Citizens of Florida v. Mayo, 50446

Citation357 So.2d 731
Decision Date06 April 1978
Docket NumberNo. 50446,50446
PartiesThe CITIZENS OF the State of FLORIDA, Petitioners, v. William T. MAYO, Chairman, William H. Bevis, Commissioner, and Paula F. Hawkins, Commissioner, as and constituting the Florida Public Service Commission, Respondents.
CourtUnited States State Supreme Court of Florida

Larry Levy, Public Counsel and C. Earl Henderson and Peter Andrew Knocke, Associate Public Counsel, Tallahassee, for petitioners.

William L. Weeks, Gen. Counsel, and Barrett G. Johnson, Tallahassee, for Florida Public Service Com'n, respondents.

D. Fred McMullen, Lee L. Willis and James D. Beasley of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Tampa Elec. Co., intervenor-respondent.

R. Y. Patterson, Jr., and Daniel O. White, Winter Park, for Fla. Gas Co., intervenor-respondent.

Walter H. Alford, Miami, for Southern Bell Tel. and Tel. Co., intervenor-respondent.

Dan R. Schwartz, in pro. per.

ADKINS, Justice.

We have for review by writ of certiorari an order of the Public Service Commission denying a petition of public counsel wherein he sought to have the Commission institute rule making proceedings pursuant to the provisions of Section 120.54, Florida Statutes (1975) for the purpose of adopting an amendment to the Commission's rule regarding agenda conferences (25-1.40, Florida Administrative Code) in the form proposed by public counsel.

An agenda conference is a medium for decision making. A particular matter does not come up before the Commissioners at an agenda conference until after all steps involved in the development of the record in such matters have been concluded. An agenda conference is analogous to jury deliberations in a court trial, or a conference among a panel of judges following oral argument on an appeal. The Commission holds its conferences with its advisory staff in public on a regularly scheduled basis, as provided in Rule 25-1.40. These conferences, called agenda conferences, deal with whatever matters are ready for decision at the time they are held, and typically cover many cases. In accordance with the Administrative Procedure Act, an agenda is prepared and distributed to the public in advance listing those cases scheduled for decision at a given conference. In addition, all summaries by advisory staff are public documents.

This proceeding was prompted by petitioner's stated desire to actively participate in Commission agenda conferences. The existing Commission rule governing agenda conferences reads:

"25-1.40 Agenda Conferences. Decisions by the Commission are made and votes thereon are taken at agenda conferences, which are normally held in the Commission's offices in Tallahassee on the first, third and fifth Mondays of each month; agenda conferences are also held at other times and places as necessary. Single copies of the agenda for each conference may be obtained without charge on request to the Commission Clerk. Notices announcing the specific time, date and place of each agenda conference are published in the Florida Administrative Weekly approximately ten (10) days in advance. Summaries and responses to Commissioners' inquiries, if any, are made only by the Commission staff. Participation in Commission proceedings by the parties and the public generally is provided for under the provisions of Chapter 25-2, Florida Administrative Code.

Specific Authority 350.12(1)(m), 364.20, 364.42, 366.05(1), 367.121(1)(f), 120.53, F.S. Law Implemented 350.121(350.12)(1)(m), 364.20, 364.42, 366.05(1), 367.121(1)(f), 120.53, F.S. History New 10-20-75."

Petitioner here faults the Commission for denying his petition to amend the foregoing rule to read as follows:

"25-1.40 Agenda Conferences. Decisions by the Commission are made and votes thereon are taken at agenda conferences, which are normally held in the Commission's offices in Tallahassee on the first, third and fifth Mondays of each month; agenda conferences are also held at other times and places as necessary. Single copies of the agenda for each conference may be obtained without charge on request to the Commission Clerk. Notices announcing the specific time, date and place of each agenda conference are published in the Florida Administrative Weekly approximately ten (10) days in advance. Summaries and responses to Commissioners' inquiries, if any, are made only by the Commission staff[DELETED:.] [ADDED:and the Office of the Public Counsel]. Participation in Commission proceedings by the parties and the public generally is provided for under the provisions of Chapter 25-2, Florida Administrative Code.

Specific Authority [ADDED:350.0611], 350.12(1)(m), 364.20, 364.42, 366.05(1), 367.121(1)(f), 120.53, F.S. Law Implemented [ADDED:350.0611], 350.12(1)(m), 364.20, 364.42, 366.05(1), 367.121(1)(f), 120.53, F.S. History New 10-20-75."

Petitioner does not allege that the Commission departed from appropriate rule making procedures in disposing of his petition for an amendment to the rule, nor does he seek a determination by this Court that the existing Commission rule governing agenda conferences is invalid. The order under review does not purport to pass directly upon the validity of the existing rule.

Petitioner does not challenge the order as constituting a refusal by the Commission to exercise its discretion to adopt rules of practice or procedure as required in Section 120.53, Florida Statutes (1975).

Petitioner says that Section 350.0611, Florida Statutes (1975) mandates the adoption of his proposed rule amendment verbatim. He relies upon the following portion of the statute:

"It shall be the duty of the public counsel to provide legal representation for the people of the state in proceedings before the commission. The public counsel shall have such powers as are necessary to carry out the duties of his office, including, but not limited to, the following specific powers:

(1) To recommend to the commission, by petition, the commencement of any proceeding or action or to appear, in the name of the state or its citizens, in any proceeding or action before the commission and urge therein any position which he deems to be in the public interest, . . ." (Emphasis added.)

His argument would have to rest upon this principle for this Court cannot require the adoption of a specific rule by the Public Service Commission. See State ex rel. Allen v. Rose, 123 Fla. 544, 167 So. 21 (1936); State ex...

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17 cases
  • State, Dept. of Ins. v. Insurance Services Office, VV-367
    • United States
    • Court of Appeal of Florida (US)
    • 3 Mayo 1983
    ...a court may not substitute its judgment for that of the agency. Section 120.68(12), Florida Statutes (Supp.1978); Citizens of Florida v. Mayo, 357 So.2d 731 (Fla.1978). In Bowling v. Department of Insurance, 394 So.2d 165, 174 (Fla. 1st DCA 1981), this court compared the presumption of vali......
  • Metropolitan Dade County v. P.J. Birds, Inc., 93-1578
    • United States
    • Court of Appeal of Florida (US)
    • 12 Abril 1995
    ...discretion and this Court will not substitute its judgment for that of the agency on an issue of discretion." Citizens of Florida v. Mayo, 357 So.2d 731, 733 (Fla.1978). The Florida Supreme Court has thus explicitly recognized that an administrative agency may proceed with case-by-case adju......
  • Florida Waterworks Ass'n v. Florida Public Service Com'n
    • United States
    • Court of Appeal of Florida (US)
    • 15 Julio 1985
    ...It is clear that this Court will not substitute its judgment for that of the PSC on a discretionary decision. Citizens of Florida v. Mayo, 357 So.2d 731 (Fla.1978). This particular policy choice finds ample support in the record, where it is shown that an income tax expense adjustment had b......
  • Guerra v. State, Dept. of Labor & Employment Sec., s. 81-1493
    • United States
    • Court of Appeal of Florida (US)
    • 15 Marzo 1983
    ...of the enactment and content of a particular administrative rule are ordinarily matters of agency discretion, Citizens of Florida v. Mayo, 357 So.2d 731 (Fla.1978); Sec. 120.68(12), Fla.Stat. (1979), this principle gives way in the face of a legislative requirement to the contrary. Citizens......
  • Request a trial to view additional results
1 books & journal articles
  • State agency rulemaking procedures and rule challenges.
    • United States
    • Florida Bar Journal Vol. 75 No. 1, January 2001
    • 1 Enero 2001
    ...120.54(2)(b). (17) Id. at [sections] 120.54(1)(d). (18) Id. at [sections] 120.54(7). (19) Id. (20) Citizens of Florida v. Mayo, 357 So. 2d 731 (Fla. (21) FLA. STAT. [sections] 120.54(2)(a). (22) Id. (23) Id. at [sections] 120.54(2)(c). (24) Id. at [sections] 120.54(3)(a). (25) Id. (26) Id. ......

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