Florida Leisure Acquisition Corp. v. Florida Com'n on Human Relations

• Decision Date: 08 July 1994
• Docket Number: No. 94-630,94-630
• Parties: 19 Fla. L. Weekly D1473 FLORIDA LEISURE ACQUISITION CORPORATION, Petitioner, v. FLORIDA COMMISSION ON HUMAN RELATIONS, and David Faison, Respondents.
• Court: Florida District Court of Appeals

Page 1028

639 So.2d 1028

19 Fla. L. Weekly D1473

FLORIDA LEISURE ACQUISITION CORPORATION, Petitioner, v. FLORIDA COMMISSION ON HUMAN RELATIONS, and David Faison, Respondents.

No. 94-630.

District Court of Appeal of Florida Fifth District.

July 8, 1994.

Loren E. Levy, Law Offices of Larry E. Levy, Tallahassee, and Bruce R. Kaster, of Green, Kaster & Falvey, P.A., Ocala, for petitioner.

Dana Baird, General Counsel, and Harden King, Asst. General Counsel, Tallahassee, for respondent, Florida Com'n on Human Relations.

No appearance for respondent, David Faison.

GRIFFIN, Judge.

Petitioner, Florida Leisure Acquisition Corporation ["Florida Leisure"] seeks review of a non-final order of the Florida Human Relations Commission ["FHRC"] rejecting a recommended order of a hearing officer of the Division of Administrative Hearings. The hearing officer found that Florida Leisure did not engage in a racially discriminatory employment practice when it terminated the employment of David Faison ["Faison"].

The liability and damages aspects of the case were bifurcated pursuant to stipulation of the parties. Florida Leisure asserts such bifurcation is "prevalent" in such discrimination cases. The hearing officer took evidence on the issue of whether Florida Leisure had engaged in a racially discriminatory employment practice and issued his recommended order. FHRC issued its order rejecting the "no discrimination" findings of the hearing officer ¹ and ordered the case remanded to the hearing officer for an evidentiary hearing on damages.

Our threshold concern is whether there is jurisdiction to review this non-final administrative order. Florida Leisure has offered us a candid and lucid analysis of the jurisdictional issue, and we agree that jurisdiction lies in the district court of appeal to immediately review a non-final administrative order if review of the final agency action would not provide an adequate remedy. Fla. Const. Art. V, § 4(b)(2); Fla.R.App.P. 9.100(a), (c); § 120.68(1), Fla.Stat. (1993). Florida Leisure urges that because the proceeding was bifurcated, assertedly to foster the "conciliatory" purpose of Chapter 760, Florida Statutes, any limitation of review of the order finding discrimination until after the agency issues its final order would be inadequate:

Bifurcation is common in employment discrimination suits because it allows the parties initially to determine whether liability exists. If liability exists, the parties may attempt to agree upon some affirmative relief without the necessity of a time consuming and expensive damages proceeding. One of the powers of the commission is to seek to conciliate employment disputes. See 760.06(5), Fla.Stat. (1993).

Florida Leisure has not persuaded us, however, that it would be deprived of an adequate remedy if appellate review were delayed until after the final order determining all issues. The necessity of trying a case to conclusion before obtaining redress on appeal from an erroneous interlocutory ruling of the lower court does not make the remedy inadequate. See Deseret Ranches of Florida, Inc. v. St. Johns River Water Management Dist., 406 So.2d 1132 (Fla. 5th DCA 1981), aff'd in part, rev'd in part, 421 So.2d 1067 (Fla.1982); Gordons Jewelry Co. of Florida, Inc. v. Feldman, 351 So.2d 1117 (Fla. 4th DCA 1977). A party burdened by an erroneous ruling in an administrative proceeding is no worse off than any civil litigant who has to await the final judgment before deciding whether to appeal an adverse interlocutory ruling. The parties are free to "conciliate" at any point no matter whether the interlocutory order at that moment controlling the proceedings is correct or erroneous; both sides will have to assess the chances that the interlocutory order will hold up on plenary appeal.

Florida Leisure has pointed out that the Florida Supreme Court has authorized interlocutory appeals in civil cases where the issues of liability and damages were bifurcated. Metropolitan Dade County v. Green, 596 So.2d 458 (Fla.1992). The high court, however, did so based upon its interpretation of the appellate rule governing appeals of non-final orders in civil cases. See Fla.R.App.P. 9.130(a)(3)(C)(iv). Non-final administrative orders are not reviewable under that rule, however. Fla.R.App.P. 9.130(a)(1). Review is authorized pursuant to section 120.68(1), Florida Statutes, and Florida Rule of Appellate Procedure 9.100 and is limited to cases where review after entry of the final order is inadequate.

PETITION DENIED.

DAUKSCH, J., concurs.

COBB, J., concurs specially, with opinion.

COBB, Judge, concurring specially.

While I am forced to concur with the majority in regard to our certiorari jurisdiction in this matter, I do so reluctantly because the record before us amply demonstrates that, once again, the Florida Commission on Human Relations has rejected factual findings of its own hearing...