Bay Nat. Bank & Trust Co. v. Dickinson

• Citation: 229 So.2d 302
• Decision Date: 18 December 1969
• Docket Number: No. L--442,L--442
• Parties: BAY NATIONAL BANK AND TRUST COMPANY, Panama City, Florida, Appellant, v. Fred O. DICKINSON, as Comptroller of the State of Florida and State Commissioner of Banking, et al., Appellees.
• Court: Court of Appeal of Florida (US)

Page 302

229 So.2d 302

BAY NATIONAL BANK AND TRUST COMPANY, Panama City, Florida, Appellant, v. Fred O. DICKINSON, as Comptroller of the State of Florida and State Commissioner of Banking, et al., Appellees.

No. L--442.

District Court of Appeal of Florida, First District.

Dec. 18, 1969.

Truett & Watkins, Tallahassee, and Davenport, Johnston & Harris, Panama City, for appellant.

Earl Faircloth, Atty. Gen., T. T. Turnbull and William L. Camper, Asst. Attys. Gen., and Thomas Sale, Jr., Panama City, for appellees.

WIGGINTON, Judge.

Appellant seeks review of a final judgment dismissing with prejudice its complaint for a declaratory judgment on the ground that it failed to state a cause of action.

From the allegations of the complaint it affirmatively appears that appellant is a banking corporation licensed and doing business in Panama City. Appellee Dickinson, as State Commissioner of Banking, approved an application made by the named appellees for authority to organize a corporation to transact a general banking business in the adjoining community of Springfield, some three miles distant from the banking facility operated by appellant. The Commissioner's certificate of authorization was issued by him after investigation but without having first conducted a public hearing on the application. Based upon such authorization, the appellee Tom Adams, as Secretary of State, issued to the applicants therefor articles of incorporation as authorized by law. Appellant contends that the law mandatorily requires the Commissioner to hold a public hearing on every application made to him for approval to engage in the banking business in order that all interested parties might appear, offer evidence, cross-examine witnesses, and otherwise engage in an adversary proceeding on the merits of the application. Appellant contends that failure of the Commissioner to hold such a public hearing in this case violated the provisions of the statutes of this state and deprived it of procedural due process as guaranteed by the Constitutions of the State of Florida and the United States. The complaint prays for a declaration of its rights in the premises, and for judgment finding that the Commissioner abused his official discretion in approving appellees' application without a formal public hearing thereon, thereby rendering void his certificate of authorization to transact a banking business in this case.

The Commissioner's approval of appellees' application was granted pursuant to the authority of the Banking Code contained in Chapter 659, F.S. The Code requires that a written application for authority to establish a corporation to engage in the banking business shall contain the information specified in the Code. ¹ Upon receipt of such application, the Commissioner is required to make an investigation of certain enumerated factors, and based upon a consideration of such factors he shall in his discretion determine whether the application shall be approved. ² The Code is devoid of any requirement that a public hearing of any nature be held by the Commissioner before reaching his decision as to whether the application should be granted or denied. In passing upon such an application the Commissioner performs a purely quasi-legislative or quasi-executive function. His consideration of the application does not constitute an adjudication of rights vested in any person or corporation, but is an administrative determination as to whether a requested right shall be granted. In performing this function the Commissioner is required to comply with the provisions of the Code, and to exercise a sound discretion in reaching his final decision. If he violates any of the provisions of the Code in the handling of such application, acts capriciously, arbitrarily, fraudulently or in such manner as to amount to a gross abuse of discretion, his action may be enjoined and other appropriate relief granted at the suit of any interested party adversely affected. ³

Such conclusion was reached by this court in National Bank of Tampa v. Green. ⁴ In the Green case an existing bank sought to enjoin the Banking Commissioner from approving an application filed with him by a group of incorporators for authorization to engage in the banking business in Tampa. The complaint sought injunctive and declaratory relief on the ground that the Commissioner had failed to make a proper investigation and failed to fully consider relevant evidence pertaining to the factors specified in the Banking Code. Although conceding that the Commissioner is accorded a wide latitude of discretion in granting or withholding approval of an application to engage in the banking business, we nevertheless held that his actions in this regard are subject to review by the courts under proper circumstances. In that case we said:

'Since we hold that the Commissioner's discretion in approving an application for a bank charter is not absolute but is rather a discretion the exercise of which is conditioned by the several statutory limitations discussed above, we further hold that, if the Commissioner acts or threatens to act in violation of such statutory limitations, his acts or threatened acts may be subjected to judicial review under the provisions of Section 659.56, Florida Statutes, F.S.A.'

No question was raised in the Green case concerning the failure of the Commissioner to conduct a public hearing on the application then considered by him. It is our view, however, that the remedy for correcting any abusive or illegal acts committed by the Commissioner in the handling of such an application is by a suit for injunction and other relief as specified in the Code and quoted in the margin (see Footnote 3).

Appellant urges that even though the Banking Code contains no provision requiring a public hearing by the Commissioner as a necessary step in considering whether an application for authority to engage in the banking business should be granted or denied, that the approval or disapproval constitutes administrative action subject to the limitations and requirements of Chapter 120, F.S., the Administrative Procedure Act. Appellant points to that section of the Act which provides that: 'Any party's legal rights, duties, privileges or immunities shall be determined only upon public hearing by an agency unless the right to public hearing is waived by the affected party, or unless otherwise provide by law.' ⁵ The foregoing section is implemented by the next succeeding section which provides that: 'Parties affected by agency action shall be timely informed by the agency of the time, place, and nature of any hearing; the legal authority and jurisdiction under which the hearing is to be held; and the matters of fact and law asserted. * * *.' ⁶ Appellant asserts that it is vitally interested in the application of appellees in that the granting thereof will have a profound adverse effect upon its banking business located in the trading area to be served by appellees' newly chartered bank. On this premise appellant insists that procedural due process guaranteed by the Administrative Procedure Act required the Commissioner to hold a public hearing so that it would have the opportunity of appearing and offering evidence relevant to the statutory factors which must be considered by the Commissioner in determining whether the application should be approved.

We are unable to agree with appellant that the approval or disapproval by the Commissioner of the application in question under the terms and provisions of Chapter 659, F.S., falls within the purview of the Administrative Procedure Act. Part II of the Act dealing with administrative adjudication procedure sets forth the legislative intent as follows:

'It is the intent of the legislature to establish minimum requirements for the adjudication of any party's legal rights, duties, privileges or immunities by state agencies. * * *' ⁷

This part of the Act which includes the provisions guaranteeing a public hearing and providing for a proper notice thereof pertains solely to final orders entered by administrative agencies in the performance of a quasi-judicial function. In the recent case of Adams v. Board of Public Instruction of Oklaoosa County, ⁸ in commenting upon Chapter 120, F.S., the Administrative Procedure Act, this court said:

'* * * In any event, it must be pointed out that the cause of action involved in Negrich (Negrich v. Dade County Board of Public Instruction, (Fla.App.1962) 143 So.2d 498) accrued and was placed in litigation prior to the adoption by our legislature of Part III of the Administrative Procedures Act providing for judicial review of final orders or judgments rendered by state agencies in the exercise or quasi-judicial authority conferred upon them by law.

'In Board of Public Instruction of Duval County v. Sack ((Fla.App.1968) 212 So.2d 819) this court held that if review is sought of a final order rendered by a purely local governmental agency in the exercise of a quasi-judicial power, it must be by petition for writ of certiorari to to the appropriate circuit court. We further held, however, that if review is sought of a final order rendered by a state agency in the exercise of a quasi-judicial power, it must be by petition for writ of certiorari to the appropriate District Court of Appeal pursuant to the provisions of the Administrative Procedures Act, F.S. § 120.30 et seq., F.S.A.'

The purpose of the hearing requirement of the Act is to insure that a proper record of the proceeding on which the final order is based will be made so that aggrieved parties may obtain judicial review of the...