Dickinson v. Washington Federal Sav. and Loan Ass'n of Miami Beach, 73--413

• Decision Date: 20 June 1973
• Docket Number: No. 73--413,73--413
• Citation: 281 So.2d 603
• Parties: Fred O. DICKINSON, Jr., Comptroller of Florida and Ex-Officio State Banking Commissioner, Appellant, v. WASHINGTON FEDERAL SAVINGS AND LOAN ASSOCIATION OF MIAMI BEACH, Appellee.
• Court: Florida District Court of Appeals

Page 603

281 So.2d 603

Fred O. DICKINSON, Jr., Comptroller of Florida and Ex-Officio State Banking Commissioner, Appellant, v. WASHINGTON FEDERAL SAVINGS AND LOAN ASSOCIATION OF MIAMI BEACH, Appellee.

No. 73--413.

District Court of Appeal of Florida, Third District.

June 20, 1973.

Horton & Perse, Miami, Larry E. Levy, Gen. Counsel, Tallahassee, and William Corbin, Asst. Gen Counsel., Tallahassee, for appellant.

Ervin, Varn, Jacobs & Odom and Thomas M. Ervin, Jr., Tallahassee, Courshon & Courshon and Michael H. Salmon, Miami Beach, for appellee.

Before CHARLES CARROLL, HENDRY and HAVERFIELD, JJ.

PER CURIAM.

In this interlocutory appeal, appellant as Comptroller of the State of Florida and Ex-Officio State Banking Commissioner, seeks review of a trial court order granting appellee a temporary injunction against the holding of a hearing on the application for a branch office for American Savings & Loan Association under § 665.441, Fla.Stat., F.S.A. We are of the opinion that the temporary injunction entered herein was improvidently granted and accordingly reversed the order granting same.

Appellee was notified by appellant of the pending application for a branch office by American Savings & Loan and attached to the notice of public hearing was a set of rules and regulations for the conduct of the hearing. After appellee notified the appellant of its objection to the application and its intention to appear in opposition thereto at the hearing, appellee filed this action for declaratory and injunctive relief prior to the scheduled date of the hearing. ¹ Appellee contended that it would suffer immeasurable and irreparable damage in the event the application of American Savings was granted since appellee had a substantial amount of depositors from the area sought to be serviced by American Savings. Appellee questioned the rules promulgated for the conduct of the hearing on the grounds that the same were not duly filed with the Secretary of State's office as is required by the Administrative Procedure Act ² and question was directed as to substantive deviations of the rules from rules for hearings appearing within the Administrative Procedure Act. ³ Pursuant to appellee's prayer for relief the trial court entered a temporary injunction restraining appellant from conducting the hearing in question. From that order this interlocutory appeal was perfected.

The central question presented in this appeal is whether the procedures and proceedings necessary to process an application for a branch office of a savings and loan association under § 665.441, Fla.Stat., F.S.A., are quasi-judicial in nature requiring the application of the Administrative Procedure Act (§ 120.011 et seq., Fla.Stat., F.S.A.) or do the proceedings partake of a quasi-executive or quasi-legislative function so as to fall outside of the Act?

§ 665.441(3), Fla.Stat., F.S.A., provides for the method in which an application for such a branch office is to be processed. It reads:

'(3) Approval of establishment--

'Each application for approval of the establishment and maintenance of a branch office shall state the proposed location thereof, the need therefor, the functions to be performed therein, the estimated volume of business thereof, the estimated annual expense thereof, and the mode of payment therefor. Each such application shall be accompanied by a budget of the association for the current earnings period and for the next succeeding semiannual period, which reflects the estimated additional expense of the maintenance of such a branch office. Upon the receipt by the department of such an application, it shall notify other thrift institutions in the state and hold a hearing on said application, said notification and hearing following the procedure as set out in § 665.031(3). It shall determine whether the establishment and maintenance of such office will unduly injure any properly conducted existing association or federal association in the community where such branch office is proposed to be established. If it finds that no undue injury is likely to result and that the establishment and maintenance of such branch office is advisable, it may approve the application.'

The pertinent provisions of § 665.031 ⁴ Fla.Stat., F.S.A., (as amended 1972) sets out the specific standards and procedures to be followed by the Department. It provides:

'(3) Investigation by department.--Upon the filing of an application the department shall make an investigation of:

'(a) The character, financial standing, responsibility and experience of the persons named in the application to conduct the affairs of the thrift institution;

'(b) The public need for a thrift institution or additional thrift institution, as the case may be, in the community where the proposed thrift institution is to be located, giving particular consideration to the present and future ability of the community to support both the proposed and all other existing thrift institutions in the community in the conduct of profitable operations.

'(4) Public hearing.--If, based upon the information contained in the application and developed through investigation, the department shall find favorable factors predominating, a public hearing shall be scheduled and notice thereof shall be given to any trade association in the state representing fifty percent (50%) or more of the associations located in the state. Such public hearing shall be held pursuant to rules and regulations promulgated by the department. Any interested person may appear in person or by agent or attorney and orally or in writing show cause upon any relevant ground why the application should not be approved.

'(5) Decision by department.--The department shall approve or disapprove the application at its discretion but it shall not approve such application unless, in its opinion:

'(a) Public convenience and advantage will be promoted by the establishment of the proposed thrift institution;

'(b) Local conditions assure reasonable promise of the successful operation of the proposed thrift institution and of those thrift institutions already established in the community;

'(c) The proposed officers and directors have good character, sufficient financial standing, and adequate experience and responsibility to assure reasonable promise of the successful operation of the thrift institution; and

'(d) The proposed savings account capital and organization expense fund complies with the requirements of this chapter.'

We are of the opinion that the case sub judice is controlled by the decision of our sister court in the case of Bay National Bank and Trust Co. v. Dickinson, Fla.App.1969, 229 So.2d 302. In that cause, the appellant, a banking corporation licensed and doing business in Panama City, challenged the authority of Dickinson, as State Commissioner of Banking, to approve an application of another corporation to organize a banking business in the adjoining community of Springfield, pursuant to Ch. 659, Fla.Stat., F.S.A. ⁵ The appellant contended that prior to any action by the Commissioner a public hearing was required under the provisions of the Administrative Procedure Act. ⁶ In reviewing the functions and duties of the Commissioner the court n...