Gerald A. LEWIS, As Comptroller and Commissioner of Banking of the State of Florida, Petitioner, v. JUDGES OF the DISTRICT COURT OF APPEAL, FIRST DISTRICT, of the State of Florida, Respondents.
No. 47063.
Supreme Court of Florida.
July 17, 1975.
Rehearing Denied December 2, 1975.
322 So. 2d 16
ENGLAND, Justice.
Howard Horowitz, Gen. Counsel, Miami, and William B. Corbett, Jr., Clinton H. Coulter, Jr., and Fred O. Drake, III, Asst. Gen. Counsels, Tallahassee, for petitioner. Sam Spector and Cynthia S. Tunnicliff, of the Law Office of Sam Spector, Tallahassee, for respondents.
This is an original proceeding in our court seeking to prohibit the judges of the First District Court of Appeal from reviewing certiorari petitions filed in that court by two groups with bank charter applications pending before petitioner. Our jurisdiction is based on
We issued an order directing the judges to show cause why they should not be prohibited from entertaining the petitions, and we have received their return.
The background facts giving rise to this proceeding date from December 27, 1974. On that date the incumbent State Banking Commissioner, petitioner‘s predecessor in office, issued a “Conditional Approval Order” to each of two groups seeking to establish a new bank in Florida. The Order directed to proposed American Bank of Melbourne (“American“) granted authority to “organize a new banking corporation ... upon compliance with the following conditions:
(1) Insurance of deposits by the Federal Deposit Insurance Corporation.
(2) Fixed Asset Investment: Investment in land and building limited to 50% of capital and surplus representing statutory limitation. Total fixed asset investment, including furniture, fixtures and equipment, limited to 50% of combined capital, surplus and undivided profits. All leases to have prior approval of this office.
(3) Articles of Incorporation to be filed with Secretary of State within six months after approval by the Federal Deposit Insurance Corporation. This requirement
may be subject to one six months extension upon written request to this office. (4) Opening to be accomplished within six months after approval by the Federal Deposit Insurance Corporation. Extensions may be granted at the discretion of this office.”
The Order directed to proposed Mariner Bank of Tarpon Springs (“Mariner“) granted similar authority upon compliance with the following conditions:
(1) Approval for membership in the Federal Reserve System.
(2) Fixed Asset Investment: Investment in land and building limited to 50% of capital and surplus representing statutory limitation. Total fixed asset investment, including furniture, fixtures and equipment, limited to 50% of combined capital, surplus and undivided profits. All leases to have prior approval of this office.
(3) The selection of a qualified Operations Officer (Cashier) subject to the prior approval of this office.
(4) Articles of Incorporation to be filed with Secretary of State within six months after approval by the Board of Governors of the Federal Reserve System. This requirement may be subject to one six months extension upon written request to this office.
(5) Opening to be accomplished within six months after approval by the Board of Governors of the Federal Reserve System. Extensions may be granted at the discretion of this office.”
On January 7, 1975, petitioner took office as the new Banking Commissioner of Florida (“Commissioner“). On January 17, petitioner notified American and Mariner (“the banks“) of his intention to adopt an emergency rule which would allow him, in his official capacity, to revoke any Conditional Approval Order for a new bank.1 The banks were also notified that their Conditional Approval Orders would be revoked on January 20 when the emergency rule would be filed and become effective. The notification stated that the Commissioner did not intend his action as a decision on the merits of the banks’ applications. On January 20, the rule was filed with the Secretary of State2 and the banks’ Orders were formally revoked.
On February 18, the banks filed identical petitions for certiorari with the First District Court of Appeal seeking a review of the Commissioner‘s rule and revocations. After consolidation of the petitions by the district court, the Commissioner moved to dismiss both suits. His motion was denied, and a subsequent request for rehearing was similarly denied. Petitioner filed his request for a writ of prohibition here, and after oral argument we granted our order to show cause.
Issues
The principal issue for our consideration is whether the First District Court of Appeal has jurisdiction to review the emergency rule and the orders of revocation issued by the Commissioner. In order to resolve that question, we must first determine whether the 1961 or the 1974 version of Florida‘s Administrative Procedure Act governs the Commissioner‘s acts.
“(2) All administrative adjudicative proceedings begun prior to January 1, 1975 shall be continued to a conclusion under the provisions of the Florida Statutes, 1973, except that administrative adjudicatory proceedings which have not progressed to the stage of a hearing may, with the consent of all parties and the agency conducting the proceeding, be conducted in accordance with the provisions of this act as nearly as is feasible.”
In determining whether the old act or the new act applies to this proceeding, we are called upon to define the term “administrative adjudicative proceeding” as used in the transition rule under the new act. The new act contains a number of definitions,4 but it has none which provides any guidance to that terminology. We believe the legislative policy for that omission was deliberate, and that the source of the term can be traced through the new act‘s evolution.
The concepts of the new act, and virtually all of its provisions, were first developed by the Florida Law Revision Council in the exercise of its statutory responsibility to examine Florida‘s statutes for defects, to recommend needed reforms, and to recommend new laws needed to bring Florida law into harmony with modern conditions.5 On March 9, 1974, the Council adopted a wholly revised act in draft form in order to “remedy massive definitional, procedural and substantive deficiencies in existing law.”6 One important feature of the Council‘s draft act was an attempt to eliminate rigidity which had developed in the old act through acts of the legislature, applications of the state‘s agencies and interpretations by the state‘s courts. Some of the rigidity was attributable to an “unthinking adherence to ‘rulemaking’ and ‘adjudication’ procedures, as if they were wholly distinct and distinguishable.”7 The draft act expressly addressed this goal by rejecting the former notion of distinctive agency “adjudications” in favor of a range of procedures designed to focus on the extent to which agency decisions affect substantial interests. This more modern concept was fully embraced by the 1974 Legislature and built into the new act.8
The Council‘s draft act, which was adopted with minor changes by the Florida House of Representatives on April 17, 1974,9 contained no transition provision comparable to
The definitions set forth in Part II of the old act made it abundantly clear that the entire process of granting new bank charters, from initial application to final approval, was an “adjudication“.13 That process (in the technical language of the old act) was an “agency proceeding” to “grant” an “order” conferring a “form of permission“. Under
The preceding discussion does not apply to the Commissioner‘s emergency rule adopted on January 20, 1975. That rule was promulgated after the effective date of the new act, and since there was no rule proceeding in process prior to 1975 its effect is controlled by the new act.15
The Commissioner asserts an absolute right to revoke outstanding “conditional approval orders” under the old act. He contends, first, that all acts of his department prior to a final grant of approval are quasi-executive, interim actions not reviewable by any court. He also contends that there is no statutory authority for his predecessor‘s grant of “conditional” approval, so that revocation was a gratuitous courtesy which merely provided formality regarding a prior act which inherently lacked legal effect. We agree that the Commissioner‘s revocations are not reviewable in the district court, so that it is not necessary to reach his second contention.
We have consistently held that the acts of the Commissioner under the old act were quasi-executive, and as such not reviewable by certiorari in the district courts. Dickinson v. Judges of the District Court of Appeal, 282 So. 2d 168 (Fla. 1973) (involving a final grant of approval within the Commissioner‘s powers), citing prior cases of like effect. Those authorities, coupled with the old act‘s stricture that only “final orders” of an agency would be subject to judicial review,16 preclude the
A final question to be answered is whether the letters of revocation required the sanction of an emergency rule, since district court review of the rule would be an act of futility if they did not. Nothing in the Florida banking code authorizes conditional approval orders. We recognize the desire of bank applicants to know that their preliminary formation activities have met with departmental approval, and we do not fault the Commissioner for providing a mechanism for interim assurances of partial compliance.
We conclude, therefore,
(1) that all applications for bank charters which were pending before the Commissioner on December 31, 1974 are to be continued to a conclusion under the old Administrative Procedure Act (unless the department and the parties consent to use the new act);
(2) that the Commissioner‘s letters of revocation, being quasi-executive acts under the old act, are not reviewable by certiorari in the district court;
(3) that while the department‘s emergency rule is governed by the new act and reviewable by the district court, any declaration concerning the emergency rule would be an act of futility since the letters of revocation had independent legal effect; and
(4) that the district court should be prohibited from considering further the petitions of the banks.
The writ of prohibition requested by petitioner is granted, and the judges of the First District Court of Appeal are prohibited from considering further the certiorari petitions filed by American and Mariner.
ADKINS, C.J., and BOYD and OVERTON, JJ., concur.
McCAIN, J., dissents.