Division of Admin. Hearings v. DOT

534 So. 2d 1219, 1988 WL 129125

• Court: District Court of Appeal of Florida
• Decided: December 7, 1988
• Docket: 88-362
• Status: Published

Opinion

534 So.2d 1219 (1988)

DIVISION OF ADMINISTRATIVE HEARINGS, Appellant,
v.
DEPARTMENT OF TRANSPORTATION, Appellee.

No. 88-362.

District Court of Appeal of Florida, First District.

December 7, 1988.

Robert A. Butterworth, Atty. Gen. and Louis F. Hubener, Asst. Atty. Gen., Tallahassee, for appellant.

Gregory G. Costas, Tallahassee, for appellee.

PER CURIAM.

The Division of Administrative Hearings appealed an order which ruled that subsections (2) and (3) of its proposed rule 22I-6.006,^[1] and subsections (2) and (3) of its proposed rule 22I-6.037,^[2] are invalid.

We affirm. We find that the hearing officer was correct in determining that subsections (2) and (3) of proposed rule 22I-6.006 are arbitrary, and constitute an invalid exercise of delegated legislative authority. The hearing officer also correctly determined that the Department of Transportation had standing to challenge proposed rule 22I-6.037, and that subsection (2) of proposed rule 22I-6.037, gives the hearing officer unbridled discretion and therefore is an invalid exercise of delegated legislative authority. Finally, the hearing officer correctly determined that subsection (3) of proposed rule 22I-6.037, is an invalid delegation of legislative authority, for the Division of Administrative Hearings does not possess the legislative authority to adopt a rule which allows a hearing officer to impose a sanction of dismissal with prejudice.

JOANOS, WIGGINTON and BARFIELD, JJ., concur.

NOTES

[1] The proposed rules provide in pertinent part:

22I-6.006 Bid Protest Proceedings.

.. .

(2) Immediately upon receipt of notice of hearing, the agency shall forward copies to all other bidders and, if possible, advise them by telephone of the time and place of hearing. (3) Before final hearing, the agency shall file a statement of compliance with subsections... . (2), ...

[2] The proposed rules provide in pertinent part:

22I-6.037 Dismissal of Administrative Complaint.

... .

(2) After a formal hearing has begun, any request for voluntary dismissal of an administrative complaint, in whole or in part, shall be made by motion which shall set forth the reason for the voluntary dismissal. The hearing officer shall permit the voluntary dismissal, if at all, upon such terms and conditions as the hearing officer deems just and proper. Unless otherwise specified in the order of dismissal, the dismissal of an administrative complaint under this paragraph is without prejudice.

(3) Notice of voluntary dismissal of a subsequent administrative complaint based, in whole or in part, on factual allegations, earlier voluntarily dismissed, shall operate as a dismissal with prejudice as to all nonjurisdictional allegations earlier voluntarily dismissed.