Florida Canners Ass'n v. State, Dept. of Citrus

• Decision Date: 16 May 1979
• Docket Number: No. 77-1921,77-1921
• Citation: 371 So.2d 503
• Parties: The FLORIDA CANNERS ASSOCIATION, a Florida Corporation, et al., Petitioners, v. STATE of Florida, DEPARTMENT OF CITRUS, Respondent.
• Court: Florida District Court of Appeals

Page 503

371 So.2d 503

The FLORIDA CANNERS ASSOCIATION, a Florida Corporation, et al., Petitioners, v. STATE of Florida, DEPARTMENT OF CITRUS, Respondent.

No. 77-1921.

District Court of Appeal of Florida, Second District.

May 16, 1979.

E. Snow Martin of Martin & Martin, Lakeland, and Roderick K. Shaw, Jr. and Edward O. Savitz of Allen, Dell, Frank & Trinkle, Tampa, for petitioners.

Monterey Campbell of Campbell, Dunlap, Coward & Blakeman, Bartow, for respondent.

DANAHY, Judge.

This is a petition to review the final agency action of Respondent in adopting Florida Administrative Code Rule 20-66.04, which reads as follows:

20-66.04 Florida Identification:

Effective January 1, 1979, all processed 100% grapefruit products packed in retail containers in Florida shall be prominently identified by use of the word "Florida" or the Florida Sunshine Tree registered certification mark (U.S.Reg. No. 941,773) as described in, and authorized by, Department of Citrus Rule 20-94, including the surrounding phrase "A Product of the Florida Sunshine Tree." To be prominent when placed on the label, the word "Florida" or the certification mark shall be clearly legible, appear at least one time in a conspicuous location and be in a size and contrasting color so as to be readily seen under general conditions of purchase. To be prominent, when printed or embossed on the container end, the word "Florida" or the certification mark shall be clearly legible, be in a conspicuous size and, if printed, be in a contrasting color, so as to be readily seen under general conditions of purchase.

Pursuant to a joint stipulation and motion, this court has entered an order staying the effectiveness of Rule 20-66.04 pending disposition of this case in this court.

Petitioner Florida Canners Association is a nonprofit trade association whose members include substantially all processors who pack processed grapefruit products in Florida. Each of the other petitioners is a member of Florida Canners Association and each packs substantial quantities of processed grapefruit products in retail containers in Florida. Each markets its own production of processed citrus products. A number of the petitioners advertise and promote brands owned by them or their customers.

A container of processed grapefruit products packed in Florida may hold products derived solely from grapefruit grown in Florida or it may contain a blend of products from grapefruit grown in Florida and grapefruit grown out of the state.

Petitioners have launched a multi-pronged attack on Rule 20-66.04, asserting first that Respondent lacks statutory authority to promulgate such a rule, and alternatively that the rule violates provisions of the federal and Florida constitutions. Initially, Petitioners' challenge was directed in large part to the fact that the rule on its face appears to apply not only to grapefruit products derived entirely from grapefruit grown in Florida, but to grapefruit products derived wholly or partly from grapefruit grown outside the state. Since it is unlawful in this state to place a designation of Florida origin on citrus fruit products if any part thereof come from outside the state, ¹ the effect of the facial application of the rule to out-of-state grapefruit is readily apparent.

However, Respondent has made a statement to this court concerning the application of the rule which we consider binding; that the rule applies Only to processed 100% grapefruit products packed in retail containers in Florida which are derived Entirely from grapefruit grown in Florida. We have proceeded to assess the validity of the rule on that basis.

Petitioners argue that, notwithstanding the restricted application of the rule, the rule cannot withstand their challenge on statutory and constitutional grounds. That challenge and Respondent's defense require a modern-day examination of a 44 year old legislative directive that Respondent advertise Florida citrus fruit. Respondent recognizes that its authority to promulgate the Respondent's concern is that the supply of Florida grapefruit is expected to increase twice as fast as demand. An increase in the consumption of grapefruit products must, therefore, be an overall goal of Respondent's grapefruit advertising efforts. Petitioners agree that there will be an oversupply of grapefruit, and state that "(t)he desire for substantial increase in sales demand is a common goal that is strongly held by Petitioners and Respondent alike."

rule in question is not expressly conferred by any applicable statute, but it asserts that such authority is derived from its express duty to advertise and promote the sale of Florida citrus fruit. ²

Respondent, however, has a further concern; it points to the fact that one-half of the anticipated significant increase in the growth of grapefruit by the 1979-80 season will be in citrus-producing areas other than Florida, so that there will be an ever-increasing competitiveness from these non-Florida areas in the marketplace. Respondent says, in effect, that there is no way it can carry out the duties placed upon it by the legislature to advertise Florida citrus unless Florida citrus is identified to the consumer; that when Florida grapefruit is advertised but the product in the marketplace is not identified, Respondent is not advertising Florida grapefruit, but grapefruit from California, Arizona, Texas, Brazil and other citrus-producing areas that compete with Florida in the marketplace. Therefore, according to Respondent, the rule in question is necessary and proper for the performance of Respondent's duty to advertise Florida citrus, which is the pursuit of a legitimate legislative objective.

Petitioners argue that authority to compel a designation of Florida origin on Florida grapefruit products packed by them is not implied by Respondent's duty to conduct advertising; but if that power is so implied, the legislature has unlawfully delegated legislative power to Respondent. Furthermore, say Petitioners, the rule violates the commerce clause of the United States Constitution and the guarantees of due process of law and freedom of speech contained in both the United States and Florida Constitutions. In presenting these challenges, Petitioners do not make an issue of the rule's definition of "prominent," nor do they complain of the cost to them of complying with the rule.

For the reasons hereinafter expressed, we reject Petitioners' arguments and hold that Respondent's Rule 20-66.04 is valid.

STATUTORY AUTHORITY

The statutory scheme for regulation of the Florida citrus industry was first established by the legislature in 1935 and has remained basically unchanged since then. In that year several legislative acts were passed which were designed to regulate the production and marketing of citrus fruit. Chapters 16854 through 16862, Laws of Florida (1935). The first of these, Chapter 16854, established Respondent under the name "Florida Citrus Commission" and made it a corporate body. Respondent was charged with the duty of carrying out all the provisions and requirements of Chapter 16854. To defray its expenses, an excise tax was levied and made payable to Respondent by persons selling or offering citrus fruit for sale or shipment in Florida.

Basically, Chapter 16854 called for the inspection and grading of citrus fruit, and Respondent was given extensive specific power and authority to accomplish the purpose of the act. Additionally, Respondent was empowered to "adopt and from time to time alter, rescind, modify and/or amend all proper and necessary rules, regulations and orders for the exercise of its powers and the performance of its duties under this act and to act as the general supervisory authority over the administration and enforcement of this act and the provisions thereof and to exercise such other powers and perform such other duties as may be imposed upon it by other laws of the State of Florida."

Among the reasons for the passage of Chapter 16854, as expressed in the act, were the following:

In the exercise of the police power of the state to protect the public health and welfare and to stabilize and protect the citrus industry of the State of Florida.

Because the citrus fruit crop grown in Florida comprises the major agricultural crop of Florida and the business of disposing of such crop is of public interest.

Because it is wise, necessary and expedient to protect and enhance the quality and reputation of Florida citrus fruit in domestic and foreign markets.

Because said act is designed to promote the general welfare of the Florida citrus fruit industry, which in turn will promote the general welfare of the State of Florida.

Chapters 16856 through 16858, Laws of Florida (1935) established the "orange advertising fund," the "grapefruit advertising fund" and the "tangerine advertising fund," respectively. Each act imposed an excise tax payable to Respondent by the person first handling the particular citrus fruit in the primary channel of trade. The only difference in these laws was in the amount of the respective taxes.

Chapter 16857, establishing the grapefruit advertising fund, stated that its purpose was to promote the sale of grapefruit produced in Florida through the conducting of an advertising campaign. The reasons for the passage of the act were stated to be that economic waste was being fostered in the citrus industry of the state by the lack of proper advertising and dissemination of information necessary for the development and promotion of the sale of grapefruit grown in Florida; that this created an adverse economic impact on all citizens of the state; that in the interest of the public welfare and general prosperity of the state, such deplorable and unnecessary loss could and should be eliminated by acquainting the general public with the health-giving qualities and the food and/or dietetic value of the different grades of grapefruit grown in Florida. The act...