Dept. of Agriculture and Consumer Services v. Broward County, No. 1D02-0145

• Decision Date: 15 March 2002
• Docket Number: No. 1D02-0145, No. 1D02-0204.
• Citation: 810 So.2d 1056
• Parties: DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Petitioner, v. BROWARD COUNTY, City of Pompano Beach, City of Plantation, Miami-Date County, City of Coral Springs, Town of Davie, City of Delray Beach, City of Fort Lauderdale, City of Boca Raton, John M. and Patricia Haire, Laz and Ellen Schneider, Chester M. Himel, Alexander Christopher and Marcel Castin, Respondents.
• Court: Florida District Court of Appeals

810 So.2d 1056

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Petitioner, v. BROWARD COUNTY, City of Pompano Beach, City of Plantation, Miami-Date County, City of Coral Springs, Town of Davie, City of Delray Beach, City of Fort Lauderdale, City of Boca Raton, John M. and Patricia Haire, Laz and Ellen Schneider, Chester M. Himel, Alexander Christopher and Marcel Castin, Respondents.

Nos. 1D02-0145, 1D02-0204.

District Court of Appeal of Florida, First District.

March 15, 2002.

David C. Ashburn of Greenberg Traurig, Tallahassee; Jerold I. Budney of Greenberg Traurig, Ft. Lauderdale; Arthur J. England, Jr., Elliot H. Scherker and Elliot B. Kula of Greenberg Traurig, Miami, for petitioner.

Edward A. Dion, Broward County Attorney, Andrew J. Meyers, Chief Appellate Counsel, and Tamara M. Scrudders, Assistant County Attorney, Ft. Lauderdale; Robert A. Duvall, Assistant County Attorney, Miami; Susan Ruby, Delray Beach City Attorney, and R. Brian Shutt, Assistant City Attorney, Delray Beach; Gordon B. Linn, Pompano Beach City Attorney, and William J. Bosch, Senior Assistant City Attorney, Pompano Beach; Donald J. Lunny, Jr., Plantation City Attorney, and Brendan B. O'Brien of Brinkley, McNerney, Morgan, Solomon & Tatum, Ft. Lauderdale; Monroe D. Kiar, Davie Town Attorney, Davie; Samuel S. Goren, Coral Springs City Attorney, and Michael D. Cirullo of Goren, Cheroff, Doody & Ezrol, Ft. Lauderdale; Dennis E. Lyles, Ft. Lauderdale City Attorney, and Michael J. Pawelczyk, Assistant City Attorney, Ft. Lauderdale; Barry Silver, Boca Raton; John M. Haire and Patricia A. Haire, pro se, Ft. Lauderdale; Diana Freiser Grug, Boca Raton City Attorney, and John O. McKirchy, Assistant City Attorney, Boca Raton; Laz Schneider and Ellen Schneider, pro se, Ft. Lauderdale; and Dr. Chester M. Himel, pro se, Sun City Center, for respondents.

PER CURIAM.

Various local governments and individuals are engaged in a rule challenge proceeding before the Division of Administrative Hearings, contending that a proposed rule of the Department of Agriculture and Consumer Services relating to eradication of citrus canker is an invalid exercise of delegated legislative authority. In case number 1D02-0145, the department timely petitions this court for review of two orders of the Administrative Law Judge (ALJ). In the first order, the challengers' motion for a continuance of the hearing was granted. In the second, the department's motion for a protective order was denied. For the reasons set forth below, the petition is denied in part and granted in part. In case number 1D02-0204, the department seeks a writ of prohibition to review denial of a motion for disqualification of the ALJ. We consolidate these cases for our opinion and grant the petition for writ of prohibition.

We find it unnecessary to recite in detail the discovery disputes which have characterized the proceedings below. Given the ALJ's superior vantage point, we are unable to say that his discretion was abused when the continuance was granted. While there are significant reasons to proceed with the hearing as quickly as possible, they are outweighed by the parties' rights to due process, including full and fair discovery prior to the hearing. Accordingly, we deny, without further comment, the petition insofar as it relates to the granting of the continuance.

The challengers noticed the agency head, Commissioner Charles Bronson, for deposition. The department moved for a protective order, relying on this court's decision in State, Department of Health and Rehabilitative Services v. Brooke, 573 So.2d 363 (Fla. 1st DCA 1991). The department also offered a deputy commissioner, to whom authority for the program had been delegated, for deposition as a reasonable substitute for Commissioner Bronson. We agree with the department that the ALJ abused his discretion in denying the motion for protective order. In circumstances such as these, the agency head should not be subject to deposition, over objection, unless and until the opposing parties have exhausted other discovery and can demonstrate that the agency head is uniquely able to provide relevant information which cannot be obtained from other sources. To hold otherwise would, as argued by the department, subject agency heads to being deposed in virtually every rule challenge proceeding, to the detriment of the efficient operation of the agency in particular and state government as a whole.

We also find merit to the department's argument regarding its motion to disqualify the ALJ. A pro se individual who sought to appear as an intervenor wrote a letter to the ALJ dated January 1, 2002, and which began with the following paragraph:

Thank you for your time this morning. I am glad that you are interested in doing something about this Citrus Eradication program.

The letter went on to describe, in some detail, the writer's difficulties with employees of the department who were enforcing the department's policies in her geographic area. The department's motion for disqualification was supported by the affidavit of a deputy commissioner who stated that the agency interpreted the letter to say that the ALJ and the litigant had engaged in an ex parte communication and that in the course thereof the ALJ expressed a willingness to "do something" about the citrus canker eradication program. As a result, the department feared it would not receive a fair hearing before the ALJ. The challengers responded in opposition and offered the affidavit of the letter's author, who explained her use of the above-quoted language and stated that she had never met or spoken with the ALJ. The ALJ entered an order wherein it was stated that the facts of the motion for disqualification were taken as true but the motion was found to be legally insufficient and denied as such.

Our review of the ALJ's decision on the motion for disqualification is de novo. Sume v. State, 773 So.2d 600, 602 (Fla. 1st DCA 2000). The test for determining the legal sufficiency of a motion for disqualification is whether the facts alleged ...