Schomer v. Department of Professional Regulation, Bd. of Optometry, 81-1805
| Decision Date | 10 August 1982 |
| Docket Number | No. 81-1805,81-1805 |
| Citation | 417 So.2d 1089 |
| Parties | Morton J. SCHOMER, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY, Appellee. |
| Court | Florida District Court of Appeals |
Michael B. Udell, North Miami Beach, for appellant.
Salvatore A. Carpino, Tallahassee, for appellee.
Before BARKDULL, HENDRY and BASKIN, JJ.
Appellant Morton Schomer seeks review of a final order of the Board of Optometry suspending his license for three months for violations of Chapter 463, Florida Statutes, and rules pursuant thereto. The only question presented which merits discussion is whether the Board's final order, adopting the recommended order of the hearing officer, departed from statutory requirements by failing to include individually stated findings of fact and conclusions of law, and failing to explicitly rule on each proposed finding of fact submitted by appellant pursuant to section 120.57(1)(b)4, Florida Statutes (1979).
Prior to the formal administrative hearing in this case, appellant filed proposed findings of fact and conclusions of law. Subsequent to the hearing a recommended order was entered, to which appellant filed exceptions. In a two paragraph final order, the Board adopted and incorporated by reference the findings of fact and conclusions of law contained in the hearing officer's recommended order.
Appellant's argument centers upon the following two provisions of section 120.59 of the Florida Administrative Procedure Act, Florida Statutes (1979), which state in relevant part:
(1) The final order in a proceeding which affects substantial interests shall be in writing or stated in the record and include findings of fact and conclusions of law separately stated....
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(2) If, in accordance with agency rules, a party submitted proposed findings of fact... the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request.
We find that the Board's final order does not violate the requirement of section 120.59(1) that findings of fact and conclusions of law be separately stated. The Board's order specifically adopted the findings of fact and conclusions of law of the hearing officer who submitted a detailed report and recommended order separately stating his findings, conclusions, and recommendations. Section 120.57(1)(b)9, Florida Statutes, clearly permits an agency to adopt the recommended order as the agency's final order or to reject or modify the conclusions of law. City of Panama City v. Florida Public Employees Relations Commission, 364 So.2d 109 (Fla. 1st DCA 1978); Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977). Since incorporation by reference of a hearing officer's report in an agency order is sufficiently expositive to satisfy statutory requirements, City of Orlando v. International Association of Fire Fighters, Local, 384 So.2d 941 (Fla. 5th DCA 1980); Gentry v. Department of Professional and Occupational Regulations, 283 So.2d 386 (Fla. 1st DCA 1973), the only remaining question is whether the hearing officer's disposition of appellant's proposed findings satisfied the statute.
The basis for the requirement in section 120.59(2) that an administrative party's proposed findings of fact be ruled upon is that without a fairly distinct treatment of the proposed findings the reviewing court must go through the entire record to determine whether the order corresponds to the evidence. This provision thus requires the agency to, on the record, discuss, treat and dispose of the major factual issues in the case.
As with all such rules, however, the courts will not elevate form over substance, and accordingly, the agency need not independently quote verbatim each proposed...
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...Judge, concurring. I concur in the majority opinion but would note, in accordance with Schomer v. Department of Professional Regulation, Board of Optometry, 417 So.2d 1089 (Fla. 3d DCA 1982), that explicit reference to proposed findings of fact, whether by numbered identification or otherwi......
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...with, not overlooked or concealed. Pelham v. Superintendent, 436 So.2d 951 (Fla.Dist.Ct.App.1983); Schomer v. Department of Professional Regulation, 417 So.2d 1089 (Fla.Dist.Ct.App.1982); Outdoor Circle v. Harold K. L. Castle Trust Estate, 4 Haw.App. 633, 675 P.2d 784 The Administrative Pro......
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Pelham v. Superintendent of School Bd. of Wakulla County, AP-348
...were "subordinate, cumulative, immaterial, or unnecessary." Wong v. Career Serv. Com'n, supra; compare Schomer v. Dept. of Professional Reg., 417 So.2d 1089 (Fla. 3rd DCA 1982). The final order of the appellee School Board is vacated and the cause remanded to appellee for the entry of an am......
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...by McDonald v. Department of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977), and Schomer v. Department of Professional Regulation, Board of Optometry, 417 So.2d 1089 (Fla. 3d DCA 1982). The agency's explicit ruling, which is not now challenged, renders appellant's further proposed fin......