We have for review the Public Service Commission's (Commission) order revoking Cherry Communications, Inc.'s (Cherry) Certificate to Provide Interexchange Services in Florida. We have jurisdiction. Art. V, § (3)(b)(2), Fla. Const. We vacate the Commission's order revoking Cherry's license and remand with instructions for a new hearing consistent with this opinion.
Cherry is a switchless re-seller of long-distance telephone services. In 1992 the Commission issued Cherry a Certificate to Provide Interexchange Services in Florida. Subsequently, as a result of a number of alleged consumer complaints, the Commission ordered Cherry to show cause why it should not have its certificate cancelled or pay a substantial fine.
Cherry timely responded to the Commission's order and filed a Petition for Formal Proceeding. A hearing was conducted before the Commission wherein a Commission attorney served as the prosecutor. During the hearing, another attorney served as the Commission's legal advisor. After the hearing, the prosecuting attorney met with the Commission during its deliberations and submitted advisory memoranda, much of which the Commission adopted in a final order revoking Cherry's certificate to operate in Florida.
On appeal, Cherry has submitted three issues: (1) whether the Commission's post-hearing procedure violated Cherry's due process rights; (2) whether the Commission committed reversible error by admitting hearsay evidence; and (3) whether the Commission's order revoking Cherry's license is unsupported by substantial competent evidence.
Florida's Administrative Procedure Act empowers administrative agencies to prescribe rules and regulations for its administration, as well as to exercise quasi-judicial functions.
We have recognized that an agency should have great flexibility in carrying out its diverse functions and in the utilization of staff in a wide range of capacities. See South Florida Natural Gas v. Florida Pub. Serv. Comm'n, 534 So.2d 695 (Fla. 1988).
These holdings simply emphasize the point that in our adversarial system of justice, which places a premium on the fairness of the judicial or quasi-judicial procedure, the decisionmaker must not allow one side in the dispute to have a special advantage in influencing the decision. Obviously, for example, it would be unfair to allow a criminal prosecutor to advise a jury during deliberations.
Initially, we note that the Commission appears to have followed the holdings set out above by having two attorneys at the hearing, one to advise and one to prosecute. However, it appears that the prosecuting attorney, unlike the attorney in Ford, played dual roles in these quasi-judicial proceedings. In the role of prosecutor, the attorney cross-examined witnesses, made objections, and argued against Cherry. However, after the hearing, the same attorney assumed the role of advisor to the Commission, which was now supposedly deliberating as an "impartial" adjudicatory body. In this latter capacity, the prosecutor submitted memoranda to the Commission panel, which were not initially provided to Cherry. In the memoranda, the prosecutor commented on the evidence and made recommendations based on his analysis of the record. Significantly, the Commission adopted in substantial form the prosecutor's memoranda in its final order.
While the Commission initially acted wisely in separating the functions of legal prosecutor and legal advisor, we agree with petitioner that the playing field appears to have been titled when the prosecutor was invited into the deliberations and his advice was acted upon. Because the prosecution was given special access to the deliberations, this adjudicatory process "can hardly be characterized as an unbiased, critical review." Ridgewood Properties, Inc. v. Department of Community Affairs, 562 So.2d 322, 323 (Fla. 1990). Accordingly, we hold Cherry's rights were violated under the due process clause of our state constitution when the Commission invited the prosecutor to participate in its deliberations. See Art. I, § 9, Fla. Const.
Accordingly, we vacate the orders under review and remand for a new hearing consistent with this opinion.
It is so ordered.
GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING and WELLS, JJ., concur.
Id. at 116-17.