227 So. 2d 674 | Fla. | 1969
Lead Opinion
The petitioner, in an original proceeding here, seeks to compel by mandamus the Department of Business Regulation forthwith to cancel and expunge its order revoking the petitioner’s racing dates theretofore established by the State Racing Commission, also known as the Division of PariMutuel Wagering of the Department of Business Regulation, and that the State
In its return the State Racing Commission alleges that the order of the Department revoking dates approved by the Racing Commission and substituting different racing dates was beyond and contrary to the scope of appellate review exercised by the Department. The Racing Commission does not attempt to show cause why a peremptory writ should not issue.
The Department’s return alleges it “will neither traverse or controvert the facts stated in the record,” but contends that neither the petition or alternative writ states facts upon which relief may be granted.
An amicus curiae brief was filed on behalf of Biscayne Kennel Club, Inc., and West Flagler Associates. This brief was considered by the Court.
By way of uncontroverted factual background, petitioner is the owner of the Hollywood Kennel Club and owns a valid permit to conduct dog-racing in Broward County, Florida, under Ch. 550, Fla.Stat., F.S.A. In the greater Miami area there are four dog tracks authorized to operate; namely, Flagler Kennel Club, Miami Beach Kennel Club, Inc., Biscayne Kennel Club, Inc. and Hollywood Kennel Club, all located within a radius of less than twenty-five miles of each other. In due season petitioner sought an allotment of its 1969-1970 racing days, commencing on November 3, 1969, and ending March 3, 1970, and requested that it be granted 52 non-competitive days and 52 competitive days of racing; applications for dates were made by the other three tracks.
On August 14, 1969, at a meeting by the State Racing Commission, a hearing was held to determine the allotment of dates. The Commission established and declared by formal ruling a policy that it would allocate dates to each of the tracks 52 non-competitive days and 52 competitive days. Biscayne Kennel Club was authorized to start on September 3, 1969 and end its competitive days on November 1, 1969. Other allocations of dates were postponed to September 12, 1969, at which time an allocation in accordance with its ruling of August 14th was assigned. Petitioner alleges that the Commission “then invited the tracks to attempt to adjust between themselves an agreement on selection of days. Hollywood Kennel Club chose to run from November 3, 1969 to March 3, 1970, having non-competitive days until January 1, 1970. Biscayne Kennel Club agreed to run its competitive days against Hollywood Kennel Club from January 1, 1970 until March 3, 1970. Miami Beach Kennel Club and Flagler Kennel Club likewise chose to run between themselves the competitive and noncompetitive days at their tracks.”
Biscayne Kennel Club, pursuant to the order of August 14th, accepted the benefit of the ruling and commenced its operation on September 3, 1969. On September 19, 1969, 36 days after the ruling of August 14, 1969, Biscayne Kennel Club took an appeal to the Department of Business Regulation. Biscayne did not make Hollywood Kennel Club a party to such appeal, although any disturbance of the rulings appealed from would have a vital effect on the property rights of Hollywood Kennel Club. Two days earlier, on September 17, 1969, Flag-ler Kennel Club took an appeal but did not make Hollywood Kennel Club a party thereto, although Hollywood had valuable property rights by virtue of the orders assailed on appeal.
The Department of Business Regulation heard arguments upon the appeals of Biscayne and Flagler but refused to allow participation by Hollywood Kennel Club because it was not a party. Thereafter, on October 23, 1969, just 12 calendar days before the proposed opening by Hollywood
Relying on the order of August 14th and the subsequent allocation of non-competitive dates to Hollywood, beginning November 3, 1969, Hollywood has expended and committed substantial sums of money and made other arrangements for opening on November 3, 1969. It has contracted for the dogs to run at its track; it has contracted for all of its opening expenses; it has contracted for its television and radio time, all of which must be procured well in advance of opening. Hollywood also alleges (and this is not controverted) that dog owners have brought their dogs to the track relying upon the stability of the Florida Administrative procedure in setting the dates for racing.
The Department argues that the public and racing industry will be best served if the racing dates were changed. In passing, we might say there is a lack of competent or admissible evidence in the record to sustain the argument or to show any loss of revenue to the state. This argument is based upon the hearsay speculation of an interested attorney representing one of the parties.
The State Racing Commission is organized, authorized and controlled by Ch. 5S0, Fla.Stat, F.S.A. In 1969 the Legislature adopted Ch. 69-106, Laws of Florida, restructuring the State Government, and in Section 16 thereof provided for a Department of Business Regulation, and then in subsection (S) said:
“The state racing commission, created under chapter 550, Florida Statutes, is transferred by a type one (1) transfer to the department of business regulation and shall be assigned to the division of parimutuel wagering.”
The.Type One (1) Transfer mentioned is defined by the Act as:
“A type one (1) transfer is the transferring intact of an existing agency or of an existing agency with certain identifiable programs, activities or functions transferred or abolished so that the agency becomes a unit of a department. Any agency transferred to a department by a type one (1) transfer shall henceforth exercise its powers, duties and functions as prescribed by law subject to review and approval by and under the direct supervision of the head of the department.”
Subsection (3) of Section 16 of the Act provides as follows:
“The board of business regulation is authorized to establish procedures for the administration of each division. In each of the divisions of the department, hearing examiners may be appointed to assist the division directors in exercising the discretionary powers, duties and functions of their divisions. Any interested person may appeal an adverse decision by a division to the board of business regulation.”
Pursuant to such authority, insofar as reviewing the State Racing Commission is involved, the Department adopted with certain exceptions the appellate rules of the District Courts of Florida 1962 Revision as amended through June 19, 1968. None of the exceptions are involved here, but we note that the Department sought to fix the appeal time of 10 days rather than 30 days provided in the appellate rules. By way
Under the posture of this case, it is not necessary for us to decide at this time the scope of the authority of the Board of Business Regulations, or their power, to adopt the rules of appellate procedure. Nor is it necessary to decide whether the Board of Business Regulations has the authority by appellate review to modify or set aside a discretionary order of the Division of pari-mutuel wagering setting racing dates.
In the situation here mandamus is an appropriate remedy available to petitioner. See State of Florida ex rel. Pensacola Greyhound Racing, Inc. v. Lechner et al., Fla., 195 So.2d 206, and related cases. This Court has jurisdiction under Fla. Const, art. V, § 4(2), F.S.A.
Hollywood Kennel Club, having acquired valuable property rights under the orders by the State Racing Commission of August 14, 1969, which rights were directly threatened in the appeal, was an indispensable party to the appeal.
All parties directly and substantially interested in an order sought to be reviewed must be made parties to the appeal.The refusal or failure to do so denies those interested and not made parties due process of law. Harison v. Ocala Building and Loan Association, 52 Fla. 522, 42 So. 696 (1906); Nichols and Johnson v. Frank, 59 Fla. 588, 52 So. 146 (1910); and Headley v. Lasseter, 147 So.2d 154 (Fla.Apps. 1962).
It is stated in Tibbetts v. Olson, 91 Fla. 824, 108 So. 679 (1926),
“The Constitution is designed to prescribe and limit governmental powers and to secure individual rights against unlawful invasion by public officers or by private parties. The courts are required to adjudicate rights ‘by due course of law,’ the essence of which is that, by appropriate procedure, duly prescribed, fair notice and a reasonable opportunity to be heard shall be given to interested parties before judgment or decree is rendered; and statutory regulations that do not afford reasonable notice and hearing before adjudication or before liability is established operate to deprive persons of organic rights without due process of law, and are inoperative.”
The order of the Department operates to deprive Hollywood of organic rights without due process of law and is therefore inoperative.
All parties in favor of whom the order was rendered and who would be affected by its reversal must be made appellees in the appeal. See Am.Jur.2d, § 278. The interest of Hollywood in the controversy was of such nature that a final determination could not be rendered between the other parties to the controversy without radically and injuriously affecting that interest. Hollywood was an indispensable party to the appeal and the Department could not assume jurisdiction over the matter in controversy in the absence of such indispensable party. See 39 Am.Jur., Parties, § 5.
The Court in Headley v. Lasseter, 147 So.2d 154 (Fla.App. 3d Dist.1962), said:
“In a proceeding to review a decision or order of an administrative agency, the question of who may or must be joined as parties is, in the absence of statutory provision as to parties, governed by the rules applicable to parties in civil actions generally. 73 C.J.S. Public Administrative Bodies & Procedure § 178, p. 523. Cf. Dade County News Dealers Supply Co. v. Florida R. R. & Public Utilities Commission, Fla., 1950, 48 So.2d 89.
“With reference to the need to join necessary or indispensable parties in the trial court as well as on appeal, the Supreme Court of Florida in the case of McAdoo v. Moses, 101 Fla. 936, 132 So.
“ ‘In Robinson et al. v. Howe et al., 35 Fla. 73, 17 So. 368, this court held:
“ ‘ “The general rule in equity is that all persons materially interested, either legally or beneficially, in the subject-matter of a suit, must be made parties, either as complainants or defendants, so that a complete decree may be made binding upon all parties.
“ ‘ “The court cannot adjudicate directly upon the rights of necessary and indispensable parties, without having them actually or constructively before it, and the failure to raise the objection of the absence of such parties by demurrer or answer is not a waiver of the right to make such objection before final decree, or even on appeal.”
“ ‘In Rawls v. Tallahassee Hotel Co., 43 Fla. 288, 31 So. 237, this court held:
“ ‘ “A decree rendered in the absence of an indispensable party will be reversed, and an objection of this character can be urged for the first time in the appellate court, or be considered by the court of its own motion.”
“ ‘See, also, Yager v. North & South Alafia River Phosphate Co. et al., 82 Fla. 38, 89 So. 3407 ”
Respondents having failed to show a lawful reason why the petition for mandamus should not be granted, the motion for peremptory writ is granted, effective immediately, commanding the State Racing Commission, also known as the Division of Pari-Mutuel Wagering, instanter to issue petitioner its license to race non-competitively in accordance with the dates awarded by the State Racing Commission, which authorized opening on November 3, 1969, and to fully reinstate the actions of the State Racing Commission in the awarding of racing dates for the 1969-1970 racing season.
Because of the late action by the Department of Business Regulation and the short intervening time between its action and the opening date previously allotted to Hollywood Kennel Club, and in view of the great public interest in the substantial state tax revenue involved, this order is made effective immediately, and a petition for rehearing will not be allowed.
It is so ordered.
Dissenting Opinion
(dissenting).
This case involves a mandamus proceeding which is at issue on pleadings. It appears from the record before us the State Racing Commission in August, 1969 announced by resolution a 52-52 dog racing date plan, allocating 52 days of competitive racing and 52 noncompetitive days to each of south Florida’s four greyhound tracks. These tracks are: Biscayne Kennel Club in North Miami, Dade County; Flagler Kennel Club, Miami vicinity, Dade County; Miami Beach Kennel Club, Miami Beach, Dade County; and Hollywood Kennel Club, Hollywood, Broward County, Florida.
On the same date the Racing Commission ruled that each track would be given
Thereafter, Biscayne and Flagler Kennel Clubs appealed the Racing Commission’s allocation of racing dates to the newly-created Department of Business Regulation (see § 16, Ch. 69-106, Laws of Fla. 1969). On October 23, 1969 the Board of Business Regulation reversed the allocation of racing dates made by the Racing Commission.
Under the Board’s reversal, Biscayne Kennel Club will continue to operate until December 31, 1969. Hollywood and Miami Beach Kennel Clubs will operate concurrently from January 1, 1970 through May 1, 1970. Flagler Kennel Club will operate from May 2, 1970 through August 31, 1970.
Under the 52-52 allocation plan of the Racing Commission, Biscayne Kennel Club closes its noncompetitive racing on November 1, 1969 and Hollywood Kennel Club is scheduled to open November 3, 1969 to continue until March 3, 1970. Under the Racing Commission’s plan, Hollywood Kennel Club would be the only south Florida track in operation from November 3, 1969 until January 2, 1970.
In its emergency request for an alternative writ of mandamus, Relator, the owner of Hollywood Kennel Club, asserts that it (along with Miami Beach Kennel Club) was not made a party to the appeal to the Board of Business Regulation and was further excluded from participating in the hearing on this appeal conducted by the Board on October 23, 1969. Relator contends it was entitled to be made a party to the appeal proceedings before the Board by virtue of the fact that the purpose of the appeal was to take away or reallocate from Relator and Miami Beach Kennel Club the noncompetitive racing dates allocated to them by the Racing Commission. Relator urges the reversal order of the Board of Business Regulation taking away the 52 noncompetitive days granted to Hollywood and Miami Beach Kennel Clubs is illegal, arbitrary, discriminatory, void, and constitutes a denial of due process and equal protection of the law in violation of the Constitution of Florida and the 14th Amendment to the United States Constitution. Relator alleges it has made all its plans to open the Hollywood track on November 3, 1969, pursuant to the dates allocated by the Racing Commission and that it will suffer irreparable injury and damage if the reversal order of the Board is allowed to stand. Relator requests we vacate the action of the Board and require the issuance to it of a license for the operation of its track from November 3, 1969 to March 3, 1970.
At the outset, I think it clear that the proper method for reviewing a decision of the State Racing Commission is by way of appeal to the Board of Business Regulation. Section 16(5), Chapter 69-106, transfers the State Racing Commission to the Department of Business Regulation and specifically assigns said Commission to the division of pari-mutuel wagering, one of. the five established divisions of the Department of Business Regulation. Section 16(1), Chapter 69-106, provides that the Board of Business Regulation, comprised of five members, shall be the head of the Department of Business Regulation. Section 16(3) provides, “any interested person may appeal an adverse decision by a division to the board of business regulation.” Thus Biscayne and Flagler Kennel Clubs had the untrammeled right to appeal the Racing Commission’s allocation of racing dates to the Board of Business Regulation, subject of course, to compliance with any procedural rules governing such an appeal.
With regard to procedural rules, Relator directs our attention to the fact that the Department of Business Regulation adopted the Appellate Rules of the District
Relative to the emergency procedure rules adopted by the Department, Relator contends the ten-day appeal period prescribed in the modified appellate rules was not complied with in the instant case and that this is a jurisdictional defect requiring the conclusion that the order of the Racing Commission be deemed final and conclusive. Based on the record before us, it should be noted that the decision of the Racing Commission designating the different racing dates was not fully rendered until September 12, 1969. The available record clearly reveals that the questioned appeals were filed within a ten-day period computed from September 12, 1969. I conclude therefore that Relator's contention of a jurisdictional defect attributable to the time of appealing the Racing Commission decision is not well taken.
I come now to the main thrust of Relator’s position. Relator asserts that the action of the Board in reversing the allocation of racing dates made by the Racing Commission is illegal, arbitrary, discriminatory, void, and constitutes a denial of due process and equal protection of the law. In actuality, the challenge against the Board’s reversal order can be reduced to two distinctive thrusts: (1) The Board was without authority to enter a determination affecting the interests of Relator without making said Relator a party to the proceedings on appeal and according it a chance to be heard; and (2), there was competent, substantial evidence in the record to support the Racing Commission’s allocation of racing dates and the Board, by reversing and departing from the allocation plan of the Racing Commission, acted arbitrarily, beyond its discretion, and without compliance with essential requirements of law. I agree that either of these contentions if established by the record will support an action for mandamus. See State ex rel. Roberts v. Knox (1943), 153 Fla. 265, 14 So.2d 262; State ex rel. Weathers v. Davis (1940), 143 Fla. 250, 196 So. 487. However, the particular reason or ground established to support mandamus is extremely crucial since it will determine the particular scope or nature of the relief to be accorded.
I pass now ro the merits of the above enumerated contentions of Relator. With reference to the failure to make Relator a party appellee to the appeal, it appears the fault lies primarily with the Board. It had a duty (see Fla.App.Rule 3.11, 32 F.S.A. and F.S. § 120.23, F.S.A.) to make Relator, a potential aggrieved party, an appellee. The appellants attempted to supply the defect by having brought to the attention of Relator their appeal efforts and contentions by transmitting to it their appeal briefs. Apparently the Board considered that only the Racing Commission in the role of trial hearing division or Lower Board was the requisite appellee.
In any event, in this apparently first appeal before the Board under the new Governmental Reorganization Act (Ch. 69-106), there was failure to hear Relator, an aggrieved party. But this failure should not be visited upon appellants to the point of vitiation of their appeal as to the merits. Correction ,of the error lies — as explained below — in Affording a “due process” hearing to all parties anew and not a one-sided disposition, of the case — merits and all— because of procedural error.
Although I construe the Board’s failure to measure up to due process procedural requirements to warrant, by way of mandamus relief, the vacating of the Board’s
“When the order of June 15, 1925 is held void for the reasons hereinbefore stated and is ordered revoked and expunged, then the Relator will stand as he was prior to the entry of that order and the rights of the respondent to proceed under the statute will exist the same as if those former proceedings in which that order was entered had not been instituted.” (At 488.)
Generally when an administrative decision is set aside by a court because of procedural invalidity or lack of fair hearing, it is remanded to the agency for reconsideration pursuant to appropriate procedures. See 2 Am.Jur.2d Administrative Law, ¶ 761 and 765; 1 Fla.Jur., Administrative Law, ¶ 224, 225, 226, 227. See Anderson v. Jarrell (1946), 157 Fla. 212, 25 So.2d 490. I believe similar reasoning is called for in the present case. Once it is determined that Relator is entitled to require by mandamus the cancellation and expunging from the record of the appellate order of the Board because of the above-mentioned procedural infirmities, the better view would be to relegate Relator, Respondent, and the appellant race tracks to the position occupied by them prior to the commission of the procedural defect, rather than granting relief which would by its nature preclude the Board from properly and correctly discharging the duty entrusted to it by statute. I do not find that the procedural defects in the appeal process in this matter necessarily require us to conclusively sustain the Racing Commission’s decision and thereby preclude the appellant race tracks from being afforded an administrative appeal on the merits by the Board of Business Regulation. The view I take herein, being oriented toward the purpose of preserving the function of the Board, is especially warranted in situations where the appellate determination entrusted to the Board is not primarily of an adversary nature but is enshrined with a public trust and policy as well. For example, compare the appellate function of the Florida Industrial Commission, by nature primarily adversarily oriented, with the appellate function of the Board of Business Regulation in this case, i. e., review the allocation of racing dates so as to preserve the State’s as well as the private sector’s interest.
Support for the above approach for ferreting out mandamus relief in cases such as the present situation derives considerable support from Part III of the Administrative Procedure Act, F.S. Chapter 120, F.S.A. This part of the act provides for judicial review of administrative rulings and proceedings. F.S. Section 120.31(1), F.S.A. provides for certiorari review to the District Courts of Appeal as an alternative method of judicial review. Section 120.31(2) provides that in cases where cer-tiorari is granted, the court may remand the cause for such other proceedings as may seem necessary and proper:
“(a) To accord the parties due process of law;
(b) To establish a sufficient record, for review;
*682 (c) To accord the parties their constitutional, statutory or procedural rights; and
(d) To accomplish the purposes and objectives of the law pursuant to which, the administrative proceeding was initiated.” (Emphasis added.)
Section 120.31(4) provides that when appropriate, a party may attack an adverse order by mandamus, prohibition or injunction. Since the certiorari method of review authorized by the Act plainly provides an easy cure for the type of defect we are concerned with in the present case, would it not be a strange and unwieldy interpretation of the mandamus section of the same act to not accord it similar flexibility?
For the reasons aforementioned I conclude Relator is entitled by virtue of the contention set out in ground (1) supra to cancellation of the decision of the Board; that appellants before the Board may proceed on remand in the exercise of their right to a review by the Board of the decision of the Racing Commission; and that such review proceedings on remand be so conducted at an early and emergency hearing as to accord Relator and others adversely affected thereby those procedural rights to which they are entitled.
Finally, we come to the second distinctive reason advanced by Relator to support mandamus. Relator argues that the record before the Racing Commission contained competent substantial evidence to support the 52-52 allocation plan on the basis such a plan would produce more revenue for the State of Florida than any other plan. Accordingly, Relator contends the Board abused its appellate discretion by reversing the 52-52 allocation plan and thereby failed to comply with the essential requirements of law. If this contention is borne out by the record before us, I agree that mandamus predicated on this ground would necessitate the relief sought by Relator, i. e., require the issuance of a license to operate pursuant to the 52-52 allocation plan approved by the Racing Commission.
It is well settled in this jurisdiction that mandamus will not be granted where the right to it is doubtful, and that while it may be employed to coerce action, it will not be employed to control action or discretion. See State ex rel. West Flagler Kennel Club, Inc. v. Florida State Racing Commission (Fla.1954), 74 So.2d 691; City of Hialeah v. State ex rel. Danels (Fla.App. 1957), 97 So.2d 198. Based on the record before us in this case, it can hardly be said that the Board clearly abused its appellate discretion by reversing the 52-52 allocation plan of the Racing Commission. Relator contends the evidence before the Racing Commission established that the 52-52 allocation plan would produce more revenue for the State than any other plan. The Attorney General has taken the position before us that the action of reversal by the Board of Business Regulation is well taken in that the dog track racing tax revenues of the State will suffer a decrease of more than $1,250,000 if the 52-52 plan prevails. I am not prepared at this juncture to vindicate either position. I merely acknowledge that on the record before us I am unable to find that the Board has clearly abused its discretion so as to warrant mandamus relief in this particular.
In reaching the above conclusion, I am not unaware of Relator’s assertion that it will suffer irreparable injury and damage if it is not allowed to commence operation under the 52-52 plan of the Racing Commission. This fact may indeed be true. However, it cannot elevate Relator to the relief which it seeks. Regardless of the degree and extent of the preparation and reliance undertaken by Relator pursuant to the plan approved by the Racing Commission, such is unimpressive when placed in the perspective that Relator’s acquisition of any interest under the Racing Comtnis
In accordance with the foregoing, the peremptory writ of mandamus should be issued vacating and cancelling the decision of the Board of Business Regulation but preserving the right of that Board to entertain on remand emergency proceedings for appellate review of the merits of the Racing Commission’s decision, pursuant to the dictates of procedural due process. I would assume that in implementing the writ which I think should issue in this case, the Board would have authority under its procedural rules to issue such stays and other orders as may be necessary to preserve the cause and proceedings before it.
Concurrence Opinion
(concurring specially) .
In the posture in which this controversy reaches us, I concur in the judgment to issue the preemptory writ but without prejudice to the questions of law which may be ultimately involved in the relationship between the State Racing Commission and the Department of Business Regulation if and when such questions are before us in an appropriate proceeding.
