SOUTH FLA. CARGO CARRIERS v. State

• Citation: 738 So.2d 391
• Decision Date: 23 June 1999
• Docket Number: No. 98-1624.,98-1624.
• Parties: SOUTH FLORIDA CARGO CARRIERS ASSOCIATION, INC., Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION, Pilotage Rate Review Board and Port Everglades Pilots Association, Appellees.
• Court: Court of Appeal of Florida (US)

738 So.2d 391

SOUTH FLORIDA CARGO CARRIERS ASSOCIATION, INC., Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION, Pilotage Rate Review Board and Port Everglades Pilots Association, Appellees.

No. 98-1624.

District Court of Appeal of Florida, Third District.

June 23, 1999.

Rehearing Denied September 8, 1999.

Gunster, Yoakley, Valdes-Fauli & Stewart and William L. Hyde and Rebecca A. O'Hara (Tallahassee), for appellant.

Robert A. Butterworth, Attorney General and John J. Rimes, III, Assistant Attorney General (Tallahassee), for appellee Pilotage Rate Review Board

Akerman, Senterfitt & Eidson and Margaret D. Mathews (Tampa) and E. Gary Early (Tallahassee), for appellee Port Everglades Pilots Association.

Before SCHWARTZ, C.J., and SHEVIN and SORONDO, JJ.

SCHWARTZ, Chief Judge.

The South Florida Cargo Carriers Association seeks review of the Final Order of the Pilotage Rate Review Board, set out in the appendix, which, pursuant to the rate making authority granted by section 310.151, Florida Statutes (1997), ordered an increase in the rates the carriers must pay members of the appellee Port Everglades Pilots' Association for their services at the port of Port Everglades. The Carriers contend that the Board improperly substituted its judgment for that of an administrative law judge who had, after a section 120.57(1), Florida Statutes (1997), hearing, recommended that the pilotage rates be de creased instead. We affirm.

In this court the Carriers essentially make two separate, but closely intertwined, arguments for reversal. As to the claim that the Board improperly sustained several of the Pilots' exceptions to various findings and conclusions of the ALJ which tended to denigrate the importance and value of the work of the pilots at Port Everglades (see final order at pages 10-14), we find that these contentions are either without factual merit, do not involve issues which affect the ultimate result and thus present no more than "harmless administrative error," § 120.68(7), Fla. Stat. (1997); Department of Bus. Regulation, Div. of Pari-Mutuel Wagering v. Hyman, 417 So.2d 671 (Fla.1982), or both.

Its much more significant argument, however, is that the case falls on the fact-finding rather than the policy-making side of the divide described in McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), between those administrative decisions in which the ALJ's nisi prius role predominates and those in which the expertise of the reviewing agency should prevail. From this, the appellant claims that the Board's ultimate conclusion as to the appropriate pilotage rate represents an unlawful replacement of its own views for those of the ALJ. Although we confess that we have found the process helpful in our own consideration of a difficult problem in a field not so familiar to this court as to others, we see no reason to burden the Southern Reporter with a tedious reinvention of that which has already been well-crafted by that famous wheelwright, Judge Robert Smith, in McDonald, 346 So.2d at 569. It is enough to say that, largely for the reasons stated by the Board itself, and primarily on the authority of the Florida rate making decisions, see Chiles v. Public Serv. Comm'n Nominating Council, 573 So.2d 829, 832 (Fla.1991)("[R]atemaking is, in our view, a legislative, rather than an executive or judicial, function...."); Rosalind Holding Co. v. Orlando Utilities Comm'n, 402 So.2d 1209 (Fla. 5th DCA 1981), review denied, 412 So.2d 469 (Fla.1982); City of Pompano Beach v. Oltman, 389 So.2d 283, 286 (Fla. 4th DCA 1980)("Courts may not engage in rate making, since this is an unlawful incursion in the legislative arena."), review denied, 399 So.2d 1144 (Fla. 1981)¹; see also Utilities, Inc. v. Florida Public Serv. Comm'n, 420 So.2d 331 (Fla. 1st DCA 1982), we agree with the Board that resolution of the ultimate issue in the case, the determination of fair pilotage rates, was conferred by the legislature upon it and not the ALJ. Because the Board therefore properly asserted its authority over that issue, and because its conclusions (see final order at pages 22-33) are supported by a reasonable view of the record and the underlying policy considerations which it had a right to find and adopt, and with which this court may not interfere, Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); McDonald, 346 So.2d at 569, the order below is

Affirmed.

APPENDIX

STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION PILOTAGE RATE REVIEW BOARD

PRRB CASE NO. 96-03, 96-03A and 96-03B

DOAH Case Numbers 97-3656 and 97-3657

In Re: Application of Port Everglades Pilots' Association for Rate Increase In Port Everglades

In Re: Application of South Florida Cargo Carriers Association, Inc. for Rate Decrease in Port Everglades

In Re: Application of Discovery Sun Partnership d/b/a Discovery Cruise Line for Rate Decrease in Port Everglades²

FINAL ORDER

This cause came on to be heard before the Pilotage Rate Review Board (Board) at regularly scheduled meetings held in Fort Lauderdale, Florida on April 29, 1998 and in Boca Grande, Florida on May 19, 1998, pursuant to a Recommended Order entered by ALJ Linda M. Rigot on February 24, 1998.

Exceptions to the Recommended Order were filed by the Port Everglades Pilots' Association (PEPA). Responses to the Exceptions were filed by the South Florida Cargo Carriers Association, Inc. (SFCCA). Both PEPA and SFCCA appeared at the Fort Lauderdale meeting through counsel and extensive argument was heard on the Exceptions. The Board's rulings on the Exceptions, made after a review of the complete record (including the prehearing stipulation, the transcript, exhibits and the submissions of the parties), are set forth below.

I

A

Preliminary Statement-The Standards to be Applied in Reviewing the Findings of Fact Contained in a Recommended Order

It is a settled rule of administrative law in this state that the findings of fact of an administrative law judge may not be rejected or modified, "unless the agency first determines from a review of the entire record, and states with particularity in order, that the findings of fact were not based on competent substantial evidence." Section 120.57(1)(j), Florida Statutes. Accord Belleau v. Dept. of Environmental Protection, 695 So.2d 1305 (Fla. 1st DCA 1997)

; Martuccio v. Dept. of Professional Regulation, 622 So.2d 607 (Fla. 1st DCA 1993); Fla. Dept. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987).

Florida case law holds that an agency reviewing a recommended order is not authorized to reevaluate the quantity and quality of the evidence presented as at DOAH final hearing beyond a determination of whether the evidence is competent and substantial. Brogan v. Carter, 671 So.2d 822, 823 (Fla. 1st DCA 1996). A reviewing agency may not reweigh the evidence, resolve the conflicts therein, or judge the credibility of witnesses, as those are evidentiary matters within the province of the ALJ as the finder of the facts. Martuccio, supra, at 609; Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH Proceedings discloses any competent substantial evidence to support the findings of fact made by the ALJ in the Recommended Order, the Board is bound by such factual findings. Bradley, supra, at 1123.

There is, however, a fundamental difference, first elucidated in McDonald v. Department of Banking and Finance, 346 So.2d 569, 578-579 (Fla. 1st DCA 1977), between evidentiary findings of fact, which involve resolving conflicts of perception, judging credibility of witnesses and drawing permissible inferences therefrom and those ultimate factual findings which are usually couched in terms of statutory or rule language and which resolve the legal issues between the parties.³

As the court in McDonald, supra, stated at 346 So.2d at 579 an ALJ's findings as to credibility, weight and other matters which are susceptible of "ordinary methods of proof [sic] "should be accorded great deference. However, the court went on to hold that an ALJ's findings regarding matters of opinion and issues which must be resolved by reference to agency expertise, because they are "infused by policy considerations," are entitled to agency deference but with "correspondingly less weight."⁴

The agency must be circumspect, however, in exercising its authority to reject an ALJ's findings even if they could be labeled as "ultimate findings of fact." If factual disputes underlying an ultimate issue of fact can be resolved by "ordinary methods of proof" then an agency may not reject or modify an ALJ's ultimate factual findings without finding that they also were not supported by competent substantial evidence and complying with the requirements of Section 120.57(1); see Harac v. Dept. of Prof. Reg. Board of Architecture, 484 So.2d 1333 (Fla. 3rd DCA 1986); Dunham v. Highlands County School Board, 652 So.2d 894 (Fla. 2nd DCA 1995).

If in an appropriate instance, the question as to what legal standards should be applied to ultimately resolve the issues involves policy considerations (at least to the extent an agency has discretion to interpret its statutes and rules), it follows that an ALJ's findings as to such mixed questions of law and fact should be entitled to weight only to the extent they correctly apply the agency's interpretation of its statutory mandate, not simply the interpretation of that mandate by the witnesses at the hearing or even by the ALJ herself.⁵

The policy reason for not allowing an ALJ's ultimate findings of fact to always obtain practicable immutability and thus usurp an agency's ability to explicate its positions and interpretations of law in its own jurisprudence, is clear. Agencies, such as the Board, are appointed to oversee and implement the police power of the state and have obtained...