Opinion
May 30, 1979.
PRESENT: Bevilacqua, C.J., Joslin, Kelleher, Doris and Weisberger, JJ.
1. ASYLUMS. Appeal From Disapproval of Construction Application. Appeal to superior court from decision of Health Department disapproving application for proposed construction of hospital limited to treatment of alcoholic patients was governed by provision of statute which does not provide for direct appeals from superior court decision to Supreme Court; the proper vehicle for review of the decision was by petition for certiorari, and hence the motion to dismiss plaintiff's appeal would be granted. Gen. Laws 1956, §§ 23-16-9, 42-35-1 et seq., 42-35-15, 42-35-18.
The plaintiff filed an application with the Department of Health for approval for proposed construction of a hospital limited to treatment of alcoholic patients. The application was denied and the plaintiff filed an appeal in Newport County Superior Court and an appeal in Providence County Superior Court and the Newport appeal was transferred to the Providence County and consolidated for hearing. The Superior Court, Providence and Bristol Counties, Giannini, J., sustained a denial and the plaintiff appealed. The Supreme Court held that the proper vehicle for review of the decision of the Superior Court was by petition for certiorari, and hence defendant's motion to dismiss the appeal would be granted.
Motion to dismiss appeal granted.
Moore, Virgadamo Lynch, Ltd., Jeremiah C. Lynch, Jr., for plaintiff.
Mary Ellen McCabe, Chief Legal Counsel, Department of Health.
The defendant's motion to dismiss the plaintiff's appeal (No. 78-355-Appeal) came before the court on the motion calendar for oral argument on April 5, 1979. The plaintiff filed an application with the defendant under title 23, chapter 16 of the General Laws to gain approval for the proposed construction in Portsmouth of a hospital limited to the treatment of alcoholic patients. A hearing officer for the Department of Health disapproved and denied the application. The plaintiff filed an appeal in Newport County Superior Court under § 23-16-9 and an appeal in Providence County Superior Court under G.L. 1956 (1977 Reenactment) § 42-35-15. The Newport appeal was thereafter transferred to Providence County and consolidated for hearing with the Providence appeal. After hearing, a Superior Court justice acting under the provisions of § 42-35-15 sustained the denial of the plaintiff's application by the Department of Health. The plaintiff, unsure of the correct appellate procedure, filed a petition for certiorari and a notice of appeal.
On January 18, 1979, this court denied plaintiff's petition for certiorari on the ground that the petition was without merit. American International Health Services, Inc. v. Rhode Island Department of Health, 121 R.I. 939, 396 A.2d 945 (1979).
At oral argument, plaintiff argued that he is not seeking review of the proceedings filed pursuant to § 42-35-15 but seeking instead a review of the Superior Court justice's decision pursuant to § 12-16-9. In addition, he asserts that he can seek review of the decision by direct appeal as in any civil proceeding.
The defendant argues that plaintiffs appeal is controlled by § 42-35-18 since the provisions of chapter 16 of title 23 are not within the exclusions enumerated in the Administrative Procedures Act.
We hold that the appeal to the Superior Court from a decision of the Health Department in such cases as here is governed by the provisions of § 23-16-9, and since such section does not provide for direct appeals from the Superior Court decision to this court that the proper vehicle for a review of the decision of the Superior Court is by a petition for certiorari to this court.
As stated above, the plaintiffs petition for certiorari has already been denied by this court.
The defendant's motion to dismiss the plaintiff's appeal is granted.