Opinion
No. 97-4875.
Opinion filed June 1, 1998.
An appeal from an order of the Division of Administrative Hearings.
Robert A. Weiss, Esquire, Tallahassee, and Thomas D. Watry, Esquire, Atlanta, Georgia, of Parker, Hudson, Rainer Dobbs, for Appellant.
Richard A. Patterson, Esquire, Tallahassee, for Appellee Agency for Health Care Administration.
Gerald B. Sternstein, Esquire, and Frank P. Rainer, Esquire, of Sternstein, Rainer Clarke, Tallahassee, for Appellee Variety Children's Hospital.
ON JOINT MOTION FOR REMAND
In this appeal from a final agency order, the appellant and the appellee agency file a joint motion for remand. We determine that the cause should be remanded.
South Miami Hospital (South Miami) filed an application for a Certificate of Need (CON) to provide a Level III Neonatal Intensive Care Unit (NICU). The Agency for Health Care Administration (AHCA) denied the application without a section 120.57(1) hearing because South Miami's application was for less than the 15 bed minimum unit size established by Florida Rule of Administrative Code 59C-1.042(5). South Miami and AHCA file a joint motion to remand the cause to AHCA to afford South Miami a formal hearing on its application. The joint motion states that AHCA has consistently interpreted the unit size rule provisions as permissive, including in a variance and waiver proceeding brought under section 120.542, Fla. Stat. (Supp. 1996). Appellee Variety Children's Hospital, a co-batched applicant, objects to remand asserting that AHCA "has not confessed error but has confessed confusion."
AHCA concedes that it improperly interpreted its rule to summarily deny a 120.57(1) hearing to South Miami in its CON application. South Miami filed its application before the effective date of the new statute and AHCA states that it should have given South Miami a formal hearing. AHCA admits that it has allowed smaller Level III NICUs to be approved in the CON process. This court has frequently stated that agencies are afforded wide discretion in the interpretation of their own duly adopted rules that they administer and, as a natural consequence of such recognition, a reviewing court should defer to any interpretation that is within the range of possible interpretations. See Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984); Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983); State, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981). This court has stated that it is not for the courts to dictate to the agency the wisdom of the agency's policy actions if such actions do not clearly appear to contravene the express or reasonably implied scope of powers legislatively delegated to it. See Florida Department of Corrections v. Provin, 515 So.2d 302, 305 (Fla. 1st DCA 1987). Judicial economy will be served by remand of the matter to afford South Miami the formal hearing the agency agrees that it should have provided.
Accordingly, the joint motion for remand is granted. The final order is reversed and remanded for proceedings consistent with this opinion.
ERVIN and BOOTH, JJ., concur; BENTON, J., dissents with written opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF, IF FILED.
Rightly or wrongly, the Agency for Health Care Administration (AHCA) entered a final order denying an application that South Miami Hospital, Inc. (South Miami) had made for a certificate of need for a neonatal intensive care unit. South Miami's application competed with a similar application filed by Variety Children's Hospital, Inc. (Variety). Named as a respondent in the petition that initiated formal administrative proceedings below, Variety has interests that are adverse to those of South Miami, whose application for a certificate of need Variety opposed in proceedings before the administrative law judge and AHCA.
When South Miami took its appeal, Variety became an appellee with full party status, having been a "party in the proceeding in the lower tribunal other than an appellant." Fla. R. App. P. 9.020(f)(2). See Investment Corp. of the State of Fla. v. Board of Bus. Regulation, 227 So.2d 674, 677 (Fla. 1969). Nevertheless, AHCA joined South Miami in the "joint" motion for remand now before us, a motion which Variety opposes rather than joins. Cf. Evans v. Green, 189 So. 232 (Fla. 1939). In granting this motion for remand, the court summarily reverses AHCA's order, which Variety seeks to uphold. The fact that AHCA has switched sides should not defeat Variety's rights to brief and argue its position on the merits of the appeal now being short-circuited. On that basis and without expressing a view on any other question, I respectfully dissent.