Department of Environmental Regulation v. Leon County, BB--459

• Citation: 344 So.2d 297
• Decision Date: 07 April 1977
• Docket Number: No. BB--459,BB--459
• Parties: DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, v. LEON COUNTY et al., Respondents.
• Court: Court of Appeal of Florida (US)

Page 297

344 So.2d 297

DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, v. LEON COUNTY et al., Respondents.

No. BB--459.

District Court of Appeal of Florida, First District.

April 7, 1977.

David Gluckman, Crescent City, for petitioner.

F. E. Steinmeyer, III, of Folson & Steinmeyer, J. Lewis Hall, of Hall & Booth, J. Marshall Conrad and Michael Pearce Dodson, of Ausley, McMullen, McGehee, Carothers & Proctor, Robert M. Ervin, Joseph C. Jacobs and Robert J. Angerer of Ervin, Varn, Jacobs & Odom, Tallahassee, George Levine, M. Julian Proctor, Jr., of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for respondents.

McCORD, Judge.

The Department of Environmental Regulation (hereafter referred to as DER) petitions to review interlocutory orders of a hearing officer of the Division of Administrative Hearings denying motions of petitioner to dismiss and to strike and overruling petitioner's objections to discovery. We entertain the petition because we find that later review of final agency action will not provide an adequate remedy to petitioner. § 120.68(1), Fla.Stat. (Supp.1976).

We confine our interlocutory review, however, to the questioned Power of the hearing officer to rule upon the motions and the objections presented to him. Petitioner contends that a ruling upon the questions raised by such motions and objections constitutes an unconstitutional exercise of judicial power prohibited to the executive branch of government by Art. V, § 1, of the Florida Constitution; that under the doctrine of separation of powers as mandated by Art. II, § 3; Art. III, § 1; and Art. V, § 1, of the Florida Constitution, the hearing officer does not have judicial power, such power being vested only in the courts. We disagree that such is the exercise of judicial power. We fully resolved this question by our opinion in State of Florida, Department of Administration v. Stevens, Fla.App., 344 So.2d 290, opinion filed April 6, 1977. We will, therefore, not reiterate here the analysis we made there. Suffice it to say that such power is quasi-judicial power which the legislature has legally vested in the hearing officer under Ch. 120.

There is in this case, however, an additional element which was not involved in State v. Stevens. There we said that a hearing officer does not have power to adjudicate the constitutionality of a rule, such power being a judicial rather than a quasi-judicial power. In the case sub judice, we are concerned with a Proposed rule rather than a rule. This proceeding is one brought by DER under § 120.53, Fla.Stat. (Supp.1976), to adopt a proposed rule as a rule of that Department. The hearing officer, in the exercise of quasi-judicial authority in furtherance of the administrative rule-making process, can determine whether or not a Proposed rule violates the Florida Constitution if adopted, such determination being subject to judicial review. The hearing officer's determination is similar to a determination by the legislature or a legislative committee that it will not favorably report or enact proposed legislation because it considers that if enacted the legislation would be unconstitutional. Once a statute or rule has been enacted or adopted, however, the determination of the constitutionality or unconstitutionality thereof requires exercise of judicial power which is vested only in the courts.

Previously the courts have declined to entertain actions brought to test the validity of Proposed rules because until a rule has been finally adopted by an administrative agency and has become effective, there has been no final agency action and thus no exhaustion of administrative remedies by an interested party. See Atlantic Coast Line Railroad Company v. Carter, 66 So.2d 480 (Fla.1953). Under the old Administrative Procedure Act (Ch. 120, Fla.Stat. (1973)), the procedure for rule adoption was reposed entirely within the particular agency proposing to adopt the rule. Now, however, under the new Administrative Procedure Act (Ch. 120, Fla.Stat. (1975) as amended by Fla.Stat. (Supp.1976)) the legislature has, by § 120.54, established...