Opinion
No. UU-352.
June 30, 1980. Rehearing Denied August 18, 1980.
Appeal from the Department of Health and Rehabilitative Services.
Stephen Maher, Perrine, for appellant.
George L. Waas, Tallahassee, for appellee.
ON MOTION FOR SUMMARY REVERSAL AND/OR REMAND
Garrido files this appeal of a final order of the Department of Health and Rehabilitative Services (HRS) denying his rulemaking petition to amend Florida Administrative Code Rule 10D-41.25. 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 evidentiary 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.
ON MOTION FOR REHEARING
On motion for rehearing, the Department seeks clarification as to whether it must hold a formal hearing under § 120.57(1), rather than an informal proceeding under § 120.57(2).
The only question of fact on the record before us is whether the requirement of Rule 10D-41.25 F.A.C., that the applicant take a U.S. Public Health Service approved proficiency exam, is obsolete because the exam is no longer given. If this issue can be resolved by agreement, then a § 120.57(2) proceeding is appropriate to determine what rule amendment or rule making is required. If the factual issue cannot be resolved, however, a § 120.57(1) proceeding is required. In either event, the Department shall make specific findings supporting its action.
McCORD, BOOTH and SHAW, JJ., concur.