Bigler v. Department of Banking and Finance

• Decision Date: 19 February 1981
• Docket Number: No. 56417,56417
• Parties: John E. BIGLER, Jr., Michael H. Cates, Grant W. Bailey, Charles C. Bundschu, Jr., Frank C. Lawson, Hugh J. Morgan, Rogers C. Stevens, Helen Trandel, the Organizers of the Lower Keys State Bank (Proposed), Appellants, v. DEPARTMENT OF BANKING AND FINANCE, and Gerald A. Lewis, Comptroller of Floridaas Head of Said Department, Appellees.
• Court: Florida Supreme Court

Page 989

394 So.2d 989

John E. BIGLER, Jr., Michael H. Cates, Grant W. Bailey, Charles C. Bundschu, Jr., Frank C. Lawson, Hugh J. Morgan, Rogers C. Stevens, Helen Trandel, the Organizers of the Lower Keys State Bank (Proposed), Appellants, v. DEPARTMENT OF BANKING AND FINANCE, and Gerald A. Lewis, Comptroller of Floridaas Head of Said Department, Appellees.

No. 56417.

Supreme Court of Florida.

Feb. 19, 1981.

Larry Levy of Dickinson, Levy & Taylor, Tallahassee, for appellants.

Eugene J. Cella, Gen. Counsel, and S. Craig Kiser and Karlyn Anne Loucks, Asst. Gen. Counsels, Tallahassee, for appellees.

SUNDBERG, Chief Justice.

By direct appeal, appellants seek review of a decision of the District Court of Appeal, First District, reported at 368 So.2d 449. Because the district court initially and directly passed upon the constitutionality of a state statute, we have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972). We affirm.

On June 17, 1974, appellants submitted to the Department of Banking and Finance an application for authority to organize a corporation to conduct a general banking business on Big Pine Key, Monroe County, Florida. By letter dated March 28, 1975, the Department required that all pending applications for bank charters be resubmitted without an additional filing fee. Appellants complied by filing a new application on March 31, 1976, and sent additional requested information to the Department in May of 1976.

In a memorandum dated July 8, 1977, the Department advised appellants that their application would be processed pursuant to chapter 77-453, Laws of Florida, effective June 30, 1977, in conjunction with the emergency rules adopted by the Department to implement chapter 77-453. Appellants promptly acknowledged receipt of this memorandum, apparently without opposition to its provisions.

State bank examiners conducted a field investigation in October of 1977 and submitted their report on November 1, 1977. The Department rendered its final order denying appellants' application on December 22, 1977.

Appellants filed a petition for writ of certiorari in the district court, alleging that the controlling statutory provisions, subsections (1)(b) and (c) of section 659.03, Florida Statutes (1977), improperly delegated legislative authority to the Department of Banking and Finance. They also asserted that the procedures employed in evaluating their application deprived them of due process. The District Court of Appeal, First District, rejected these arguments and affirmed the agency action.

Appellants renew their assault upon the constitutionality of section 659.03(1) (b) and (c) in this Court. They contend that like the statute regulating establishment of cemeteries held invalid in Dickinson v. State, 227 So.2d 36 (Fla.1969), section 659.03 is so lacking in legislative standards and guidelines that it unlawfully delegates legislative authority.

We are unpersuaded by appellants' argument. In relevant part, the legislative scheme for the evaluation of banking applications is contained in section 659.03(1) and (2):

(1) Upon the filing of an application, the department shall make an investigation of:

(a) The character, reputation, financial standing and motives of the organizers, incorporators and subscribers in organizing the proposed bank or trust company.

(b) The need for banking or trust facilities or additional banking or trust facilities, as the case may be, in the community where the proposed bank or the principal office of the proposed trust company is to be located, giving particular consideration to the adequacy of existing banking or trust facilities and the need for further banking or trust facilities in the locality.

(c) The present and future ability of the community to support the proposed bank or the principal office of the proposed trust company and all other existing banking or trust facilities in the community.

(d) The character, financial responsibility, banking experience, and business qualifications of the proposed officers.

(e) The character, financial responsibility, business experience, and standing of the proposed stockholders and directors.

(2) The department shall approve or disapprove the application, in its discretion, but it shall not approve such application until, in its opinion:

(a) Public convenience and advantage will be promoted by the establishment of the proposed bank or trust company.

(b) Local conditions assure reasonable promise of successful operation for the proposed bank or the principal office of the proposed trust company and those banks or trust companies already established in the community.

(c) The proposed capital structure is adequate.

(d) The proposed officers and directors have sufficient banking or trust experience, ability and standing to assure reasonable promise of successful operation.

(e) The name of the proposed bank or trust company is not so similar as to cause confusion with the name of an existing bank.

(f) Provision has been made for suitable banking house quarters in the area specified in the application.

Reading the provisions of subsections (1) and (2) in pari materia, it is apparent that the legislature in subsection (1) has delineated the scope and subject matter of the Department's investigation into each banking application. The facts derived from that investigation will then serve as a basis for the six conclusions which, under subsection (2), must be reached before the Department may approve an application. The terms in section 659.03(1)(b) and (c), seized upon by appellants as vague and indefinite, are defined and clarified by the criteria in section 659.03(2)(a) and (b). It thus becomes clear that the Department, its scrutiny of banking applications channelled by the above statutory provisions, implements the law rather than makes it. See National Bank of Tampa v. Green, 175 So.2d 545, 550 (Fla. 1st DCA 1965); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

This case is unlike Dickinson v. State, supra, where the only legislative standard imposed on the comptroller when considering an application for operation of a cemetery was that there exist a need for cemetery service in the area. As contrasted with the statutory scheme here under consideration, no criteria for assessment of need were supplied by that statute.

In processing appellants' application, the Department followed the procedures for notice and hearing outlined in chapter 77-453, Laws of Florida, which amended section 120.60(3), Florida Statutes (1977). Because their application was filed prior to 1977, appellants contest the use of the amended procedures to their case. Section 7 of chapter 77-453, however, belies this contention. It provides the only exceptions to the new act:

This act shall not apply to any contested application which has been referred to the Division of Administrative Hearings by the agency on the effective date of this act, nor shall the time limit for automatic approval contained in paragraph (c) of section 120.60(3), Florida Statutes, as created by this act begin until the effective date of this act for those new bank, trust company, savings and loan or credit union applications which were...