Garrido v. State

386 So. 2d 811, 1980 Fla. App. LEXIS 17326

• Court: District Court of Appeal of Florida
• Decided: June 30, 1980
• Docket: No. UU-352
• Status: Published

Opinions

ON MOTION FOR SUMMARY REVERSAL AND/OR REMAND

PER CURIAM.

Garrido files this appeal of a final order of the Department of Health and Rehabilitative Services (HRS) denying his rulemak-ing petition to amend Florida Administrative Code Rule 10D^fl.25. The proposed amendment would have deleted from the rule the requirement that an applicant for licensure as a clinical laboratory technologist achieve a satisfactory grade on a U. S. Public Health Service-approved proficiency examination. In support of his petition Garrido alleged that the examination was no longer being given. He thus argued that the rule should be amended to reflect these changed circumstances, for a requirement to pass an examination which is never given is per se unreasonable. Garrido also requested the opportunity to present evidence in support of the petition. In its final order HRS concluded that the examination was still being given and summarily denied the petition without holding an evi-dentiary hearing. By his motion Garrido now seeks summary reversal and/or remand with directions that HRS take evidence on the allegations of the petition which it disputes.

We find that the validity of HRS’s action depends upon the disputed fact of whether the U. S. Public Health Service-approved examination is, indeed, still being given. We therefore remand under the authority of Section 120.68(6), Florida Statutes, for a fact-finding proceeding on this point. The Department shall then enter an order setting forth separate findings of fact and conclusions of law as dictated by Section 120.59, Florida Statutes.

Garrido’s Alternative Motion for Remand is hereby GRANTED. McCORD, BOOTH and SHAW, JJ., concur.