author: DONALDSON, Judge. THOMAS, Judge,

text:
    AFFINITY HOSPITAL, LLC, d/b/a Trinity Medical Center of Birmingham v. BROOKWOOD HEALTH SERVICES, INC., d/b/a Brookwood Medical Center, et al.
    2120090.
    Court of Civil Appeals of Alabama.
    Aug. 9, 2013.
    Certiorari Denied Oct. 11, 2013 Alabama Supreme Court 1121359.

      Dorman Walker of Balch & Bingham LLP, Montgomery; Ed R. Haden of Balch & Bingham LLP, Birmingham; and Carey McRae and Jennifer H. Clark of Bradley Arant Boult Cummings LLP, Birmingham, for appellant.
    John T. Mooresmith, John C. Morrow, and Kelli Fleming of Burr & Forman LLP, Birmingham; and James E. Williams of Melton, Espy & Williams, P.C., Montgomery, for appellee Brookwood Health Services, Inc. d/b/a Brookwood Medical Center.
    Mark D. Wilkerson and Dana H. Bill-ingsley of Wilkerson & Bryan, P.C., Montgomery, for appellee State Health Planning and Development Agency.
   DONALDSON, Judge.

Affinity Hospital, LLC, d/b/a Trinity Medical Center of Birmingham (“Trinity”), appeals the judgment of the Montgomery Circuit Court upholding a decision of the State Health Planning Development Agency (“SHPDA”) to grant a Certificate of Need (“CON”) to Brookwood Health Services, Inc., d/b/a Brookwood Medical Center (“Brookwood”), to construct a freestanding emergency department (“FED”) in Shelby County. This court has previously addressed this case on the discrete issue whether a lack of notice vitiated the CON granted by SHPDA. See Brookwood Health Servs., Inc. v. Affinity Hosp., LLC, 101 So.3d 1221 (Ala.Civ.App.2012). After this court, in Brookwood, reversed the trial court’s judgment and remanded the action, the trial court affirmed the decision of SHPDA to award the CON to Brookwood. For the reasons stated herein, we affirm the trial court’s judgment.

Facts and Procedural History

The facts, as presented in our prior opinion, are as follows:

“On June 23, 2008, Brookwood Health Services, Inc., d/b/a Brookwood Medical Center (‘Brookwood’), applied to the State Health Planning and Development Agency (‘SHPDA’) for a certificate of need (‘CON’) to build a freestanding emergency department (‘FED’). A FED is a fully functioning emergency department separately located from its hospital. Currently, there are no FEDs in Alabama. Brookwood owns and operates a hospital located in the City of Homewood, in Jefferson County. Brookwood’s proposed FED would be located near Highway 280 in Shelby County, approximately eight miles from Brookwood’s hospital.
“Two hospitals located in Birmingham, Affinity Hospital, LLC, d/b/a Trinity Medical Center of Birmingham (‘Trinity’), and St. Vincent’s Health Systems, Inc. (‘St. Vincent’s’), intervened in opposition to Brookwood’s CON application. Trinity and St. Vincent’s requested a contested-case hearing, and SHPDA appointed an administrative law judge (‘the ALJ’) to conduct the contested-case hearing. Trinity moved the ALJ to dismiss Brookwood’s application on the ground that Brookwood had failed to comply with Rule 410-l-7-.06(l)(a), Ala. Admin. Code (SHPDA) (‘the publication rule’). At the time, the publication rule provided, in pertinent part:
“‘Within thirty (30) calendar days of the filing [of the CON application], the applicant shall also provide proof of publication of notice of the application for two consecutive weeks in a newspaper of general circulation in the area(s) affected, in such size and using such forms as provided by [SHPDA].’
“The ALJ denied Trinity’s motion to dismiss Brookwood’s CON application. The ALJ subsequently held a contested-case hearing regarding the application. Following the hearing, the ALJ issued a recommended order concluding that Brookwood should be granted the CON. SHPDA’s Certificate of Need Review Board (‘the CONRB’) adopted the ALJ’s recommended order and issued the CON to Brookwood.
“Trinity appealed to the Montgomery Circuit Court, pursuant to § 41-22-20, Aa.Code 1975, a part of the Aabama Administrative Procedure Act, § 41-22-1 et seq., Aa.Code 1975. St. Vincent’s did not appeal. On appeal, Trinity made various arguments challenging the merits of the decision to grant the CON to Brookwood. Trinity also argued that Brookwood’s CON application should have been dismissed for failure to comply with the publication rule. On June 3, 2011, the circuit court entered a judgment reversing the CONRB’s decision to grant Brookwood the CON on the ground that Brookwood had failed to comply with the publication rule. In its judgment, the circuit court concluded that the CONRB’s decision was ‘fatally flawed,’ by Brookwood’s noncompliance with the publication rule. Curiously, the circuit court’s judgment also purported to ‘affirm’ the decision ‘with respect to the merits of the [FED] project and the need for the [FED] project.’ However, the judgment in fact reversed the CONRB’s decision to issue the CON. Brookwood appealed to this court, pursuant to § 41-22-20. Trinity filed a cross-appeal, challenging the circuit court’s judgment insofar as it purported to affirm the CONRB’s decision ‘with respect to the merits.’ This court heard oral arguments on July 10, 2012.
" This rule was amended effective September 23, 2011, to remove the publication requirement except for CON applications for drug-abuse centers and psychiatric beds. The above-quoted version of the publication rule is the version applicable in this case.”

Brookwood, 101 So.3d at 1222-23. Ater hearing oral argument, this court “conclude[d] that Trinity was not prejudiced by Brookwood’s noncompliance with the publication rule. That is, Brookwood’s failure to comply with the rule was harmless error.” Id. at 1228. Therefore, we reversed the trial court’s judgment and remanded the case for a decision on the merits.

On remand, the trial court affirmed the decision of SHPDA to award the CON to Brookwood. The trial court’s judgment does not include any specific findings of fact or conclusions of law. An administrative law judge (“ALJ”) made extensive findings of fact on the issues following the contested-case hearing referenced in the prior opinion of this court. Those findings were presented to and considered by SHPDA before it granted the CON. As noted in our prior opinion, Trinity has appealed SHPDA’s decision to award the CON to Brookwood to the trial court, pursuant to § 41-22-20(b), Aa.Code 1975. Trinity filed a timely appeal of the trial court’s judgment affirming SHPDA’s decision to grant the CON to this court pursuant to § 41-22-21, Aa.Code 1975, which has jurisdiction pursuant to § 12-3-10, Aa.Code 1975.

Standard of Review

As we stated in Brookwood, “[t]his court reviews a circuit court’s judgment as to an agency’s decision without a presumption of correctness because the circuit court is in no better position to review the agency’s decision than is this court. Clark v. Fancher, 662 So.2d 258, 261 (Ala.Civ.App.1994).” 101 So.Sd at 1225. The scope of judicial review of an order issued by SHPDA awarding a CON is provided in § 41-22-20(k), Ala.Code 1975:

“Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the rehable, probative, and substantial evidence on the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

Analysis

Trinity raises three issues on appeal: that the award of the CON is not consistent with the State Health Plan (“SHP”); that Brookwood’s proposed FED lacks the potential to be licensed by the Alabama Department of Public Health (“ADPH”); and that the proposed FED lacks “locational appropriateness.” In reviewing Trinity’s arguments, it appears that it urges reversal based on three provisions of § 41-22-20(k):that the decision is in excess of statutory authority (subsection (k)(2)); (3) that the decision violates an agency rule, specifically, Rule 410-1-6-.05, Ala. Admin. Code (SHPDA) (subsection (k)(3)); and that the decision is unreasonable, arbitrary, capricious, or exceeds SHPDA’s discretion (subsection (k)(7)). The scope of our review has been narrowly defined by the legislature, which has declared that “the agency order shall be taken as prima facie just and reasonable and [that] the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute.” § 41-22-20(k).

Trinity’s first contention is that “a CON can be issued only if it is consistent” with the SHP and that the CON at issue is not consistent with the SHP. The SHP is “[a] comprehensive plan which is prepared triennially and reviewed at least annually and revised as necessary by the Statewide Health Coordinating Council, with the assistance of the State Health Planning and Development Agency, and approved by the Governor.” § 22-21-260(13), Ala.Code 1975. The SHP “shall provide for the development of health programs and resources to assure that quality health services will be available and accessible in a manner which assures continuity of care, at reasonable costs, for all residents of the state.” Id.

Several statutes, as well as administrative regulations adopted pursuant to statutory authority, require SHPDA to evaluate whether a proposed health service is consistent with the SHP before a CON can be issued:

“No institutional health services which are subject to [the CON process] shall be permitted which are inconsistent with the State Health Plan.”

§ 22-21-263(a), Ala.Code 1975.

“The SHPDA, pursuant to the provisions of Section 22-21-274, shall prescribe by rules and regulations the criteria and clarifying definitions for reviews covered by this article. These criteria shall include at least the following:
“(1) Consistency with the appropriate State Health Facility and services plans effective at the time the application was received by the State Agency, which shall include the latest approved revisions of [specified] plans.”

§ 22-21-264, Ala.Code 1975.

“The proposed new institutional health service shall be consistent with the appropriate state health facility and services plans effective at the time the application was received by the state agency....”

Rule 410 — 1—6—.02(1), Ala. Admin. Code (SHPDA).

“Determination of a substantially unmet public requirement for the proposed health care facility, service, or capital expenditure shall be made before approval may be granted. The need shall be consistent with orderly planning within the state and community for furnishing comprehensive health care.”

Rule 410 — 1—6—.05(1), Ala. Admin. Code (SHPDA).

At the time Brookwood applied for the CON and throughout the proceedings below, the SHP did not address FEDs in any manner. Trinity argues that SHPDA could not have found Brookwood’s proposed FED to be consistent with the SHP because the SHP does not address and approve of FEDs or, alternatively, that SHPDA was required to find that the proposed FED was inconsistent with the SHP because it contains no mention of that type of facility. Specifically, Trinity argues that the SHP “does not address [FEDs]. By issuing a CON for a FED, SHPDA acted ‘in violation of [the] statutory provisions’ requiring consistency with the State Health Plan, see, e.g., § 22-21-264.” Trinity argues that SHPDA, in granting the FED CON to Brookwood exceeded its statutory authority and usurped the role of the Statewide Health Coordinating Council (“SHCC”), which is statutorily responsible for promulgating amendments to the SHP in conjunction with SHPDA. In sum, Trinity argues that Brookwood should be required to petition the SHCC to amend the SHP to include specific mention of and approval for FEDs before petitioning for a CON regarding its FED.

We are not directed to any authority that imposes an affirmative duty on the part of Brookwood or any CON petitioner to seek amendments to the SHP through SHCC before petitioning for a CON. Rather, the determination whether a project is “consistent” with the SHP is a determination statutorily committed to SHPDA by § 22-21-264. The legislature could have required an applicant to petition SHCC to determine of whether a project is consistent with the SHP before seeking to obtain a CON, but it did not do so. Therefore, the issue before us is not whether SHPDA has usurped the role of SHCC or obviated the purpose of the SHP, but whether SHPDA, in determinat-ing that a FED is consistent with, or not inconsistent with, the SHP, exceeded its statutory authority or discretion. Trinity argues that because FEDs are not specifically mentioned in the SHP, SHPDA could not proceed to determine whether the proposed project is consistent with the SHP. We hold that the determination of the consistency of a proposed project with the SHP is a matter entrusted to SHPDA. The pertinent statutes do not call upon SHPDA to determine whether a specific service or facility is mentioned and approved in the SHP, only whether such a service or facility is consistent with the SHP. Had the legislature wished to impose such a narrow review of CON petitions, it could have done so. The record includes the detailed “Recommended Findings of Facts and Conclusions of Law” (“the recommendation”) submitted by the ALJ to SHPDA, which SHPDA’s CON Review Board (“CONRB”) adopted in granting the CON. The recommendation directly addresses the issue of the consistency of the proposed FED to the SHP. Specifically, the recommendation states that “the SHP contains no specific provision or need methodology applicable to FEDs or emergency services. It is equally clear, however, that the SHP does not contain any provisions which prohibit, restrict or otherwise place any requirements on FEDs or emergency departments.” The recommendation observes that the project “is not inconsistent with any provision of the SHP.” The recommendation examines the terms “inconsistent” and “consistent” by reference to multiple dictionaries, notes the difference present when an application concerns a specifically governed service or facility, references the expert testimony offered during the course of the proceedings, and cites to the prior precedent and practice of SHPDA in handling petitions for similar projects, such as ambulatory surgical centers and other off-campus hospital departments, as to which SHPDA has granted CONs before their direct inclusion in the SHP. The findings in the recommendation relied upon by SHPDA in granting the FED CON to Brookwood are based on the record presented and demonstrate that the CONRB carefully considered whether the proposed project was consistent with the SHP. The scope of our review, as provided in § 41-22-20(k), specifically states that “the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute.” “ ‘This court and the trial court must give substantial deference to an agency’s interpretation of its rules and regulations. ‘[A]n agency’s interpretation of its own regulation must stand if it is reasonable, even though it may not appear as reasonable as some other interpretation.’ ’ ” Fowler v. Johnson, 961 So.2d 122, 130 (Ala.2006) (quoting Mobile Cnty. Pers. Bd. v. Tillman, 751 So.2d 517, 518 (Ala.Civ.App.1999)). The findings and conclusions adopted by SHPDA are not unreasonable, arbitrary, capricious, or beyond the statutorily granted authority and discretion of SHPDA. See § 41-22-20(k)(2), (3), and (7).

Trinity next argues that SHPDA “cannot issue a CON for a health care facility without a showing that the proposed facility can be licensed” by ADPH. Statutory provisions and administrative regulations require SHPDA to find that a proposed facility has the “reasonable potential ... to meet licensure standards” before granting a CON. § 22-21-264(4)g, Ala.Code 1975; see also Rule 410-1-6-.05(l)(g), Ala. Admin. Code (SHPDA). ADPH is a separate agency. ADPH, not SHPDA, determines whether to license a health-care facility like the FED. The pertinent statute and regulation require SHPDA to determine the “[r]easonable potential,” not the certainty or even probability, that a proposed facility will meet licen-sure standards. At the time Brookwood applied for the CON for the FED and throughout the proceedings, ADPH had not issued regulations or criteria for licensing FED facilities. Trinity argues that SHPDA could not have determined that Brookwood’s FED had the “reasonable potential” to meet licensure standards unless such standards were in place. Trinity points to a portion of a letter from the deputy general counsel of ADPH to Brook-wood’s counsel dated April 24, 2009, which states: “[S]o there is absolutely no misunderstanding, please be advised that the [ADPH] intends to require that any free standing emergency department ... be licensed by the [ADPH].... The current thinking by [ADPH] staff is that [it] will need to propose new rules for hospital-based free standing emergency departments, which, of course, would be subject to public comment.” The letter does not indicate that ADPH intended to deny li-censure to the proposed FED, should the project come to fruition. Rather, it suggests that there is a reasonable expectation ADPH would use its established procedures to promulgate rules to meet the realities of the new facility. This correspondence notwithstanding, the recommendation from the ALJ provided detailed findings of fact regarding the potential-for-licensure requirement of the pertinent statute and regulation with respect to this particular FED. Those findings include:

“147. The evidence in this case demonstrated a reasonable potential that the [proposed FED] will comply with all applicable licensure rules. Brookwood is currently a licensed hospital, and has been licensed since it began operating in 1973, including for the provision of emergency services....
“148. Further, there are several different ways by which ADPH could license the proposed facility. First, the evidence demonstrates that the 280 ER can be licensed under Brookwood’s hospital license.... The [proposed FED] will be an off-campus department of Brook-wood’s main hospital, operating under the hospital’s general license, just like St. Vincent’s gastroenterology lab at One Nineteen Health & Wellness.
“149. Second, the [proposed FED] could be licensed as a separate hospital facility, yet still operate as part of the hospital and under the hospital’s management.” See Ala. Admin. Code § 420-5-7-.02(3)(b)(A separate license shall be required for each facility when more than one facility is operated under the same management.’)....
“150. In that regard, Brookwood has met with the ADPH on several occasions to discuss the operation of the [proposed FED] and the licensure of FEDs. The ADPH is presently engaged in the process of drafting licensure rules for FEDs, and these rules are expected to be in place by the time Brookwood’s requested CON is granted and the facility is constructed and operational.... ”

(Citations omitted.) Those findings are entitled to deference and this court is not authorized to substitute its judgment as to the findings of SHPDA on this issue. See § 41-22-20(k) (“the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute”)

Finally, Trinity argues that Brook-wood failed to demonstrate “locational appropriateness” of its proposed FED because Brookwood “has no arrangement which will allow it to purchase the real property where it indicated the FED would be located.” The applicable statute and administrative regulation require that SHPDA consider “[e]vidence of the locational appropriateness of the proposed facility or service such as transportation accessibility, manpower availability, local zoning, environmental health, etc.” § 22-21 — 264(4)f, Ala.Code 1975; See also Rule 410-l-6-.05(l)(f), Ala. Admin. Code (SHPDA). The statute and the regulation do not require proof of ownership or right to acquire property at a particular location, only proof of locational appropriateness of the proposed facility. The ALJ’s recommendation provide a detailed factual analysis supporting the appropriateness of the location, including:

“19. Although the service area is heavily populated, particularly the northwestern portion of the service area, there are presently no ER services in this area. Area residents needing ER services must travel the U.S. Highway 280 corridor (’280 Corridor’) to Brookwood, the closest ER services provider.... During rare times of light traffic, good weather and no accidents, the driving time down 280 from Highway 199, the location of the [proposed FED], to Brookwood is at best 20 minutes.... In ordinary traffic, the drive time is at least 30 minutes or more, and, in heavy traffic, can be an hour. Bad weather or an accident can bring traffic to a halt.
“20. Accordingly, area residents are in need of more readily available ER services .... Most importantly, every year victims of heart attacks, strokes and other emergencies suffer worse outcomes due to delays in obtaining ER services up to and including death, because they could not get to Brookwood’s ER in time. Thus, for some, Brookwood’s [proposed FED] truly will be a matter of life and death.
“25. When patients present to the [proposed FED], they will be seen and evaluated at least 30 minutes sooner, and probably more, than if they had traveled down the 280 corridor to the Brookwood ER.... If a patient needs further treatment in the hospital, such as in an operating room, or a cath lab, the [proposed FED] personnel will notify the hospital immediately, so that the operating rooms or cath labs can be readied, and any necessary physicians or after hours call teams assembled, while the patient is en route from the [proposed FED] via ambulance to the hospital, thereby saving valuable time....
“33. Currently there are serious problems with access to ER services for heart attack victims in the 280 service area. Once a person leaves Birmingham traveling southeast on U.S. 280, there are no ER services available until Coosa Valley Medical Center (‘Coosa Valley’) in Sylacauga, Alabama, over 40 miles away....
“39. The evidence was conclusive that the [proposed FED] will greatly improve emergency services for heart attack victims, and will save lives.... ”

Therefore, Trinity has not shown that SHPDA exceeded its statutory authority by granting the CON or that it rendered an unreasonable, arbitrary, or capricious decision in that regard.

Conclusion

It was within the discretion afforded to SHPDA to determine whether the proposed FED was consistent with the SHP, whether it had the reasonable potential to be licensed, and whether the proposed location was appropriate. Applying the required deferential standard to SHPDA’s decision, the evidence is insufficient to show that SHPDA exceeded its authority, violated any rules, or rendered an unreasonable, arbitrary, or capricious decision by making those determinations in favor of Brookwood and against Trinity. Applying § 41-22-20(k), we have no basis to reverse that decision. Therefore, we affirm the trial court’s judgment affirming SHPDA’s grant of the FED CON to Brookwood.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, J., concur.

THOMAS, J., concurs in the result, with writing.

MOORE, J., concurs in the result, without writing.

THOMAS, Judge,

concurring in the result.

Although I agree that the judgment of the Montgomery Circuit Court affirming the award by the State Health Planning and Development Agency (“SHPDA”) through the Certificate of Need Review Board (“CONRB”) of a Certificate of Need (“CON”) to Brookwood Health Services, Inc., d/b/a Brookwood Medical Center (“Brookwood”) to construct a freestanding emergency department (“FED”) should be affirmed, I would approach two of the arguments asserted by Affinity Hospital, LLC, d/b/a Trinity Medical Center of Birmingham (“Trinity”), differently. As a result, I must concur in the result.

Trinity’s first and main argument is premised on statutory-construction principles. Trinity does not, and, arguably, cannot, argue that SHPDA is not endowed with the right, and indeed the duty, to determine whether a project for which a CON is sought is consistent with the State Health Plan (“the SHP”). See Ala.Code 1975, § 22-21-264(l)a (providing that the criteria to be utilized by SHPDA in reviewing applications for CONs should include “[consistency with the appropriate State Health Facility and services plans effective at the time the application was received ..., which shall include the latest approved revisions of [specified] plans,” including the SHP). What Trinity does argue is that SHPDA’s review of whether a project is consistent with the SHP is limited to determining whether the proposed project “track[s] an express provision in the [SHP].” Trinity’s reply brief, p. 10. Trinity contends that the legislature’s use of the different terms “consistent” and “inconsistent” in various statutes governing SHPDA review, see, e.g., Ala.Code 1975, § 22-21-266(1) (prohibiting the issuance of a CON unless a proposed facility or service is “consistent with” the SHP), and § 22-21-263(a) (stating that no institutional health services “which are inconsistent with the [SHP]” are permitted), is meaningful and that the terms have distinctly different meanings; Trinity relies on the principle of statutory construction that requires us to presume that the use of different terms by the legislature in the same statute implies that the terms have different meanings and are not redundant. See Surtees v. VFJ Ventures, Inc., 8 So.3d 950, 975 (Ala.Civ.App.2008) (“The courts must presume that ... the legislature intended that each word of [a] statute have effect, and we must also presume that the legislature did not include meaningless language or redundancies in the statute.”). Trinity further suggests specifically that “inconsistent” means “contradicting an express provision in the [SHP].” I am not convinced.

The terms “consistent” and “inconsistent” are but two forms of the word “consistent.” That is, “inconsistent” is the opposite or antonym of “consistent,” created by the addition of the prefix “in,” which, in this context, means “not.” Although the principles of statutory construction require us to assume that the legislature used the terms it employed in the statute deliberately and did not use redundant terms, we must also construe those terms that are not defined by the legislature by using the plain, ordinary, and commonly understood meanings of those terms. Pleasure Island Ambulatory Surgery Ctr., LLC v. State Health Planning & Dev. Agency, 38 So.3d 739, 742 (Ala.Civ.App.2008) (quoting Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003)). The dictionary definition of “consistent” is “marked by harmony, regularity, or steady continuity: free from variation or contradiction” or “marked by agreement: compatible.” Merriamr-Webster’s Collegiate Dictionary 266 (11th ed. 2003) “Inconsistent” is defined as “not compatible with another fact or claim” or “containing incompatible elements.” Id. at 631. Thus, when the legislature required that SHPDA consider whether a proposed service or facility that is the subject of a CON application is consistent with the SHP or whether it is inconsistent with the SHP, it required the same analysis. The question SHPDA must ask is whether the service or facility proposed in the CON application is compatible with or incompatible with the SHP.

Nothing in the language of the several statutes indicates that SHPDA may approve a CON only if the SHP directly addresses the service or facility proposed in the CON application. That is, based on the language used in some of the statutes, it does not appear that SHPDA may approve only those proposed services or facilities that “track an express provision in the SHP”; instead the language used by the legislature permits SHPDA to determine that a proposed service or facility is consistent with the SHP if it is compatible with the SHP. Likewise, although the language in some of the statutes prohibits the approval of a CON when the proposed service or facility is inconsistent with the SHP, that language requires SHPDA to determine whether the proposed service or facility is incompatible with the SHP and does not confine its review to determining whether a proposed service or facility “conflicts with an express provision in the SHP.”

Because the terms “consistent” and “inconsistent” are undefined in the statutes, I read the statutes to allow SHPDA to determine whether a proposed service or facility is compatible or incompatible with the SHP. No language used in the statutes leads me to the conclusion that those terms have different meanings than their plain, ordinary, and commonly understood meanings. I cannot read into the statutes words that are not there or construe the terms used by the legislature as narrowly as Trinity would have us do.

Furthermore, regarding the requirement that SHPDA consider the “locational appropriateness” of the proposed facility, § 22-21-264(4)f, Trinity argues that SHPDA could not have determined such appropriateness because, at the time of the hearing before the hearing officer, Brook-wood did not have proof that it had the right to acquire the property at the location it had proposed to build the FED. It is without question that Brookwood could not have purchased the property without running afoul of § 22-21-265 and Ala. Admin. Code (SHPDA), r. 410-1-2-.19, which prohibit an entity from acquiring, constructing, or operating a new health service before receiving a CON; “acquisition” is defined in § 22-21-260(1) as “[obtaining the legal equitable title to a freehold or leasehold estate or otherwise obtaining the substantial benefit of such titles or estates, whether by purchase, lease, loan or suffrage, gift, devise, legacy, settlement of a trust or means whatever, and shall include any act of acquisition.” See Lloyd Noland Found., Inc. v. City of Fairfield Healthcare Auth., 837 So.2d 253, 264 (Ala.2002) (considering a similar argument relating to whether an entity had standing to seek a CON when it did not have legal title to beds for which it sought that CON). Because a party seeking a CON cannot acquire title to the property upon which it intends to construct a new health-care facility before receiving a CON, the decision that a location is appropriate is often based on information regarding a tentative location, which may not always be the final location of the project.

Trinity argues that Brookwood could have continued in effect an option to purchase the property, which it had held through a development agency, before the date of the hearing before the hearing officer. It is not within our province to question the business decisions made by Brookwood. Brookwood presented evidence indicating that it felt confident that it could secure the property originally planned for the site or other nearby property. Based on the evidence before the hearing officer, the hearing officer and SHPDA concluded that the location Brook-wood proposed is an appropriate location for the proposed FED. I agree that the evidence supports that determination.

If Brookwood cannot secure the location it originally proposed as a site for the FED, it may seek review of a proposed project modification under Ala. Admin Code (SHPDA), r. 410-l-10-.03(l)(b), which provides that in order to make a change in a project after a CON has been secured, an application must be made in writing to SEPDA. A party seeking approval of a change in a project is required to certify that all parties in the underlying CON proceeding have been provided notice of the change application. Id. According to the rule, a proposed change must be reviewed, depending on the level of the change, by the executive director of SHPDA or by the full CONRB. Ala. Admin. Code (SHPDA), r. 410-1-10-.03(2). Thus, if the FED project must be relocated, Brookwood, as it admitted at oral argument, must seek approval from SHPDA of that change to the project.

In conclusion, I conclude that the language of the relevant statutes permits SHPDA to consider whether a proposed project is compatible with or incompatible with the SHP and does not limit SHPDA to granting a CON for a project only if the health service or facility is specifically referenced in the SHP. I also conclude that the locational appropriateness of the proposed FED was properly considered and found to exist, despite the fact that Brook-wood does not have the right to the property at the exact location it proposed to construct the FED. Accordingly, I concur in the result of the main opinion.

      . Section 22-21-261, Ala.Code 1975, provides:
      "The Legislature of the State of Alabama declares that it is the public policy of the State of Alabama that a certificate of need program be administered in the state to assure that only those health care services and facilities found to be in the public inter-
      est shall be offered or developed in the state. It is the purpose of the Legislature in enacting this article to prevent the construction of unnecessary and inappropriate health care facilities through a system of mandatory reviews of new institutional health services, as the same are defined in this article.”

      . At the oral argument of this case, Brook-wood agreed that the CON is valid only for the specific location contained in the application it submitted, i.e., the intersection of Highway 280 and 119 in Shelby County. Any other location would, according to the parties, require a separate CON process to be initiated.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Shirley TAYLOR v. HUNTSVILLE CITY BOARD OF EDUCATION.
    2120255.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2013.
    Certiorari Denied Jan. 10, 2014 Alabama Supreme Court 1121389.

      Brian Austin Oakes of White & Oakes, LLC, Decatur; and Sam Heldman of The Gardner Firm, Washington, D.C., for appellant.
    J.R. Brooks and Taylor P. Brooks of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee.
   PITTMAN, Judge.

Shirley Taylor, a tenured teacher who had been employed by the Huntsville City Board of Education (“the Board”) for 18 years before the Board dismissed her from employment on March 2, 2012, appeals from a judgment of the Madison Circuit Court granting the Board’s petition for a common-law writ of certiorari to the administrative law judge (“ALJ”) who reviewed the Board’s decision and quashing the ALJ’s order requiring the Board to provide Taylor with a pretermination hearing, pursuant to § 16-24C-6(b), Ala.Code 1975, a part of the Students First Act of 2011, § 16-24C-1 et seq., Ala.Code 1975 (“the Act”). We reverse the judgment.

Factual and Procedural Background

Taylor is a 56-year-old third-grade teacher who had been employed by the Board since 1994. Before becoming a teacher, Taylor had been in active-duty military service with the United States Army for 12 years, including a deployment to the Persian Gulf for Operation Desert Storm. She remained in the Army Reserve while she was a teacher and retired from the Army in 2008 with the rank of lieutenant colonel.

On February 10, 2012, the Board mailed two letters to Taylor; one letter was sent by certified mail, return receipt requested, and the other by regular, first-class mail. The letters informed Taylor that the Board proposed to terminate her employment, stated the grounds for termination, and advised her that she had 15 days to request a hearing and contest the proposed termination, failing which, the letter stated, the Board would vote on her dismissal at a meeting on March 1, 2012. The Board, not having received by March 1, 2012, a request from Taylor for a hearing, voted that day to terminate her employment. On March 2, 2012, the Board hand-delivered a letter to Taylor at the school where she was employed, informing her of the Board’s decision to terminate her employment, and had her escorted from the campus.

Taylor denied that she had received a notice-of-proposed-termination letter and requested that the Board rescind its vote to terminate her employment and grant her a hearing. The Board denied that request. On March 15, 2C12, Taylor appealed directly to the Chief Administrative Law Judge of the Office of Administrative Hearings, Division of Administrative Law Judges, Office of the Attorney General, pursuant to § 16-24C-12, Ala.Code 1975, alleging that the Board had failed to provide her with notice and a hearing before it terminated her employment.

The Board responded, asserting that it had complied with the notice provision of the Act, specifically with § 16-24C-6(k), Ala.Code 1975, which provides:

“Unless otherwise provided, notice for all purposes under this chapter shall be given by United States mail, certified delivery, by private mail carrier for next business day delivery, or by physical delivery to the employee or the last known address of the employee. Notice by certified mail or private mail carrier shall be deemed received by the employee and complete for purposes of this chapter two business days after the notice is deposited for certified delivery in the United States mail or placed with a private mail carrier for next business day delivery. The employer has the burden of producing evidence that service was [effected in the manner permitted by this chapter, but the employee has the burden of proving that such service was not properly made.”

(Emphasis added.) The Board maintained that it had satisfied the requirements of § 16-24C-6(k) by depositing the notice of proposed termination in the mail for certified delivery, and, it contended, it had also taken extra steps to ensure that Taylor was notified of the proposed termination of her employment by sending an additional letter by regular, first-class mail.

The ALJ conducted a hearing on June 18, 2012, at which it received documentary and testimonial evidence. Taylor presented her own testimony as well as the testimony of her neighbors, Quirante Hereford and Andrew Coe. The Board presented the testimony of Belinda Williams, the director of human resources for the Huntsville City School System (“HCSS”), and Lisa Teague, Williams’s administrative assistant. On August 6, 2012, the ALJ rendered a comprehensive, 29-page order requiring the Board to provide Taylor with a hearing. In its findings of fact, the ALJ stated:

“Taylor denied receiving both the certified mail letter and the letter sent by first class mail. Taylor testified that given her military background, she is conscientious of deadlines. Had she received the letter, she would have immediately sought help from her local Alabama Education Association. Underscoring her testimony was the fact [that,] immediately following the notice of her dismissal, she sought assistance directly after being escorted from the school.
“Prior to voting upon Taylor’s dismissal, neither the Board, nor anyone at HCSS checked on the tracking of the certified mail letter to determine whether or not delivery had been accomplished, despite the fact that the Board [had] paid an additional fee for a return receipt of the February 10, 2012, letter and had access to tracking of the certified mail letter. Belinda Williams, the Director of Human Resources for HCSS, inquired only whether Taylor [had] filed a notice of contest on or before February 29, 2012, but did not confirm that a return receipt had been issued for the certified mail; she did not attempt to track the certified mail through the United States Postal Service [ CUSPS’) ] website; and she did not confirm that Taylor [had] received the letter through any other source. No attempt was made to hand deliver the letter to Taylor at the school, even though Taylor taught on campus daily and the school provided a mail box for each teacher, which Taylor checked at least three or four times a day. No one verbally confirmed Taylor’s awareness of the pending action.
“The [USPS] provides user-friendly methods for tracking certified mail through every routed postal location, delivery attempts, and actual delivery. The USPS assigns every item of certified mail an internal tracking number. The entity mailing the certified mail item may review the tracking information via the internet by simply going to the USPS website and entering the certified mail tracking number. Despite the fact that the Board elected to accomplish service by certified mail, no one attempted to track the delivery information prior to the Board’s vote on March 1, 2012. Lisa Teague testified that, as a matter or course, the school system never utilized the tracking system to see if a certified letter had been received. The HCSS addressed the letter to Taylor’s correct address on Sanibel Circle in Madison, Alabama.
“The Board introduced the USPS tracking information and a copy of the envelope as exhibits in this case. The internal tracking sheet begins on February 10, 2012, and reflects that the item was mailed at 4:04 p.m. from a Huntsville Post Office. The USPS processed the letter on February 11, 2012, at 4:35 a.m. and it arrived at the ‘Unit’ (which is assumed to be the Madison [City] Post Office) on February 11, 2012, at 8:35 a.m. at the 35758 zip code (one digit different [from] Taylor’s [35757] zip code). That same day, someone apparently wrote what appears to be an ‘NC, 2-11-12, KAP’ on the outside of the envelope. The next entry made on the USPS tracking summary reflects that a notice was left on February 11, 2012, at 11:14 a.m. in Madison, Alabama at a location in the 35757 zip code area. No additional evidence demonstrates that the postal carrier left the notice at Taylor’s hone. Taylor has denied receiving any notice.
“Subsequent events cast significant doubt on the accuracy of the USPS information and if delivery was made to Taylor’s home. On the outside of the envelope, two sets of numbers exist, as if to reflect dates. These numbers are 2-17 and 2-28. These dates do not directly match the USPS.com tracking information data. No data entry exists for either February 17 or February 27. On February 28, 2012, the USPS Tracking data states ‘Unclaimed.’ No zip code is recorded on the tracking sheet as it [was] on the previous deliveries. On the outside of the envelope, a postal carrier checked ‘Unclaimed.’ At some point, however, someone other than Taylor attempted to sign the green return-receipt card. At the hearing, the parties could not agree on the name reflected regarding the green card’s handwritten signature. The unclear cursive handwriting could be read to reflect the name ‘Doug’ or ‘Mary or ‘Marg.’ However, no one even suggested that the signature even remotely looked like Taylor’s handwriting. No conclusive evidence demonstrated where this attempted delivery had been made or the individual upon whom the USPS attempted service. However, given the handwriting, which did not appear to belong to Taylor, the greater weight of the evidence demonstrates that the certified mail was, in all probability, not delivered to the correct address or delivery was attempted upon the wrong individual. No evidence was presented that anyone other than Taylor resides in her home.
“The next entry on the USPS tracking sheet, dated March 4, 2012, states ‘moved, left no address.’ Again, no zip code is provided for the area in Madison, which confirms what area of Madison in which delivery may have been attempted. The clear, undisputed evidence demonstrated that Taylor had not moved; rather, she has resided at her current address at 124 Sanibel Circle in Madison, Alabama for the last four years and continues to reside at that address today. On the actual certified mail envelope, the envelope reflects that it was ‘unclaimed,’ but no date is provided when this determination was made or by whom. It is unknown whether the ‘moved, left no forwarding address’ entry was merely a data entry error, or if the postal carrier left the attempted delivery notice at the wrong house where this inaccurate information was provided by the resident. All that can be certain is that Taylor has not moved in recent years and this entry casts doubt on whether delivery was attempted at the correct location.
“Finally, the February certified mail notice was returned on March 7, 2012 to Huntsville, AL at the 35801 zip code. Thereafter, USPS returned the letter back to HCSS, Department of Human Resources on or about March 10, 2012.
“Andrew Coe and Quirante Hereford, both neighbors in Sanibel Circle where Taylor resides, testified that their assigned postal carrier often mistakenly delivered mail to the wrong household. In most cases, neighbors would either walk the incorrectly delivered mail to the neighbor’s house or place it back in the mailbox for the postal carrier to reroute to the correct address. Taylor’s counsel offered two indictments in the Northern District of Alabama of postal carriers who had been charged with theft of mail items, one of which was employed at the Madison, Alabama Post Office. However, the evidence was insufficient to establish that either of these mail carriers actually handled the proposed termination letter which is at issue.
“... [Although the Board did not have actual notice that the certified mail had not been delivered to Taylor prior to voting on the proposed recommendation for termination, the Human Resources Department did have access to notice of the non-delivery via access to internal tracking information from the USPS informing them that the letter had not been delivered. The Human Resources Department could have merely entered the assigned tracking number on the USPS website to reveal the delivery attempts associated with the letter. Moreover, although not required to do so, the Human Resources Department paid for and requested a ‘return receipt.’ That return receipt had not been returned, and no evidence suggests that the Human Resources Department checked to see if the receipt had been returned.
“With regard to the copy of the proposed termination letter that the HCSS mailed by first class mail, the testimony demonstrated that it had been mailed on February 10, 2012, although no copy was provided of the outside of this envelope or the postal information associated with the letter. In addition to not receiving the letter mailed by certified mail, Taylor also denied receiving the letter mailed by first class mail. The testimony demonstrated that this first class mail letter contained the return address of the Department of Human Resources, HCSS; yet the USPS did not return the first class letter to the HCSS Human Resources Department. Thus, although the fact that it was not returned suggests receipt of the letter by someone, no conclusive evidence demonstrates delivery [to] or receipt by Taylor.”

The ALJ ultimately concluded that Taylor was entitled to a hearing on either of two independent grounds, namely: (1) that the Board had failed to comply with the notice provisions of the Act because, despite having had constructive notice (via the postal service’s eertified-mail tracking system) that the certified letter had not been delivered to Taylor, the Board had done nothing more to attempt to notify Taylor of the proposed termination of her employment; and (2) that, even assuming that the Board had complied with the notice provisions of the Act, such compliance created only a rebuttable presumption of Taylor’s receipt of the letter, similar to the presumption that arises under the common-law principle referred to as the “mailbox rule,” and Taylor’s evidence had rebutted that presumption.

On August 16, 2012, the Board filed in the Madison Circuit Court a petition for a common-law writ of certiorari or, in the alternative, a notice of appeal of the ALJ’s decision. Following a review of the administrative record and a hearing- on the Board’s motion to quash the ALJ’s August 6, 2012, order, the circuit court determined that the ALJ’s decision was not supported by legal evidence and that the ALJ had incorrectly applied the law to the facts. Specifically, the circuit court held:

“The notice provision of [the Act] plainly states that ‘[njotiee by certified mail ... shall be deemed received by the employee and complete for purposes of this chapter two business days after the notice is deposited for certified delivery in the United States mail.’ Alabama Code [1975,] § 16-24C-6(k) (emphasis added). The statute means exactly what it says. The Board’s duty to provide notice to Taylor was complete under this statute two days after the notice was deposited in the United States mail for certified delivery to Taylor.
“The ALJ’s interpretation of this statute is fundamentally inconsistent with the statute’s plain language.”

The circuit court granted the Board’s motion, issued a writ of certiorari, and quashed the ALJ’s order. Taylor filed a timely notice of appeal to this court.

Standard of Review

“The circuit court’s standard of review of a petition for a common-law writ of certiorari is well settled. On common-law certiorari review, the circuit court’s ‘scope of review was limited to determining if the [ALJ’s] decision to [grant the employee a pretermination hearing] was supported by legal evidence and if the law had been correctly applied to the facts.’ Evans v. City of Huntsville, 580 So.2d 1328, 1325 (Ala. 1991). ‘In addition, the court was responsible for reviewing the record to ensure that the fundamental rights of the parties, including the right to due process, had not been violated.’ Id. ‘Questions of fact or weight or sufficiency of the evidence will not be reviewed on certiorari.’ Personnel Bd. of Jefferson County v. Bailey, 475 So.2d 863, 868 (Ala.Civ.App.1985).

“ ‘ “ ‘[A] common-law writ of certiorari extends only to questions touching the jurisdiction of the subordinate tribunal and the legality of its proceedings. The appropriate office of the writ is to correct errors of law apparent on the face of the record. Conclusions of fact cannot be reviewed, unless specially authorized by statute. The trial is not de novo but on the record; and the only matter to be determined is the quashing or the affirmation of the proceedings brought up for review.’ ” ’
“G.W. v. Dale County Dep’t of Human Res., 939 So.2d 931, 934 n. 4 (Ala.Civ.App.2006) (quoting City of Birmingham v. Southern Bell Tel & Tel. Co., 203 Ala. 251, 252, 82 So. 519, 520 (1919), quoting in turn Postal Tel. Co. v. Minderhout, 195 Ala. 420, 71 So. 91 (1916)). ‘This court’s scope of appellate review is the same as that of the circuit court.’ Colbert County Bd. of Educ. v. Johnson, 652 So.2d 274, 276 (Ala.Civ.App.1994).”

South Alabama Skills Training Consortium v. Ford, 997 So.2d 309, 324 (Ala.Civ.App.2008) (bracketed language altered; footnote omitted).

Discussion

Taylor argues that the ALJ’s decision was correct and that the circuit court erred in concluding otherwise. Specifically, Taylor maintains that the circuit court erroneously construed § 16-24C-6(k), providing that “[njotice by certified mail ... shall be deemed received by the employee and complete for the purposes of this chapter two business days after the notice is deposited for certified delivery in the United States mail” (emphasis added), as having established a conclusive, rather than a rebuttable, presumption that she had received the notice two days after the Board had mailed the notice.

“[A] presumption is a creature of law that assists in the matter of proof by providing that in certain situations proven facts may be strong enough that from them the trier of fact may conclude that the presumed fact exists. Presumptions may be conclusive or rebuttable. Conclusive presumptions ... are those applied when because of certain proven facts the law requires the finder of fact to find another — presumed—fact. On the other hand, rebuttable presumptions, found throughout the legal system, are those under which a certain quantum of evidence gives rise to an inference of some other fact, but as to which fact the opposing party may offer evidence in rebuttal. Rebuttable presumptions are generally created by law — under statutes, case law, or rules of court — for such reasons as the promotion of public policy (as in presumptions favoring the legitimacy of children) [or] because the presumption is based upon human experience (illustrated by the presumption against suicide).... ”

Rule 301, Ala. R. Evid. (Advisory Committee’s Notes).

“ ‘[T]he Tenure Act [the predecessor to the Act] grants to teachers a property interest which, when perfected, is entitled to constitutional due process protection.’ ” Board of Sch. Comm’rs of Mobile Cnty. v. Glenn, 70 So.3d 340, 343 (Ala.Civ.App.2010) (quoting Smith v. Alabama State Tenure Comm’n, 430 So.2d 877, 879 (Ala.Civ.App.1982), affd, 430 So.2d 880 (Ala.1983)). Section § 16-24C-2, Ala.Code 1975, a provision of the Act entitled “legislative intent,” states:

“The purpose of this chapter is to improve the quality of public education in the State of Alabama by [, among other things]:
“(1) Providing for fundamental fairness and due process to employees covered by this chapter.”

Due-process protections require, at a minimum, that “deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950). “[The] right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” Id. at 314.

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance....
“But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.”

Id. at 314-15 (emphasis added; citations omitted). To construe subsection (k) of § 16-24C-6 as having established a conclusive presumption that Taylor had received the notice of proposed termination of her employment two business days after it had been mailed would, we think, be tantamount to approving a process that is “a mere gesture” and to countenance a course of action that is not what “one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Mullane, supra (emphasis added). Cf. War Eagle Village Apartments v. Plummer, 775 N.W.2d 714 (Iowa 2009).

In Plummer, the Supreme Court of Iowa considered a similar statute that permitted service of an eviction notice by certified mail, with no requirement that a signed return receipt be obtained. At the time Plummer was decided, § 562A.29A, Iowa Code, provided:

“Notwithstanding sections 631.4 and 648.5, the written notice of termination required by section 562A.27, subsection 1, a notice of termination and notice to quit under section 562A.27A, a notice to quit as required by section 648.3, or a petition for forcible entry and detainer pursuant to chapter 648, may be served upon the tenant in any of the following ways:
“1. By personal service.
“2. By sending notice by certified or restricted certified mail, whether or not the tenant signs a receipt for the notice.”

The Iowa court held that the statute “violate[d] the due process clause of the Iowa Constitution on its face” because “the statutory notice scheme [did] not require service which is reasonably calculated to reach the intended recipient.” 775 N.W.2d at 723.

In our judgment, subsection (k) establishes a rebuttable presumption, based on human experience, that an employee has received notice of a proposed termination of his or her employment two business days after the employer deposits the notice with the postal authorities for certified delivery to the employee. Despite the absence of the words “presume” or “presumption” from the text of subsection (k), our construing the statute to create a re-buttable presumption does not disregard the plain meaning of the statute; indeed, our construction is consistent with that portion of the statute indicating that the employee “has the burden of proving that ... service was not properly made.” We acknowledge that the words “deemed” and “presumed” are denotatively and connottively distinct, but we also recognize that, in legal parlance, those words are sometimes considered to be equivalent. See Cooper v. Slaughter, 175 Ala. 211, 215 (synopsis), 222, 57 So. 477, 479 (synopsis), 481 (1912) (reviewing a court’s oral charge to the jury that “ ‘if they believe from the evidence that the boundary line in question was in dispute, and that the adjoining owners caused said line to be established, and that they acquiesced in said line, then the plaintiff would be deemed to be the owner of all lands north of the line so established,’ ” and stating that “ ‘[djeemed,’ as used in this charge, is clearly the equivalent of ‘presumed’”). Alabama caselaw, statutes, and rules of court have frequently used the two words interchangeably. See, e.g., Lemond Constr. Co. v. Wheeler, 669 So.2d 855, 860 (Ala.1995) (stating that “because a child [less than 14 years of age] is deemed incapable of appreciating the danger of a situation in which he may place himself, it follows logically that the child is also presumed incapable of assuming the risk of his action” (emphasis added)); Alabama Mills, Inc. v. Camley, 85 Ala.App. 46, 49, 44 So.2d 622, 624-25 (1949) (quoting former tit. 26, § 213(C), Ala.Code 1940, an amendment to the Unemployment Compensation Act providing that “ ‘[a] woman shall be presumed not to be able to work and not available for work if she quits or is required to terminate her employment because of pregnancy, provided, in any event, that no woman shall be deemed to be able to work and available for work for any week during the three month period immediately before the expected birth of her child, and for any week during the three month period immediately following the birth of her child’” (emphasis altered)); Rule 44(h), Ala. R. Civ. P. (stating that a photocopy of a writing “shall be deemed to be an original record and shall be presumed to be a true and correct reproduction of the original record it purports to represent”).

In the present case, the Board deposited the notice with the postal authorities on Friday, February 10, 2012, and, pursuant to subsection (k), Taylor was presumed to have received the notice two business days later on Tuesday, February 14, 2012. Thus, when Taylor had not requested a hearing to contest the termination of her employment by February 29, 2012 (15 days after February 14, 2012), the Board concluded (and the circuit court agreed that Taylor had “fail[ed] to timely file [a] request for [a] hearing,” see § 16-24C-6(b), and it voted the following day, March 1, 2012, to recommend that Taylor be dismissed from employment.

Like the common-law “mailbox rule,” the subsection (k) presumption, however, is not conclusive, see Sullivan v. Eastern Health Sys., Inc., 953 So.2d 355, 360 (Ala.2006), and the ALJ was presented with evidence from which it, as the finder of fact, could reasonably have determined that Taylor had not “failed” to request a hearing on the proposed termination of her employment, but that she had simply been unaware of the proposed termination and, thus, the need to request a hearing.

Based on evidence indicating that mail delivery in Taylor’s neighborhood had been unreliable and that Taylor had not received the notice, the ALJ was authorized to determine that Taylor had rebutted the subsection (k) presumption. Specifically, Andrew Coe, Taylor’s neighbor, testified that he had been asked before by the mail carrier to sign for certified mail that was not for anyone residing at his address. Coe, a realtor, also stated that, previously, when he had been expecting a certified letter containing an earnest-money deposit for one of his real-estate clients, he had checked the online postal-service tracking system to determine the status of the certified mail. Coe said that the tracking system had indicated that the mail carrier had left a note advising Coe that he had certified mail being held for him at the post office but that no note had, in fact, been left at his address. The ALJ could also reasonably have found, from the notation “moved; left no forwarding address” on the certified-mail tracking system when it was undisputed that Taylor had not moved, and from the existence on the green return-receipt card of a partial, scratched-out signature that bore no resemblance to Taylor’s name or handwriting, that the certified letter intended for Taylor had, in fact, been delivered to the wrong address. Because ‘[questions of fact or weight or sufficiency of the evidence [are] not ... reviewed on certiorari,’ ” South Alabama Skills Training Consortium v. Ford, 997 So.2d at 324 (quoting Personnel Bd. of Jefferson Cnty. v. Bailey, 475 So.2d 863, 868 (Ala.Civ.App.1985)), the circuit court was not authorized to reject the ALJ’s factual findings. In light of our holding that subsection (k) creates only a rebuttable presumption of receipt after mailing, the circuit court’s conclusion that the ALJ’s decision was not supported by legal evidence and that the ALJ had incorrectly applied the law to the facts was erroneous.

Conclusion

We hold that Taylor was entitled to a pretermination hearing on the second of the two independent grounds upon which the ALJ relied — that, assuming the Board had complied with the notice provisions of the Act, such compliance created only a rebuttable presumption of Taylor’s receipt of the notice, and Taylor’s evidence had rebutted that presumption. Accordingly, we pretermit consideration of the first ground upon which the ALJ relied in granting relief to Taylor.

The circuit court erred in quashing the ALJ’s order requiring the Board to provide Taylor with a pretermination hearing. The judgment is, therefore, reversed, and the cause is remanded with instructions to enter a judgment denying the Board’s cer-tiorari petition.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and THOMAS and DONALDSON, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . Section 16-24C-6(b) provides, in pertinent part:
      "The termination of a tenured teacher or nonprobationary classified employee ... shall be initiated by the recommendation of the chief executive officer in the form of a written notice of proposed termination to the employee.... [T]he notice shall state the reasons for the proposed termination, shall contain a short and plain statement of the facts showing that the termination is taken for one or more of the reasons listed in subsection (a), and shall be issued in conformity with subsection (k). The notice shall inform the employee ... that, in order to request a hearing with the governing board, the employee must file a written request for such a hearing with the chief executive officer within 15 calendar days after issuance of the notice. Should the employee fail to timely file the request for hearing, the governing board shall vote on the recommended termination."

      . Section 16-24C-12 provides:
      "An employee who has attained tenure or nonprobationary status and has been denied a hearing before an employer subject to the requirements of this chapter may appeal for relief directly to the Chief Administrative Law Judge of the Office of Administrative Hearings, Division of Administrative Law Judges, Office of the Attorney General. The chief administrative law judge shall appoint an administrative law judge to address the issues raised in the appeal. The appeal shall state facts sufficient to allow the judge to determine tentatively whether or not the employer has complied with this chapter in failing to accord the employee a hearing. The employer may answer or deny in writing the facts set out in the employee appeal and, if the employer fails to do so, the facts set out in the appeal shall be taken as true. The judge shall review the request of the employee and the answer or denial of the employer and shall determine, with or without a hearing, whether or not the employer has complied with this chapter in denying the employee a hearing as provided in this chapter. Based upon his or her findings, the judge shall either order a hearing before the employer or sustain the action taken by the employer. Any petition or application for judicial relief from the decision of the administrative law judge shall be filed in the circuit court of the county in which the principal administrative offices of the employer are located.”

      . The mailbox rule stands for the proposition that
      " '[a] letter properly addressed, stamped, and mailed is presumed to have been received in due course. Evidence denying the receipt of the letter does not render the evidence of the mailing inadmissible. Neither is it conclusive. Whether it was so mailed and received becomes a jury question.’ ”

        Sullivan v. Eastern Health Sys., Inc., 953 So.2d 355, 360 (Ala.2006) (quoting Corinth Bank & Tmst Co. v. Cochran, 219 Ala. 81, 83, 121 So. 66, 67 (1929)).