Department of Professional Regulation v. Williams

ON MOTION FOR REHEARING JOANOS, Judge. The motion for rehearing filed by the Department of Professional Regulation (DPR) is granted and the previously issued opinion is withdrawn. Dell V. Spiva petitioned DPR to have three state pilots at the Port of Miami declared unqualified for their positions. Spiva alleged that the three state pilots failed to meet the three-years experience requirement of Section 310.071(l)(b), Florida Statutes (1981), and that he had the required experience, therefore, he was entitled to be appointed a state pilot. Spiva and the three had taken the qualifying examination together, with the three scoring higher than Spiva. Their higher scores entitled the three to be appointed as state [503] pilots if all of the other required qualifications were equal. After a hearing was set to determine Spiva’s entitlement to be appointed as a state pilot, DPR moved to dismiss or abate the proceeding for failure to join the three appointed pilots as indispensable parties. The hearing officer denied DPR’s motion. By way of special appearance, the three appointed pilots objected to further proceedings, citing their non-party status and the fact that they had not been joined or noticed. After DPR petitioned for review, the hearing officer ordered that the three state pilots be noticed and given leave to intervene. Rule 28-5.205, made applicable to this proceeding by Rule 21SS-2.01, Florida Administrative Code, provides as follows: “Motions in opposition to a petition, which may be filed by any party, include motions to dismiss, to strike, and for more definite statement, and shall be filed within twenty (20) days of service of the petition. Any ruling by a presiding officer on a motion in opposition to a petition shall be incorporated in a recommended order, and can be finally disposed of only by the Agency head.” In accordance with this rule, we hold that the hearing officer’s order, denying DPR’s motion to dismiss, which has not been addressed by an agency, is not reviewablé by this court. See Department of Professional Regulation v. LeBaron, 443 So.2d 225 (Fla. 1st DCA 1983). Accordingly, our previously issued opinion is withdrawn. DPR’s petition for review is dismissed. WIGGINTON and ZEHMER, JJ., concur.