Adams Packing Ass'n, Inc. v. Florida Dept. of Citrus, 77-1025

• Court: Florida District Court of Appeals
• Writing for the Court: BOARDMAN; OTT
• Citation: Adams Packing Ass'n, Inc. v. Florida Dept. of Citrus, 352 So.2d 569 (Fla. App. 1977)
• Decision Date: 30 November 1977
• Docket Number: No. 77-1025,77-1025
• Parties: The ADAMS PACKING ASSOCIATION, INC., a Delaware Corporation, Sun-Glo Citrus Co-Op, Inc., a Florida Corporation, Newbern Groves, Inc., a Florida Corporation, and Lakeland Packing Company, a division of Pacific Company, a Florida Corporation, Appellants, v. FLORIDA DEPARTMENT OF CITRUS, Appellee.

Page 569

352 So.2d 569

The ADAMS PACKING ASSOCIATION, INC., a Delaware Corporation, Sun-Glo Citrus Co-Op, Inc., a Florida Corporation, Newbern Groves, Inc., a Florida Corporation, and Lakeland Packing Company, a division of Pacific Company, a Florida Corporation, Appellants, v. FLORIDA DEPARTMENT OF CITRUS, Appellee.

No. 77-1025.

District Court of Appeal of Florida, Second District.

Nov. 30, 1977.

E. Snow Martin of Martin & Martin, Lakeland, for appellant, The Adams Packing Association, Inc.

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

BOARDMAN, Chief Judge.

Appellants/plaintiffs, The Adams Packing Association, Inc., Sun-Glo Citrus Co-op, Inc., Newbern Groves, Inc., and Lakeland Packing Company, appeal the order of the trial court granting a motion to dismiss without leave to amend filed by appellee/defendant, Department of Citrus.

Appellants filed a complaint for declaratory judgment and injunctive relief with the circuit court of Polk County alleging, among other things, that a Department of Citrus regulation was unconstitutional as violative of the fourteenth amendment guarantees of equal protection and due process and that its enforcement would cause immediate, irreparable harm and damage to them. This regulation was adopted March 22, 1977 to become effective August 1, 1977. It required certain categories of packing houses to identify specified kinds of citrus by the stamp "Florida" or "Indian River." Appellants alleged that to comply with the regulation they would be required to purchase costly equipment prior to the effective date of the regulation or be subject to suspension of operation in deprivation of their property rights. Relying on State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977) the circuit court dismissed the action for lack of jurisdiction finding that since there were no exceptional circumstances the district court of appeal had jurisdiction over the cause.

Willis does not control the case before us for two major reasons. First, we perceive a distinction between a proceeding essentially seeking review of agency action and one essentially seeking a determination of rights by declaratory judgment. The provisions of the Administrative Procedure Act relating to seeking judicial review of administrative action in the district courts of appeal, Section 120.68, Florida Statutes (1975), and those relating to seeking declaratory judgments construing agency regulations in the circuit courts, Section 120.73, Florida Statutes (1975), are not mutually exclusive. They must be read in pari materia. It the proceeding is one to review administrative action, the district court of appeal is the proper forum. If, however, as here, the proceeding is not one to review administrative action, but rather is one to obtain a declaration of rights or status under "any regulation made under statutory authority," Section 86.021, Florida Statutes (1975), jurisdiction lies in the circuit courts pursuant to Sections 86.011-. 111, Florida Statutes (1975). Furthermore, in Willis the agency action sought to be reviewed was not speculative or tentative, but certain and final since it was being enforced at the time suit was brought. Adoption of the regulation at issue in the case before us was not final agency action at the time this complaint was filed on April 11, 1977 since until the time that it becomes effective it is only a proposed rule susceptible to withdrawal or modification by the agency. Riley-Field Co. v. Askew, 336 So.2d 383 (Fla. 1st DCA 1970); Section 120.54(1)-(12), Florida Statutes (1975). The district court of appeal will not assume its statutory jurisdiction to review an...