Alliance for Conservation of Natural Resources in Pinellas County v. Furen, 547

• Decision Date: 25 February 1959
• Docket Number: No. 547,547
• Citation: 110 So.2d 55
• Parties: ALLIANCE FOR CONSERVATION OF NATURAL RESOURCES IN PINELLAS COUNTY, Florida, et al., Petitioners, v. AL W. FUREN et al., Respondents.
• Court: Florida District Court of Appeals

Page 55

110 So.2d 55

ALLIANCE FOR CONSERVATION OF NATURAL RESOURCES IN PINELLAS COUNTY, Florida, et al., Petitioners, v. AL W. FUREN et al., Respondents.

No. 547.

District Court of Appeal of Florida, Second District.

Feb. 25, 1959.

Rehearing Denied April 6, 1959.

Knight Guild Aulsbrook, St. Petersburg, for petitioners, Alliance for Conservation of Natural Resources in Pinellas County, Florida, Diasy K. Edwards, Edward F. Brantley, Mary R. Tracy and Floyd L. Brown.

Richard W. Ervin, Atty. Gen., Ralph M. McLane, Asst. Atty. Gen., T. M. Shackleford, Jr., Tampa, for petitioners, State of Florida, State Board of Conservation and Trustees of the Internal Improvement Fund.

Orr, Weiss & Simon, S. Sherman Weiss, Miami, for petitioners, Walter Anderson and others, as members of and for Taxpayers Protective Committee of Pinellas County.

Keen, O'Kelley & Spitz, J. Velma Keen, Tallahassee, J. Hardin Peterson, Lakeland, for respondents.

ALLEN, Judge.

Petitioners herein seek to have reviewed an order by the Circuit Court for Pinellas County wherein the court affirmed a decision by the Pinellas County Water and Navigation Control Authority, hereinafter called the Control Authority.

Respondents petitioned the Control Authority for a permit to fill in a portion of Boca Ciega Bay in Pinellas County. The Control Authority, under its empowering statute, appointed an examiner to take testimony and make recommendations. In due course, hearings were held and the examiner made his recommendation that the permit be granted. Various interested parties, including petitioners here, objected to the examiner's findings and recommendation, and after hearing, the Control Authority adopted the examiner's findings and granted the requested permit.

The Control Authority's decision was then appealed to the Circuit Court for Pinellas County, and after hearing, that court entered an order affirming the decision appealed.

This is the second appearance of this case before this court. An appeal was taken to this court from the decision of the Circuit Court of Pinellas County affirming the decision of the Pinellas County Water and Navigation Control Authority and granting the appellees herein a permit to fill certain lands in Boca Ciega Bay. A motion to dismiss the appeal was filed by the appellees on the ground that the circuit court, in reviewing the decisions of the Pinellas County Water and Navigation Control Authority, was sitting in its appellate capacity and that the District Court of Appeal had no jurisdiction of an appeal from the circuit court acting in such capacity. We held that, although this court did not have authority, under revised Article V of the Florida Constitution, F.S.A., to entertain this appeal as such, we would treat the appeal as a petition for certiorari and would review the lower court's decision to the limited extent authorized by certiorari. See Alliance for Conservation of Natural Resources in Pinellas County v. Furen, Fla.App.1958, 104 So.2d 803.

The Circuit Court, in affirming the Pinellas County Water and Navigation Control Authority, said:

'Appellees made application for a fill permit pursuant to the terms of this act; the Board used a special examiner or master as permitted thereby who received and heard a voluminous amount of testimony, accompanied by a large number of exhibits, and thereafter filed the same with the Board, together with a recommendation that the application be granted.

'The Board thereupon, pursuant to the terms of such act, received and heard exceptions to the examiners findings, overruled the same and issued the permit. From this action this appeal was taken.

'In ultimate effect the errors assigned and the arguments of appellants, attack the issuance of the permit itself, as distinguished from any particular feature or detail thereof; and no argument has been presented which would not be equally applicable to a fill or another permit therefor in the same location, and of substantially the same size.

'In consideration of appeals from actions of an administrative board exercising judicial or quasi-judicial powers there seem to be two well-established rules of law. One of such rules permits, or perhaps requires, the court to, in effect, re-try the case on the record and to enter its findings of fact and judgment of law, without regard to the previous findings of fact or judgment of such board.

'The other rule does not permit the court to make its own findings of fact and judgment applying such findings, but requires the court to inspect the record and if there be substantial evidence supporting the findings of fact by the board, and that the board had not, in the opinion of the court, abused its discretion in reaching its conclusions upon such findings of fact, then the action of the board should be affirmed, otherwise, if its findings be unsupported, or if it be found to have abused its discretion, then the matter should be returned to the board for its further consideration in the light of the findings of the court.

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'The Supreme Court of our state has considered these rules in quite a number of instances and it is found that in appeals from board actions exercising quasi-judicial powers and without the authority of also exercising the boards' discretion, generally the first rule above stated has been applied, but in instances where the board is authorized to exercise discretion in the application of the facts that it may find and determine, then the latter of the two rules has been generally held to be applicable.'

'Chapter 31182 places a very considerable discretionary power in the Pinellas County Board in applying its factual determinations to its consideration of an application for a permit, and it is therefore this court's conclusion that the true and correct rule of law under which this appeal should be considered is the second of the rules above recited, the so-called 'substantial evidence' rule and the so-called 'abuse of discretion' rule, and this court has adopted such rule in its consideration of this appeal.

'The court has carefully inspected the testimony, the exhibits, the briefs of respective counsel, and has carefully listened to and considered the arguments of respective counsel. In each instance of a finding of fact by the Board, the court finds that there is substantial evidence supporting such finding; and such examination of the record and consideration of the cause having failed to reveal any abuse of its discretion by the Pinellas County Board, it follows that its action in issuance of the permit under consideration, should be, and the same is hereby affirmed.'

We are of the opinion that the lower court adopted the proper rule for reviewing the action of the Pinellas County Authority.

1. Fla.Jur., Admin.Law § 194, page 436, states the substantial evidence rule as follows:

'Aside from any possible contrary meaning in the statements that on statutory appeal from a determination of an administrative agency the determination should not be reversed unless 'clearly erroneous,' judicial review of administrative action in Florida is governed by the substantial evidence rule, which, the Supreme Court has said, should be invoked in all cases in which the administrative tribunal has the authority to conduct the hearing and make the effective order and the reviewing tribunal makes its determination on the record of the administrative tribunal. This rule is akin to the rule which requires an appellate court to give great weight to the findings of fact made by a jury or a chancellor and to sustain such findings unless there is no substantial evidence to support them. It is a salutary rule, founded in good common sense and irrefutable logic, and should be adhered to religiously.

'Under this rule administrative determinations or findings are not subject to judicial review, or will not be disturbed, if supported by substantial or competent substantial evidence.'

In the case of Nelson v. State, 1945, 156 Fla. 189, 23 So.2d 136, the Supreme Court said:

'The question which is determinative of this case on appeal (and it was before the Circuit Court in a proceeding in the nature of an appeal) may be stated in more than one form. We prefer to pose the query in the following verbiage--does a consideration of the record in its entirety disclose the ruling of the City Commission to be sustained by substantial evidence? We have held, and it seems to be an almost universal rule, that the findings of fact made by an administrative board, bureau, or commission, in compliance with law, will not be disturbed on appeal if such findings are sustained by substantial evidence. (Citations omitted.) The underlying and salient reasons for this safe and sane rule need not be repeated here. The fact that it is not the province of an appellate court to try cases de novo on a cold typed transcript is too elementary to require emphasis. * * *

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'Upon a careful consideration of the complete record, we find that the ruling of the City Commission is sustained by substantial evidence. It was the failure of the learned Circuit Judge to apply the rule which we invoke herein which caused him to fall into error. It is not difficult, however, to understand how a Circuit Judge, whose daily work is predominantly fact finding in character, might easily overlook this rule.'

While we have heretofore stated that the circuit court correctly adopted the substantial evidence rule in his review of the actions of the County Authority, we would not reverse his decision on certiorari even if he was in error in determining this question. The Florida Supreme Court, in the case of Sims Tire Service, Inc. v. Parker, 1941, 146 Fla. 23, 200 So. 524, 525, had before it an appeal from an order of the circuit court affirming on appeal an award by the Florida Industrial Commission to the widow of a deceased employee. The main contention on the appeal was that the deputy commissioner and,...