Florida Department of Transportation , Appellant v. J. W. C. Company, Inc. First Dist. - March 27, 1981

Material Information

Florida Department of Transportation , Appellant v. J. W. C. Company, Inc. First Dist. - March 27, 1981


Subjects / Keywords:
Judicial hearing officers ( jstor )
Burden of proof ( jstor )
Statutory law ( jstor )
Spatial Coverage:
North America -- United States of America -- Florida


Jake Varn Collection - Florida Department of Transportation , Appellant v. J. W. C. Company, Inc. First Dist. - March 27, 1981 (JDV Box 89)
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2 February 1976-workers comp order
finding 271h% permanent partial dis-
ability based on loss of wage-earning
10 September 1976-second operation.
20 July 1977-second date of MMI with
an assigned rating of 15% permanent
physical impairment of the body as a
whole and 25% permanent physical im-
pairment to the lower right extremity.
The record also shows that from 10 July
1974 to March of 1976 the claimant worked
at Gator Shoes and that he had not worked
since and had not sought employment since
that time. V
A recent case from this court, General
Electric Company v. Osborne, Case No.
UU-48, Opinion filed March 10, 1981, is
directly on point. There, as here, though
the worker was able to show a change of
physical condition, the increase in benefits
was based on an increased loss of wage-
earning capacity, but there was no evidence
that the work search requirement had been
met. Walker v. Electronic Products, 248
So.2d 161 (Fla.1971).
In Exxon Company v. Alexis, 370 So.2d
1128 (Fla.1978), the Supreme Court re-
versed an award based on a 40% loss of
wage-earning capacity where the claimant
was reemployed after his first hospitaliza-
tion, but made no further efforts to seek
employment after he was terminated ap-
proximately three months prior to the date
of maximum medical improvement, stating:
It is well established that in order to
justify an award of compensation based
upon a diminution of wage-earning ca-
pacity, a claimant must show that he has
made an effort to test his employability
in the open labor market after having
reached maximum medical improvement.
(370 So.2d 1132)
Since there is no evidence of a work
search, Suarez has failed to demonstrate a
disability in excess of the rating of 27/%%
permanent partial disability in February
1976 and, therefore, recovery is limited to
that rating.
Because of our disposition of the point
raised on appeal, we need not rule on the
issues raised on the cross-appeal.

ceedings consistent with this opinion.

LIAM C., Jr. (Retired), Associate Judge,


PORTATION, Appellant,
J. W. C. COMPANY, INC., and
Department of Environmental
Regulation, Appellees.
No. 00-501.
District Court of Appeal of Florida,
First District.

March 27, 1981.

The Environmental Regulation Com-
mission, Joseph W. Landers, Jr., Secretary,
refused to issue permit for construction of a
complex source of air pollution, and appeal
was taken. The District Court of Appeal,
Larry G. Smith, J., held that: (1) refusal to
reopen case to permit introduction of addi-
tional evidence was not reversible error; (2)
hearing officer did not improperly allocate
burden of proof; and (3) denial of permit
was sustained even though Department of
Environmental Regulation had issued notice
of intent to issue permit.

1. Administrative Law and Procedure
For purposes of reopening administra-
tive hearing, there is substantial difference
between amendment to application pertain-
ing to matters substantially within control


~. ,'U

778 Fla.

Cite as, F.Ap.,
of applicant and reopening of hearing for
presentation of additional expert opinion
evidence. West's F.S.A. 120.51 et seq.,
120.57, 120.57(1), 120.60(2).
2. Administrative Law and Procedure
Mere chance that additional evidence
sought to be submitted after hearing was
completed might alter recommended order
did not furnish sufficient basis for court to
rule that agency's refusal to reopen hearing
was error. West's F.S.A. 120.51 et seq.,
120.57, 120.57(1), 120.60(2).
3 Administrative Law and Procedure
Nothing in statute relating to agency
procedure or issuing license compels agency
to accept additional information after for-
mal hearing had been completed. West's
F.S.A. 120.57(1), 120.60(2).
4. Health and Environment 0=25.5(9)
Without accepting or rejecting proposi-
tion that Department of Environmental
Regulation had inherent authority to re-
mand matter to hearing officer, record did
not warrant exercise of such authority.
West's F.S.A. 120.57(1), 120.60(2), 120.-
68(6, 8-13).
5. Health and Environment 0*25.15(6)
DER's decision to deny request to re-
mand matter to hearing officer to permit
introduction of additional evidence was
matter within sound discretion of agency
itself, and was not subject to reversal ab-
sent showing abuse of that discretion.
West's F.S.A. 120.57(1), 120.60(2).
6. Health and Environment 025.15(6)
DER was not guilty of reversible error
when it denied license applicant's request to
present additional evidence to the secretary
of DER, or to remand case to hearing offi-
cer for purpose of receiving additional evi-
7. Constitutional Law 4=-278.1
Health and Environment 4=25.6(8)
In proceeding seeking permit to con-
struct complex source of air pollution, hear-
ing officer's allocation of burden of proof
396 Sol2-19

ISP. v. J. W. C. CO., INC. Fla. 779
,3 So.2d 778
did not violate due process or fundamental
fairness principles. West's F.S.A. 120.57;
U.S.C.A.Const. Amend. 14.
8. Health and Environment =25.6(8)
DER's notice of intent to issue permit
for construction of complex source of air
pollution was merely a preliminary action.
9. Health and Environment *=-25.5(9)
Landowners' request for hearing after
DER had issued notice of intent to issue
permit commenced a de novo proceeding
intended to formulate final agency action
and not to review action taken earlier or
preliminarily. West's F.S.A. 120.57.
10. Health and Environment e=25.6(8)
Applicant for permit to construct, com-
plex source of pollution carries ultimate
burden of persuasion of entitlement
through all proceedings, of whatever na-
ture, until such time as final action has
been taken by agency, and such burden is
not subject to any shifting by hearing offi-
cer, although it is possible that shifting of
burden of going forward with evidence may
occur during hearing. West's F.S.A. 120.-
11. Administrative Law and Procedure
Burden of proof, apart from statute, is
on party asserting affirmative of issue be-
fore administrative tribunal.
12. Health and Environment *25.6(8)
Procedure followed by hearing officer
in connection with application for permit to
construct complex source of air pollution
was correct. West's F.S.A. 120.57.
13. Health and Environment *=25.5(9)
Where DER has issued notice of intent
to issue permit, orderly way for formal
hearing to be conducted is to have appli-
cant, who has ultimate burden of persua-
sion, first present a prima facie case.
West's F.S.A. 120.57.
14. Health and Environment 4=25.6(8)
Common sense dictates that principle
of differentiation applies both as to form
and substantiality, of proof needed to sup-
port those aspects of permit applications


that are uncontroverted, as opposed to
those that are contested, in administrative
hearing for permit to construct complex
source of air pollution. West's F.S.A.
15. Administrative Law and Procedure
Party should be able to anticipate that
when agency employees or officials having
special knowledge or expertise in field ac-
cept data and information supplied by ap-
plicant, same data and informations, when
properly identified and authenticated as ac-
curate and reliable by agency or other wit-
nesses, will be readily accepted by hearing
officer, in absence of evidence showing its
inaccuracy or unreliability. West's F.S.A.
16. Health and Environment 0=25.5(9)
Once formal hearing on issuance of
permit is requested, there is no presumption
of correctness and mere fact that in prelim-
inary proceeding the DER has issued notice
of intent to issue permit that would relieve
applicant of carrying ultimate burden of
persuasion. West's F.S.A. 120.57(1).
17. Administrative Law and Procedure
Not every request for formal adminis-
trative hearing may be granted, and peti-
tioner must demonstrate by appropriate
pleading that there are disputed issues of
fact requiring such hearing. West's F.S.A.
18. Health and Environment 4=-25.5(9)
No third party, merely be filing peti-
tion seeking administrative hearing after
DER indicated intent to issue permit should
be permitted to require applicant to com-
pletely prove anew all items in application
down to last detail. West's F.S.A. 120.-
19. Health and Environment 4-25.5(9)
Party seeking administrative hearing
after DER has indicated intent to issue
permit must identify areas of controversy
and allege factual basis for contention that
facts relied upon by applicant fall short of
carrying reasonable assurances burden case
upon the applicant. West's F.S.A. 120.57.

20. Health and Environment -= 25.5(9)
Petitioner seeking administrative hear-
ing after DER indication of intent to issue
permit has burden of proof to go forward
with evidence to prove truth of facts assert-
ed in petition. West's F.S.A. 120.57(1).

21. Health and Environment *25.5(9)
If petitioner seeking hearing after
DER indicated intention to issue permit
fails to carry burden of proof as to contro-
verted facts asserted, assuming permit ap-
plicant's preliminary showing before hear-
ing officer warrants finding of reasonable
assurances, permit must be approved.
West's F.S.A. 120.57(1).

22. Health and Environment e=25.5(9)
In making preliminary showing of rea-
sonable assurances before hearing officer,
permit applicant is required to provide cred-
ible and credited evidence of his entitlement
to permit from DER.

23. Health and Environment =25.5(9)
Once permit applicant has made pre-
liminary showing of reasonable assurances
before hearing officer, hearing officer
would not be authorized to deny DER per-
mit unless contrary evidence of equivalent
quality is presented by opponent of permit.
West's F.S.A. 120.57(1).

24. Health and Environment c=25.6(8)
Record established that hearing officer
committed no error in allocation of burden
of proof on issuance of DER permit for
construction of complex source of air pollu-
tion. West's F.S.A. 120.57(1).

25. Health and Environment <=25.6(8)
Even though DER issued notice of in-
tent to issue permit for construction of com-
plex source of air pollution, record sus-
tained denial of such permit after hearing
officer recommended against issuance.
West's F.S.A. 120.57(1).

James W. Anderson, Tallahassee, for ap-

780 Fla.

Cite as, FlaApp., 3 So.2d 778

Kenneth Oertel of Oertel & Laramore,
Alfred W. Clark, Tallahassee, Adrian Ba-
con, St. Petersburg, for appellees.
Edward de la Parte, Jr. of de la Parte &
Butler, Tampa, John T. Allen, Jr., St. Pe-
tersburg, for amicus curiae, Agrico Chemi-
cal Co.
William L. Earl and Paul H. Amundsen
of Peoples, Earl, Smith, Moore & Blank, P.
A., Miami, for amicus curiae, Freeport Sul-
phur Co.

The Department of Transportation (DOT)
appeals an order entered by the State De-
partment of Environmental Regulation
(DER) denying DOT's application for a per-
mit under the environmental laws, Chapter
403, Florida Statutes. DOT relies for re-
versal upon its claims: First, that DER
erred in accepting the order of the hearing
officer recommending denial of the permit
after a formal Section 120.57(1) hearing,2
without either granting DOT's request to
present additional evidence in support of its
application directly to the Secretary of
DER, or in the alternative remanding the
case to the hearing officer for the purpose
of receiving additional evidence; and
secondly, that the proceedings before the
hearing officer were not conducted in ac-
cordance with the essential requirements of
law, because the hearing officer improperly
placed the burden of proof upon DOT, rath-
er than upon its opponents, appellees J.W.C.
Company, Inc., and the other property own-
ers who were objecting to the issuance of
the permit sought by DOT.
Our consideration of the briefs of the
parties and briefs of amici curiae and our
examination of the record lead us to con-
clude that reversible error has not been
demonstrated in this appeal. We affirm.
1. Department of Administration (DOAH).
2. Administrative Procedures Act, Chapter 120,
Florida Statutes.
3. Amici curiae filed briefs solely on the ques-
tion of whether DOT or J.W.C. Company, Inc.,
and the other property owners had the burden
of proof in the administrative proceedings be-

As an incident to the proposed widening
of Gulf Boulevard, Treasure Island, Pinellas
County, DOT applied to DER for a permit
to construct a complex source of air pollu-
tion, asserting in its application that pollu-
tants in the form of automobile exhaust
fumes along the proposed roadway would
not exceed permissible standards adopted
by DER 4. DER's district office determined
that "reasonable assurances" had been pro-
vided that the road widening project would
not cause pollution in contravention of
DER's standards ', and it then issued its
"letter of intent"*, to issue the permit.
Appellee J.W.C. Company, Inc. and other
property owners filed a petition complain-
ing, among other things, that the proposed
widening would cause air pollution to a
degree prohibited by Florida's law and reg-
ulations, and requested a "public" hearing 7.
The hearing officer to whom the proceeding
was referred by DER held a hearing, re-
ceived evidence from DOT and the object-
ing property owners, and entered his order
recommending that issuance of the permit
be denied.
In its application and in its presentation
before the hearing officer, DOT sought to
establish that the proposed highway im-
provements would not cause air pollution
exceeding acceptable limits. To do this
DOT used what is technically known as
"computer modeling techniques," utilizing a
computer model known as "Caline II."
Traffic data was gathered by DOT to deter-
mine the future increase in traffic, and this
data was processed through a computer pro-
gram known as "Mobile I," to obtain pre-
dicted emissions of automobile pollutants.
The data obtained from the Mobile I pro-
gram was then fed into the Caline II model,
along with data with respect to the "worst
4. Rule 17-2.06, Florida Administrative Code.

5. Rule 17-4.07, Florida Administrative Code.

6. Rule 17-1.62, Florida Administrative Code.

7. Rule 17-1.62(2) makes reference to hearing
under Section 120.57, Florida Statutes.

Fla. 781


case conditions" at the point along the road-
way where the greatest concentrations of
pollutants would be likely to occur. Based
on the data utilized by DOT, including its
assumptions concerning the "worst case
conditions," the computer program produc-
ed results indicating highest concentrations
of carbon monoxide well within DER's
standards. No evidence other than the
computer model was presented by DOT.
Notwithstanding DOT's evidence based
on the computer model, the hearing officer
found that DOT had failed to provide rea-
sonable assurances that the proposed modi-
fications of Gulf Boulevard would not result
in pollution in violation of DER's standards.
The hearing officer pointed out in his order
certain factors indicating that DOT had
used "erroneous or insufficient data" in
conjunction with the computer modeling.
He emphasized particularly DOT's errone-
ous assumption of an "average speed" of 30
miles per hour for vehicles traveling
through the busiest intersection-Gulf Bou-
levard and Treasure Island Causeway. He
found that this assumed speed was not
based on evidence from which any firm
conclusion could be reached. He observed
that the speed limit was 35 miles per hour
at that intersection, but that there was also
a stop light which would drastically reduce
the average speed of vehicles traveling
through the intersection. He also found
that DOT's assumption of a 2 mile per hour
wind speed for its "worst case conditions"
could result in distorted data, and that a
wind direction of 22 degrees from parallel
was chosen for no apparently logical reason.
Parallel winds, the hearing officer found,
are generally thought to be the worst wind
conditions for producing high carbon mon-
oxide concentrations; but computer model
results generally become distorted if paral-
lel winds are assumed. Further, the "Ca-
line II" program assumes the roadway is
located on a grassy plain, a description
which did not fit this particular locale; and
8. It is apparently accepted knowledge that con-
centrations of automobile pollutants other than
carbon monoxide are not as susceptible to pre-
diction using computer modeling techniques as
is carbon monoxide. However, carbon monox-

there was a sharp conflict in the testimony
on the extent to which developments on
Gulf Boulevard would affect the result of
the Caline II data. The hearing officer also
questioned as "not necessarily valid" the
assumption by DER personnel who con-
sidered the application that the modifica-
tions at the busy intersection would cause
traffic to move at a faster rate than it does
presently, thereby decreasing pollution in
that area. Neither DER nor DOT present-
ed evidence on whether the proposed modi-
fications themselves would cause increased
usage of the roadway, thus increasing emis-
sions and pollution concentrations.
Based on his findings briefly summarized
above, the hearing officer concluded that
the data placed into the computer program
was "not sufficient to assure any reasonable
prediction" concerning pollutant concentra-
tions. There was, he found, a "substantial
possibility" that projected concentrations
would exceed acceptable limits if proper
data were utilized. Furthermore, because
of the erroneous or insufficient data used
by DOT in connection with carbon monox-
ide, predictions respecting concentrations of
other automobile related pollutants could
not be made.
Upon receipt of the hearing officer's rec-
ommended order DOT filed exceptions to
the order and also filed a "Motion To Con-
sider New Information," in which it re-
quested permission to submit directly to the
secretary of DER "new information" con-
sisting of a graph and the affidavit of Dr.
Gordon Morgan, one of the expert witnesses
used in the administrative hearing. The
graph and the affidavit purported to show
that, based on recalculations using lower
"average speeds," even as low as 15 miles
per hour (half of the average speed previ-
ously assumed by DOT), the resulting pollu-
tant predictions were well within acceptable
standards. The motion for permission to
introduce the graph and the additional ex-
pert evidence was denied.
ide is frequently utilized as a "controlling pollu-
tant," and it is considered reasonable, general-
ly, to base a prediction of excessive concentra-
tions of other pollutants on whether or not
excessive carbon monoxide can be predicted.

782 Fla.

Cite as, a.App.,
DER entered its Final Order, adopting
the hearing officer's recommended order,
denying the permit, denying DOT's request
to consider new information, and (by impli-
cation) denying DOT's alternative request
that the proceeding be remanded to the
hearing officer for the purpose of consider-
ing the "new information" tendered by
Appellant DOT's first point, as indicated
at the beginning of our opinion, is that
DER's rejection of the "new information"
tendered by it was error, in that such infor-
mation had significant bearing on the issues
dealt with by the hearing officer. DOT
argues that rejection of this additional evi-
dence constituted a violation of the Admin-
istrative Procedures Act, and a denial of
fundamental fairness. Under DOT's theory
of the case, the hearing officer simply made
a "preliminary determination" that DOT
had failed to provide "reasonable assur-
ances" that DER's air quality standards
would not be violated. DOT further rea-
sons that because the administrative proc-
ess is an "on-going inquiry," the secretary
of DER, after receipt of the hearing offi-
cer's recommended order, is compelled to
consider all information relevant to the is-
sues-even evidence not presented at the
hearing-before entering a final order.
DOT's argument relies to a great extent
upon what we believe is a misreading of
this court's opinion in Couch Construction
Company v. Department of Transportation,
361 So.2d 172 (Fla. 1st DCA 1978). DOT
urges that this court's remand to the agen-
cy in Couch "implicitly required the secre-
tary either to discuss in his final order new
information not previously addressed by the
hearing, or himself to remand the case to
DOAH for its entry of a new recommended
order discussing the abolition of the pre-bid
conference." We do not read in the Couch
opinion anything to support the rule or
principle DOT draws from it. What the
majority opinion in Couch did hold is that
both the order of the hearing officer and
the order of the agency were deficient in
that they failed to address the earlier deci-
9. The rules were rewritten, effective March 23,

ISP. v. J. W. C. CO., INC. Fla. 783
,396 So.2d 778
sion by the agency to abolish mandatory
attendance by bidders at a pre-bid confer-
ence. This was a factor that could have
had significant bearing on the validity of
the agency's decision to reject Couch's bid
because he had failed to attend just such a
The fact that the agency in Couch had
abolished mandatory attendance was not in
any respect "new information," as DOT as-
sumes. This is evident from a reading of
the hearing officer's order in the Couch
case, quoted in full in the dissenting opin-
ion. The order contains the finding that at
"the hearing" (referring to a second pre-bid
conference held in January after readvertis-
ing for bids), "the D.O.T. divulged that
attendance at pre-bid conferences would no
longer be required or mandatory..."
(Couch, dissenting opinion, at page 180).
The abolition of mandatory pre-bid confer-
ences was therefore a matter of record be-
fore the hearing officer, not something
presented "after the fact" by any party.
This significant difference easily distin-
guishes the Couch case from this one.
We find no provision in the statutes or
the rules of procedure (Chapter 28, Model
Rules of Procedure) authorizing or permit-
ting an agency head to "reopen" a hearing
as suggested by DOT. The authority of the
agency, upon receipt of the hearing officer's
recommended order, is set forth in Section
120.57(1Xb)9, Florida Statutes. The statute
provides the following basic alternatives:
(1) The agency may adopt the recommended
order as the agency's final order; or, (2) the
agency in its final order may reject or mod-
ify the conclusions of law and interpreta-
tion of administrative rules in the order,
but may not reject or modify the findings
of fact unless it determines from the record,
and states with particularity in the order,
that (a) the findings of fact were not based
on competent substantial evidence, or (b)
that the proceedings on which the findings
were based did not comply with essential
requirements of law. Neither this statute

~_i__ _I


nor the model rules of procedure ** suggest
the procedure urged by DOT of allowing
the agency to receive additional or cumula-
tive evidence on matters as to which evi-
dence has already been received and evalu-
ated by the hearing officer. Furthermore,
this court has indicated, albeit indirectly,
that this may not be done." If one side
were permitted to produce additional evi-
dence, as suggested by DOT, then the other
side would necessarily have to be given the
same privilege, and each side would of ne-
cessity have to be given the right of con-
frontation and cross-examination of the ad-
ditional witnesses, and possibly rebuttal.
We do not envision the Administrative Pro-
cedures Act as permitting such a never-end-
ing process.
The decision of this court in Public Bank
of St. Cloud v. State, 351 So.2d 73 (Fla. 1st
DCA 1977), also relied upon by appellant,
does not mandate a result different than
the one we reach in this case. We observe
initially that there are fundamental dissimi-
larities between an application for a bank
charter as in St. Cloud, and an application
for a permit to construct a complex source
of air pollution. But more significantly, the
context in which the procedural issue arose
in St. Cloud bears little resemblance to the
issue under consideration here. There was
no motion by the applicant in St. Cloud
requesting the Comptroller to receive addi-
tional evidence. That alone distinguishes
the cases. In St. Cloud, the hearing offi-
cer's order pointed out that evidence pro-
duced at the hearing cast some doubt con-
cerning the financial standing and ability of
two individuals named as members of the
applicants' proposed Board of Directors.
Explaining that the applicants otherwise
met the required statutory criteria, and
that the criteria regarding the suitability of
the proposed Board of Directors was a mat-
ter "substantially within the control of the
10. See particularly, "(C) Post-Hearing Proce-
dures," Part II, Chapter 28, Florida Administra-
tive Code, effective March 23, 1980. There was
no comparable provision under the prior rules.
11. See McDonald v. Department of Banking
and Finance, 346 So.2d 569 (Fla. 1st DCA
1977), at page 586, stating that "further consid-

applicant," the hearing officer recom-
mended that the applicant be permitted a
short period of time within which to review
its proposed directors, and, "if it so desires,
submit an amended list" for the Comptrol-
ler's review. (Id. at page 74). The Comp-
troller summarily denied this recommenda-
tion and denied the application. This court
on appeal held that the Comptroller abused
his discretion in refusing the amendment,
pointing out that the Comptroller, during
the pendency of the appeal, had permitted
the amendment of a proposed charter by
other applicants. This fact alone, said the
court, "when considered in the light of the
voluminous data" required in a charter ap-
plication, demonstrated that the denial of
the charter constituted an abuse of discre-
[1,2] If this case involved an amend-
ment to the application, in the St. Cloud
sense, and if the hearing officer had recom-
mended that such an amendment be al-
lowed by DOT based on evidence presented
at the hearing, then the ruling in St. Cloud
would have some application. Conceivably,
DER might by rule provide for amendment
to the application during the hearing proc-
ess, or it might by rule prohibit substantial
amendment in "mid-proceeding" as indi-
cated by this court with reference to bank
applications in McDonald v. Department of
Banking and Finance, 346 So.2d 569, at 584
(Fla. 1st DCA 1977). Footnote 14 of that
opinion (Id. at 584) reveals that the Depart-
ment of Banking and Finance had adopted
such a rule. We perceive, however, a sub-
stantial difference between an amendment
to an application pertaining to a matter
"substantially within the control of the ap-
plicant," as in St. Cloud (Id. at 74) and the
reopening of a hearing for the presentation
of additional expert opinion evidence, as
requested here by DOT. The mere chance
that such additional evidence "might alter
eration" by the Department, of specific statuto-
ry criteria required to be established by appli-
cants for banking authority, "is foreclosed by
the absence of record evidence which might
justify the Department in discarding the hear-
ing officer's recommended findings."

784 Fla.

Cte as, Fla.App.,
the recommended order," as argued by
DOT, does not furnish sufficient basis for a
ruling by this court that the agency's order
should be reversed. We note, furthermore,
that DER's denial in this case was without
prejudice to the right to submit a revised
application to DER; and DER's order fur-
ther stated that in the event of a new
application and another Section 120.57(1)
hearing, DER would request that the same
DOAH hearing officer who conducted the
proceeding below be assigned to hear the
new application.
[3] Further, as to DOT's first point, we
find without merit its contention that Sec-
tion 120.60(2), Florida Statutes, compels
DER to accept additional information ten-
dered by DOT, even after a formal Section
120.57(1) hearing. An agency's free-form
action is regarded as preliminary, irrespec-
tive of its tenor. Capeletti Brothers Inc. v.
Department of Transportation, 362 So.2d
346 (Fla. 1st DCA 1978)." The petition for
a formal 120.57(1) hearing, as in this case,
commences a de novo proceeding. See Gen-
eral Development Corp. v. Division of State
Planning, 353 So.2d 1199 (Fla. 1st DCA
1977); Couch Construction Company v. De-
partment of Transportation, supra; Mc-
Donald v. Department of Banking and Fi-
nance, supra. Section 120.57 proceedings
"are intended to formulate final agency
action, not to review action taken earlier
and preliminarily." McDonald v. Depart-
ment of Banking and Finance, supra, at
Regarding DOT's contention that DER
should have granted its request that the
case be remanded to the hearing officer, we
note initially that DOT concedes that nei-
ther Chapter 120, Florida Statutes, nor any
12. Neither the prior rules, nor the amended
model rules of procedure, Chapter 28, Florida
Administrative Code, effective March 23, 1980,
apply to agency investigations "preliminary to
agency action." New Rule 28-5.101 makes
Chapter 28 applicable, specifically, "to all pro-
ceedings under Section 120.57, as well as those
initiated under 120.60 or 120.54(16) which are
required to be conducted in accordance with
Section 120.57, F.S., to the extent that an agen-
cy has not adopted its own specific rules of
procedure..." New Rule 28-5.110(1) pro-

ISP. v. J. W. C. CO, INC. Fla. 785
3N So.2d 778
other statutory provision expressly grants
to an agency the authority to remand a
proceeding to the hearing officer for consid-
eration of further evidence. It urges, how-
ever, that such authority is inherent by
reason of the nature of the agency and the
functions it is empowered to perform.
This latter contention raises an issue not
directly ruled upon in Florida, so far as we
can determine. However, language in at
least one Florida case gives support to
DOT's position. In Venetian Shores Home
and Property Owners v. Ruzakawski, 336
So.2d 399, at 401 (Fla. 3rd DCA 1976), the
court stated:
We believe the entire tenor of the provi-
sions of the Administrative Procedure
Act having to do with the functions of a
Hearing Examiner leads to the inescap-
able conclusion that the action of the
agency, after a full hearing, is in the
nature of a procedural review. Extensive
provisions are made for remand or correc-
tion where the hearing is not complete or
in accordance with the rules of due proc-
ess, but there is no provision which sug-
gests that the agency should make a new
judgment upon the evidence. (Emphasis
It is not entirely clear whether the empha-
sized language in the above quote, con-
sidered in isolation, is referring to remand
by the agency, or remand by the appellate
court upon review of final agency action.
However, since neither the statutes nor any
rules provide for remand by the agency for
further hearing by the hearing officer, prior
to entry of the agency's final order, we
conclude that the writer of the opinion was
referring to the authority of the reviewing
court to remand to the agency under provi-

sions of Section 120.68(6), (8H13).
vides, however, that the model rules do not
apply to "agency investigations or to determi-
nations of probable cause preliminary to agen-
cy action," and subsection (3) of that rule pro-
vides that an investigation or determination of
probable cause "is a non-adversary executive
function to discover or procure evidence as
part of the fact-finding function of an agency."
Compare General Development Corporation v.
Florida Land and Water Adjudicatory Commis-
sion, 368 So.2d 1323 (Fla. 1st DCA 1979).

-~L--C~-_-I- -r- --^-


[4,5] However, without either accepting
the proposition that an agency has inherent
authority for "remand or correction where
the hearing is not complete or in accordance
with the rules of due process," or on the
other hand foreclosing the possibility of the
existence of such authority under excep-
tional circumstances I, we are confident
that the present case does not justify the
exercise of such authority. In any event,
the agency's decision to deny a remand
would be a matter within the sound discre-
tion of the agency itself, not subject to
reversal by this court absent a showing of
abuse of that discretion.14 Substantial au-
thority holds that there is no abuse of dis-
cretion in denying a rehearing (or remand)
sought for the purpose of introducing evi-
dence that could, in the exercise of due
diligence, have been offered at the original
hearing. 2 Am.Jur.2d, Administrative Law,
537; Bowman Transportation Inc. v. Ar-
kansas-Best Freight System, 419 U.S. 281,
95 S.Ct. 438, 42 L.Ed.2d 447 (1974). We do
not by this reference insinuate that rehear-
ing may be granted pursuant to Chapter
120, under any circumstances, after final
agency action. This court has only recently
held that rehearings cannot be granted.
See Systems Management Associates Inc. v.
State Department of Health and Rehabili-
tative Services, 391 So.2d 688 (Fla. 1st DCA
1980), and opinion on motion for reconsider-
ation, 391 So.2d 688 (Fla. 1st DCA 1980).
[6,7] Having found no reversible error
on the first point presented by DOT, we
now turn to its contention that reversible
error occurred because the hearing officer
erroneously placed the burden of proof
13. For example, in Manatee County v. Florida
Public Employees Relations Commission, et al.,
387 So.2d 446 (Fla. 1st DCA 1980), PERC re-
manded to the hearing officer for consideration
of new evidence restricted to issues raised by a
change in circumstances occurring subsequent
to the formal hearing before the hearing officer
(county took over utility, thus raising question
of inclusion of utility employees in proposed
bargaining unit). However, the validity of the
remand order was not made an issue on appeal;
and, moreover, a special case can be made for
PERC's remand authority because of PERC's
unique statutory responsibility and authority in
connection with defining employee bargaining

upon DOT at the formal hearing. On this
point, our review convinces us that no con-
sideration of due process or fundamental
fairness was breached by the hearing offi-
cer's allocation of the "burden of proof".
It is apparent that DOT's argument (and
that of amicus curiae-Agrico) on this point
proceeds upon the underlying premise that
once DOT presented its application to DER
and received DER's notice of intent to issue
the permit, its "burden of proof" to show
"reasonable assurances" as required by the
rule 15 was discharged, and it had no further
duty to "prove its case" a second time be-
fore the hearing officer at the 120.57(1)

[8,9] We think that DOT's position on
this point is faulty in two respects. The
first is that it ignores the firmly established
principle, already alluded to in this opinion,
that the proceeding leading up to the is- i
suance of DER's notice of intent is of the
type that has been characterized as "free-i
form" action, and as such the decision pro-
duced is merely "preliminary." Capelettii
Brothers Inc. v. Department of Transporta-
tion, supra. Under Rule 17-1.62(3), Florida
Administrative Code, a letter of intent to
issue or deny a permit is "proposed agency
action," which becomes "final agency ac-
tion" only if no hearing is requested by an
objecting party within fourteen days of re-
ceipt of notice of the proposed action.
Clearly, there was no final agency action by
DER in this proceeding prior to the peti-
tioning landowners' request for a hearing.
Their request for a hearing commenced a de
novo proceeding, which, as previously indi-
units, which is also reflected in PERC's rules
governing hearings in such proceedings.
Viewed in this context, PERC's remand proce-
dure can be cited only as illustrating the exer-
cise of such authority under "exceptional cir-
cumstances," and not as evidence of a general
rule allowing remand by virtue of "inherent
authority" possessed by the agency.

14. See Public Bank of St. Cloud v. State, supra;
Couch Construction Company v. Department
of Transportation, supra.

15. Rule 17-4.07, Florida Administrative Code.


'-- iiL-~-

786 Fla.

Cite as, Fa.App., 3 So.2d 778

cated, is intended "to formulate final agen-
cy action, not to review action taken earlier
and preliminarily." See McDonald v. De-
partment of Banking and Finance, supra."
This issue was addressed by the hearing
officer in his recommended final order, in
which he stated:
DOT and DER have contended that the
fact that DER has issued a "Notice of
Intent to Issue Permit," and that Peti-
tioners thereafter requested a hearing,
imposes upon the petitioners the burden
of proof in this case. This contention, if
accepted, would render the hearing a re-
view of action already taken by DER.
That is not the function of a hearing
conducted in accordance with the provi-
sions of Florida Statutes 120.57(1), or
120.60. (Citing Couch Construction Com-
pany v. Department of Transportation,
supra, and McDonald v. Department of
Banking and Finance, supra.)
We are in accord with the hearing officer's
understanding that in permitting proceed-
ings a formal hearing is not a mere "re-
view" of action already taken by DER.
[10] The second fault we find in DOT's
analysis of the burden of proof issue has
more to do with a confusion of terms than
any basic error of substance. We view it as
fundamental that an applicant for a license
or permit carries the "ultimate burden of
persuasion" of entitlement through all pro-
ceedings, of whatever nature, until such
time as final action has been taken by the
agency. This burden is not subject to any
"shifting" by the hearing officer, although
it is entirely possible that a shifting of the
burden of going forward with the evidence
may occur during the course of the permit-
ting proceeding. We think that part of the
problem presented in this appeal stems
from use of the term "burden of proof" to
refer at times to the "burden of ultimate
persuasion," and at other times to the "bur-
den of going forward with the evidence."
See Hughes, Florida Evidence Manual, Vol-
ume 1, Section 37 "Burden of Going For-
16. The APA's hearing requirements are de-
signed to give affected parties "an opportunity
to change the agency's mind." Couch Con-

ward With Evidence," and Section 38 "Bur-
den of Persuasion, In General."
A distinction in these terms was made by
the court in In Re Estate of Ziy, 223 So.2d
42 (Fla.1969), utilizing an explanation found
in a decision from the State of Alabama (Id.
at 43):
The term 'burden of proof' has two dis-
tinct meanings. By the one is meant the
duty of establishing the truth of a given
proposition or issue by such a quantum of
evidence as the law demands in the case
in which the issue arises; by the other is
meant the duty of producing evidence at
the beginning or at any subsequent stage
of the trial, in order to make or meet a
prima facie case. Generally speaking, the
burden of proof, in the sense of the duty
of producing evidence, passes from party
to party as the case progresses, while the
burden of proof, meaning the obligation
to establish the truth of the claim by a
preponderance of the evidence, rests
throughout upon the party asserting the
affirmative of the issue, and unless he
meets this obligation upon the whole case
he fails.
It is obvious that, before accepting gener-
alizations concerning the "burden of proof,"
one must look to the underlying statutory
and regulatory framework under which a
particular proceeding arises. For example,
in Agrico Chemical Co. v. State, 365 So.2d
759 (Fla. 1st DCA 1978), this court held, in a
rule challenge proceeding (Section 120.54,
Florida Statutes), that the "burden is upon
one who attacks the proposed rule to show
that the agency, that adopts the rule, will
exceed its authority; ...." It must be
noted, however, that the allocation of the
burden in the Agrico case proceeded from
the court's view that the rule-making func-
tion of an agency is "quasi-legislative ac-
tion," and its activities in that respect
"must be considered with deference to that
function." (Agrico, supra, at 762)
struction Company v. Department of Transpor-
tation, supra, at page 176.

Fla. 787

_ si~lFLiYCiiU-iiP(


[11] DER's Rule 17-4.07, Florida Ad-
ministrative Code implements Section 403.-
087 (and other provisions), Florida Statutes.
That rule, the validity of which is not chal-
lenged here, provides that the applicant for
a permit bears the burden to "affirmative-
ly" provide DER with "reasonable assur-
ances" that pollution standards will not be
violated by the proposed facilities. Under
the statutory and regulatory framework the
applicant is thus the party asserting the
"affirmative" of the issue, both before the
Department in preliminary proceedings and
before the hearing officer in formal pro-
ceedings. In accordance with the general
rule, applicable in court proceedings, "the
burden of proof, apart from statute, is on
the party asserting the affirmative of an
issue before an administrative tribunal."
Balino v. Department of Health and Reha-
bilitative Services, 348 So.2d 349 (Fla. 1st
DCA 1977).
It is clear that when the hearing officer
used the phrase "burden of proof" in his
recommended order (as quoted above) he
was referring to the ultimate burden of
persuasion. The language immediately fol-
lowing the above quoted portion of the or-
der specifically makes this point:
The issue in this proceeding is whether
DER should issue the permit. Clearly
DOT has the affirmative obligation of
establishing its entitlement to the permit.
The fact that DER has issued a notice of
intent to issue permit may render DOT's
task in establishing its entitlement at a
hearing somewhat easier. It does not,
however, alleviate the responsibility.1"
[12,13] We think the procedure fol-
lowed here was correct. DOT was required
to "go forward with the evidence" initially.
See General Development Corporation v.
Florida Land and Water Regulatory Com-
mission, 368 So.2d 1323 (Fla. 1st DCA 1979),
in which this court found no error in the
hearing officer's requirement that the de-
veloper present its case first (in an appeal
under Section 380.07, Florida Statutes)
17. The hearing officer also found that, whether
the burden of proof is placed upon DOT as the
applicant, or upon the petitioners as the oppo-

since "that would facilitate an orderly pre-
sentation of evidence." This procedure is
not inconsistent, in our opinion, with the
notion that the petitioning property owners,
who requested the hearing, also bear a
"burden of proof," nor is a different order
of proof required by Rule 17-1.59, Florida
Administrative Code. This rule, entitled
"Burden of Proof," provides that in license
and variance proceedings before the De-
partment, "the person requesting a hearing,
variance, license, or other relief, shall have
the burden of proof to establish, by a pre-
ponderance of the evidence, entitlement to
the requested license, variance, or other re-
lief." As a practical matter, where a notice
of intent has been issued, we can conceive
of no more orderly way for a formal hear-
ing to be conducted than to have the appli-
cant (who has the ultimate burden of per-
suasion) first present a "prima facie case."
The hearing officer is not required to com-
mence hearing the petitioning objector's ev-
idence in such a proceeding with a blank
record. We think it is essential, both for
the benefit of the hearing officer and the
petitioning objectors (to say nothing of the
agency, and the appellate court) to have on
record a basic foundation of evidence per-
taining to the application so that the issues
can be understood, and so that evidence
directed to these issues by the petitioning
objectors can be properly evaluated. At
the very minimum, this preliminary show-
ing should include the application, and the
accompanying documentation and informa-
tion relied upon by the agency as a basis for
the issuance of its notice of intent. To
what extent it would be advisable or neces-
sary for this preliminary presentation by
the applicant to be further expanded would
depend, to a large extent, on the nature of
the objections raised by the petitioners re-
questing a hearing.
[14] We caution that we are not here
laying out a blueprint governing either the
exact procedure to be followed or the form
or manner in which evidence shall be
nents of the notice of intent to issue permit, the
permit should not be issued.

788 Fla.

Cte as, a.App,
presented in administrative hearings. As
aptly pointed out by Judge Robert Smith in
Bowling v. Department of Insurance, 394
So2d 165 (Fla. 1st DCA 1981), although "all
questions of fact as distinguished from poli-
cy are determinable under the Administra-
tive Procedures Act by substantial compe-
tent evidence," evidence "'appropriate in
form' may differ from one proceeding to
another depending on the 'nature of the
issues involved'" (citing Balino v. Depart-
ment of Health and Rehabilitative Services,
supra). Although the Bowling decision dis-
cusses the differentiation between evidence
which "substantially" supports conventional
forms of regulatory action and evidence
which is required to "substantially" support
a license revocation, we think common
sense dictates that the principle of "differ-
entiation" applies also both as to the form,
and substantiality, of proof needed to sup-
port those aspects of a permit application
that are uncontroverted, as opposed to
those that are contested, in a Section 120.-
57(1) proceeding.
[15,16] Being somewhat more specific,
as a general proposition a party should be
able to anticipate that when agency em-
ployees or officials having special knowl-
edge or expertise in the field accept data
and information supplied by the applicant,
the same data and information, when prop-
erly identified and authenticated as accu-
rate and reliable by agency or other wit-
nesses, will be readily accepted by the hear-
ing officer, in the absence of evidence show-
ing its inaccuracy or unreliability. We em-
phasize again, however, that once a formal
hearing is requested, there is no "presump-
tion of correctness" in the mere fact that in
preliminary proceedings the Department
has issued its "notice of intent" to issue the
permit that would relieve the applicant of
carrying the "ultimate burden of persua-
sion." See General Development Corpora-
tion v. Florida Land and Water Regulatory
Commission, supra; and O'Neil v. Pallot,
257 So.2d 59 (Fla. 1st DCA 1972).
18. No contention is made here that the petition
filed by the objecting property owners is defi-
cient in any respect.
Fl.Ca e39S6-J37So.2d--

ISP. v. J. W. C. CO, INC. Fla. 789
39 So.2d 778
[17-23] Not every request for a formal
Section 120.57(1) hearing may properly be
granted, for it is clear that the petitioner
must first demonstrate by appropriate
pleading that there are disputed issues of
fact requiring such a hearing. Blanchette
v. School Board of Leon County, 378 So.2d
68 (Fla. 1st DCA 1979), United States Ser-
vice Industries-Florida v. Department of
Health and Rehabilitative Services, 383
So.2d 728 (Fla. 1st DCA 1980). We totally
agree with the sentiments expressed by
amicus curiae Agrico that no third party,
"merely by filing a petition," should be
permitted to require the applicant to "com-
pletely prove anew" all items in a permit
application down to the last detail. The
petitioner must identify the areas of contro-
versy and allege a factual basis for the
contention that the facts relied upon by the
applicant fall short of carrying the "reason-
able assurances" burden cast upon the ap-
plicant.1" The "burden of proof" is upon
the petitioner to go forward with evidence
to prove the truth of the facts asserted in
his petition. If the petitioner fails to
present evidence, or fails to carry the bur-
den of proof as to the controverted facts
asserted-assuming that the applicant's
preliminary showing before the hearing of-
ficer warrants a finding of "reasonable as-
surances"-then the permit must be ap-
proved. In making this preliminary show-
ing of "reasonable assurances" before the
hearing officer, the applicant is required to
provide credible and credited evidence of
his entitlement to the permit. This having
been done, the hearing officer would not be
authorized to deny the permit unless con-
trary evidence of equivalent quality is
presented by the opponent of the permit.
Our research discloses a similar approach
to this problem by the federal courts. In
Environmental Defense Fund Inc. v. Envi-
ronmental Protection Agency, 179 U.S.App.
D.C. 43, 548 F.2d 998 (1976), the contention
was made, in a proceeding filed by a manu-
facturer of pesticides (applicant and regis-



trant) and others for review of an order by
the Environmental Protection Agency sus-
pending registration of certain pesticides,
that the "burden of proof" as to the safety
of the pesticides rested upon the agency,
rather than the manufacturer. The Feder-
al Administrative Procedures Act, 7(c), 5
U.S.C. 556(d), provides, in part, that "Ex-
cept as otherwise provided by statute, the
proponent of a rule or order has the burden
of proof." Judge Leventhal, writing for
the court, rejected the manufacturer's argu-
ment that this provision placed the burden
of proof upon the agency as the proponent
of the order in question, and decided that as
to that particular case, the statute in ques-
tion "otherwise provided" (5 U.S.C.
556(d)), so as to clearly cast the burden of
proof upon the manufacturer. In so hold-
ing, however, he examined decisions from
other circuits and cited and relied upon the
legislative history of Section 7(c) of the
Federal APA 19. He further proceeded to
fully explore the concepts "burden of
proof," "burden of coming forward with the
evidence," and "ultimate burden of persua-
sion," and concluded (opinion page 1013,
supplemental opinion on petition for rehear-
As to the APA, our opinion holds that the
"burden of proof" it casts upon the "pro-
19. Portions of the legislative history relied
upon by Judge Leventhal, although referring to
a provision of the Federal APA as to which
there is no Florida counterpart, are included
here, because they can be of assistance in
reaching a clearer understanding of these con-
cepts. A pertinent paragraph of the Senate
Committee provides:
That the proponent of a rule or order has the
burden of proof means not only that the
party initiating the proceeding has the gener-
al burden of coming forward with a prima
facie case but that other parties, who are
proponents of some different result, also for
that purpose have a burden to maintain.
Similarly the requirement that no sanction be
imposed or rule or order be issued except
upon evidence of the kind specified means
that the proponents of a denial of relief must
sustain such denial by that kind of evidence.
For example, creditable and credited evi-
dence submitted by the applicant for a
license may not be ignored except upon the
requisite kind and quality of contrary evi-
dence. No agency is authorized to stand

ponent" is the burden of coming forward
with proof and not the ultimate burden
of persuasion.

[24,25] By application of the principles
and authorities discussed above we deter-
mine that the hearing officer committed no
error in his allocation of the burden of
proof in these proceedings, and that his
recommended order, approved by DER,
properly addresses this issue. We find no
merit in appellant's contention that DER's
allocation of the burden of proof, as that
phrase is used to refer to the "ultimate
burden of persuasion," to the applicant, rep-
resents a "change in policy."
The order appealed from is AFFIRMED.



mute and arbitrarily disbelieve creditable evi-
dence. Except as applicants for a license or
other privilege may be required to come for-
ward with a prima facie showing, no agency
is entitled to presume that the conduct of any
person or status of any enterprise is unlawful
or improper. (S.Rep.No.752. 79th Cong., 1st
Sess. 22 (1945), reprinted in S.Doc. 248 at
This view is confirmed by the House Report
which provides:
In other words, this Section means that every
proponent of a rule or order or the denial
thereof has the burden of coming forward
with sufficient evidence therefore; and in de-
termining applications for licenses or other
relief any fact, conduct, or status so shown
by creditable and credited evidence must be
accepted as true except as the contrary has
been shown or such evidence has been rebut-
ted or impeached by duly credited evidence
or by facts officially noticed and stated.
(Emphasis added) (H.R.Rep. 1980, 79th Cong.,
2d Sess. 34 (1946). reprinted in S.Doc. 248 at

790 Fla.