State, Dept. of Administration v. Stevens, s. CC--101

• Decision Date: 06 April 1977
• Docket Number: CC--156,Nos. CC--101,s. CC--101
• Citation: 344 So.2d 290
• Parties: STATE of Florida, DEPARTMENT OF ADMINISTRATION, Petitioner, v. J. Richard STEVENS and Department of Health and Rehabilitative Services, Respondents. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. J. Richard STEVENS, Respondent.
• Court: Florida District Court of Appeals

Page 290

344 So.2d 290

STATE of Florida, DEPARTMENT OF ADMINISTRATION, Petitioner, v. J. Richard STEVENS and Department of Health and Rehabilitative Services, Respondents.

STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. J. Richard STEVENS, Respondent.

Nos. CC--101, CC--156.

District Court of Appeal of Florida, First District.

April 6, 1977.

David V. Kerns, Tallahassee, for State of Florida, Dept. of Administration (petitioner in No. CC--101).

Douglas E. Whitney, Tallahassee, for State of Florida, Dept. of Health and Rehabilitative Services (petitioner in No. CC--156 and respondent in No. CC--101).

Howell L. Ferguson, of Macfarlane, Ferguson, Allison & Kelly, Tallahassee, for J. Richard Stevens (respondent in Nos. CC--101 and CC--156).

McCORD, Judge.

These are two consolidated petitions for review of administrative action taken from a final order of Kenneth G. Oertel, Director of the Division of Administrative Hearings (as hearing officer) entered on the petition of J. Richard Stevens (one of the respondents herein) for administrative determination of rule-invalidity under the provisions of § 120.56, Fla.Stat. (1975). (We have removed from the captions of these review proceedings State of Florida Department of Administration, Division of Administrative Hearings as it is not a proper party hereto.) After a full hearing pursuant to the statute, the hearing officer, by his final order, ruled that a Directive of the Department of Health and Rehabilitative Services (hereafter referred to as HRS) and Guidelines (upon which the directive was based) promulgated by the Department of Administration are rules as that term is defined by § 120.52(14), Fla.Stat. (1975); that they were not adopted pursuant to the dictates of Ch. 120, Fla.Stat. (1975), and in addition are in conflict with § 110.061(1), Fla.Stat. (1975). Petitioners here, DOA and HRS, contend primarily that the hearing officer was without authority to make a judicial determination that the DOA Guidelines and HRS Directive are rules because such determination involves the exercise of a judicial power which may only be exercised by a court. Petitioners further contend that if the Guidelines and Directive were rules, the hearing officer operated beyond the scope of his delegated authority in determining there was no valid adoption of them. We disagree with the contentions of petitioners and affirm.

Respondent, Dr. J. Richard Stevens, was laid off from his position as a research associate with permanent career service status with the Division of Aging of HRS on July 21, 1975. Another employee, Dr. James H. Williams, at that time held a position with the Bureau of Alcoholic Rehabilitation of HRS. The legislature, through the Appropriation Act of 1975 (Ch. 75--280, Laws of Florida (1975)), specifically abolished and did not fund the position held by Dr. Williams. As a result of the abolishment of his position, Dr. Williams was reassigned by HRS to Dr. Stevens' position because Dr. Williams had a greater number of 'retention points' under the lay-off policy of HRS than did Dr. Stevens. The lay-off policy is set forth in the aforesaid directive entitled 'Department of Health and Rehabilitative Services Directive No. 8--08, effective date July 9, 1974, Subject: Lay-off and Re-employment of Personnel.' The 'bumping' lay-off was based upon the purported authority of such HRS Directive and DOA Guidelines. Together they set forth a mixed seniority and merit system by which 'retention' points are calculated on the basis of years of service and evaluations received during those years of service. This system in essence provides that when a lay-off is to be made, an employee with greater retention points can 'bump' or usurp the job of another employee in the same class.

When Dr. Stevens was notified that he was going to be 'bumped' and laid off, he filed a petition under § 120.56(1), Fla.Stat. (1975), with the Division of Administrative Hearings by which he sought to have the HRS Directive and the DOA Guidelines declared invalid. § 120.56, Fla.Stat. (1975) ¹, provides:

'(1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground:

(a) That the rule is an invalid exercise of validly delegated legislative authority.

(b) That the rule is an exercise of invaliely delegated legislative authority.

(2) The petition seeking an administrative determination under this section shall be in writing and state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the grounds on which the rule is alleged to be invalid, which may be stated in the alternative. The petition shall be filed with the division. Within 10 days after receiving the petition, the division director shall, if he determines that the petition complies with the above requirements, assign a hearing officer who shall conduct a hearing within 30 days thereafter, unless the petition is withdrawn.

(3) Within 30 days after the hearing, the hearing officer shall render his decision and state the reasons therefor in writing. The hearing officer may declare all or part of a rule invalid. The rule or part thereof declared invalid shall become void when the time for filing an appeal expires or at a later date specified in the decision.

(4) Hearings held under this provision shall be conducted in the same manner as provided in s. 120.57 except that the hearing officer's order shall be final agency action. The petitioner and the agency whose rule is attacked shall be adversary parties. Other substantially affected persons may join the proceedings as parties or intervenors on appropriate terms which shall not unduly delay the proceedings. Failure to proceed under this section shall not constitute failure to exhaust administrative remedies.'

Following the administrative determination under the above statute, judicial review may be had pursuant to § 120.68, Fla.Stat. (1975).

HRS admitted that its Directive has never been adopted as a rule nor filed with the Department of State for publication in the Florida Administrative Code in accordance with § 120.041, Fla.Stat. (1973), or § 120.54, Fla.Stat. (1975). Also, DOA admitted that its memorandum has never been adopted as a rule nor filed with the Department of State pursuant to said statutes.

The final order of the hearing officer from which the petition for review has been filed concluded that the HRS Directive and the DOA Guidelines were rules under § 120.52(14), Fla.Stat. (1975); that they had not been lawfully adopted under Ch. 120, Fla.Stat. (1975), and were therefore invalid. The hearing officer further found that the Directive and Guidelines were additionally invalid because they violate § 110.061(1), Fla.Stat. (1975).

The primary questions raised by DOA and HRS are whether or not the hearing officer had authority to make the determination that the Guidelines and Directive are rules, and, if so, whether he had authority to determine that they were invalid because they were not adopted pursuant to the statutory procedures. They contend that these are judicial questions which only a court can answer and that the hearing officer's ruling invades the exclusive judicial power of the court. We disagree.

Article V, Section 1, Florida Constitution, provides that the judicial power shall be vested in a Supreme Court, District Courts of Appeal, Circuit Courts, and County Courts. In addition it states:

'Commission established by law, or administrative officers or bodies may be granted quasi-judicial power in matters connected with the functions of their offices.'

There is no well-defined line of demarcation between judicial and quasi-judicial functions. The Supreme Court in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967), said:

'If the affected party is entitled by law to the essentially judicial procedures of notice and hearing, and to have the action taken based upon the showing made at the hearing, the activity is judicial in nature. If such activity occurs other than in a court of law, we refer to it as quasi-judicial.'

We find the following pertinent general statements as to the exercise of quasi-judicial power by an administrative officer or agency in American Jurisprudence 2d:

'Many administrative agencies have and exercise powers and functions which are quasi-judicial or judicial in nature and some statutes expressly vest them with quasi-judicial power. The federal courts and the courts of some states, particularly where the constitution expressly so permits, recognize that administrative agencies unquestionably possess certain judicial powers and functions, the term 'quasi-judicial' being regarded merely as the designation of approval for the necessary exercise of a part of the judicial power by an agency not a part of the judiciary and to distinguish the powers exercised by such agencies from those exercised by the judiciary.' 1 Am.Jur.2d, Administrative Law, § 138.

'Merely because a board or commission is a body belonging to the executive or administrative body of the government, it by no means follows that it may not perform functions which are, in their nature, judicial, and possess and exercise quasi-judicial powers. Statutes conferring quasi-judicial powers and duties upon administrative agencies have been held not to be unconstitutional as encroachments upon the judicial branch of government, especially where such powers and duties relate to matters which are peculiarly affected with public interest or are subject to regulation under police powers, or where provision is made for appeal from decisions of such agencies to the courts.' 1 Am.Jur.2d, Administrative Law, § 145.

'Determinative power may be conferred upon an administrative agency so long as there is an opportunity to be heard and for judicial review which satisfies the demands of due process and the courts...