metro. Dade County Bd. of County Com'rs, 794 So. 2d 1270, 1273-74 (Fla. 2001) (“Although termed “certiorari” review, review at this level is not discretionary but rather is a matter of right and is akin in many respects to a plenary appeal”); Haines City [*20] Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) (same); De Groot v. Sheffield, 95 So. 2d 912, 915 (Fla. 1957) (“[T]he ultimate judgment of such official or board based on the showing made at the hearing is subject to appropriate judicial review.”) (emphasis added). Therefore, we find that there was no due process violation here and decline to grant certiorari on this ground. Departure from the Essential Requirements of Law in Backdating the Reclassification of HCT The County next argues that backdating a refund for improperly coding the HCT as “Non-Residential” to June 11, 2016 (four years before the request to re-code to the “Multi-Family” rate) was a departure from the essential requirements of law. We agree and quash this portion of the order. Rule 2.10(2) of the WASD Rules requires that refunds for overbilling shall be backdated “to the earliest date for which the Department has meter readings . . . but in no event shall the Department re-bill or provide credits for periods beyond four years.” June 11, 2016, the date determined by the Hearing Officer, is four years before the date of the MJH request. However, the date of June [*21] 11, 2016, predates the County’s January¹, 2018 enactment date for WASD’s new “Mixed-Rate” classification. Under the order, the County would be required to refund MJH for the difference between the “Mixed-Use” and “Non-Residential” rates for a time period prior to the enactment of the “Mixed-Use” classification. Backdating the refund for HCT to a time before the “Mixed- Use” classification was enacted would retroactively apply the ordinance. To determine whether an ordinance may be retroactively applied, we apply a two-prong test. Fla. Ins. Guar. Ass’n, Inc. v. Devon Neighborhood Ass’n Inc., 67 So. 3d 187, 193-194 (Fla. 2011). First, we must determine if there is evidence of legislative intent to apply the statute retroactively. Only if there is such legislative intent, we then must determine whether retroactive application is constitutionally permissible. Id. at 194. Here, there is no evidence of legislative intent to apply the enacting ordinance retroactively. Implementing order 4-110 enacting the “Mixed-Use” rate has an effective date of January¹, 2018. (App. to Cross-Pet. at Exh. C) Nothing in the ordinance stated an intent to apply the new rate retroactively. The Hearing Officer therefore departed from the essential requirements of law in [*22] backdating the refund prior to the date the new rate was enacted. Accordingly, we quash this portion of the order below.

SANTOVENIA and TRAWICK, JJ., CONCUR. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL [*23] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]