Florida Peach Orchards, Inc. v. State by Dickinson

• Decision Date: 04 October 1966
• Docket Number: No. H--497,H--497
• Citation: 190 So.2d 796
• Parties: Blue Sky L. Rep. P 70,725 FLORIDA PEACH ORCHARDS, INC., a Florida corporation, Florida Peaches Corporation, a Florida corporation, and Robert Lurie, Appellants, v. STATE of Florida, by Fred O. DICKINSON, Jr., Comptroller, Earl Faircloth, Attorney General, and Broward Williams, State Treasurer, as and constituting the Florida Securities Commission, Appellee.
• Court: Florida District Court of Appeals

Page 796

190 So.2d 796

Blue Sky L. Rep. P 70,725

FLORIDA PEACH ORCHARDS, INC., a Florida corporation, Florida Peaches Corporation, a Florida corporation, and Robert Lurie, Appellants, v. STATE of Florida, by Fred O. DICKINSON, Jr., Comptroller, Earl Faircloth, Attorney General, and Broward Williams, State Treasurer, as and constituting the Florida Securities Commission, Appellee.

No. H--497.

District Court of Appeal of Florida, First District.

Oct. 4, 1966.

Rehearing Denied Oct. 25, 1966.

Charles H. Murchison, James S. Taylor and John D. Corse, of Ulmer, Murchison, Kent, Ashby & Ball, Jacksonville, for appellants.

Earl Faircloth, Atty. Gen., and Milton J. Wallace, Asst. Atty. Gen., for appellee.

SACK, Judge.

This is an interlocutory appeal from an order denying appellants' motion to dismiss a complaint for injunction and refusing to dissolve a temporary restraining order against appellants.

The sworn complaint alleged that it appeared to appellee, upon complaint and investigation, that the defendants-appellants have been engaged and are engaged and may continue to engage in acts and practices which constitute violations of Chapter 517, Florida Statutes, F.S.A., relating to the sale of securities. Then followed a detailed description of the defendants activities and of the contracts and certificates of interest being offered to the public, in alleged violation of the Act. Attached to the complaint was an order of the Securities Commission finding that the Commission had received information satisfactory to it that the appellants here have committed acts which constitute a violation of Chapter 517, Florida Statutes, F.S.A., and directing that injunctive proceedings be brought by the Attorney General against these appellants.

Upon the filing of the complaint, and on appellee's application without notice, a restraining order was granted containing the following general language, after several more specific paragraphs:

'ORDERED, ADJUDGED AND DECREED that the defendants, Florida Peach Orchards, Inc., a Florida Corporation, Florida Peaches Corporation, a Florida Corporation and Robert Lurie, their agents, servants, officers and employees be and they are hereby temporarily restrained from directly or indirectly engaging in practices, transactions or a course of business relating to the sale or issuance of securities

(a) which are in violation of law, and

(b) which are fraudulent, or

(c) which would operate as a fraud upon the purchasers of such securities.'

Thereafter appellants moved to dismiss the complaint and to dissolve the restraining order. These motions were denied, and this appeal follows.

Appellants contend they were entitled to notice and a hearing before the Securities Commission prior to its determination to proceed with the injunction proceedings, under Section 517.19, F.S.A., and Sections 120.22 and 120.23, Florida Statutes, F.S.A. (the latter two being part of the Administrative Procedure Act).

Section 517.19, F.S.A., provides so far as material here:

'The commission may investigate, and wnenever it shall believe from evidence satisfactory to it:

'(5) That any such person has engaged, is engaged or is about to engage in any of the practices or transactions referred to as fraudulent practices;

(6) Or is selling or offering for sale any securities in violation of this chapter or is acting as a dealer or salesman without being duly registered as provided in this chapter; the commission may, in addition to any other remedies, bring action in the name and on behalf of the state against such person and any other person concerned in or in any way participating in or about to participate in such fraudulent practices or acting in violation of this chapter, to enjoin such person or persons from continuing such fraudulent practices or engaging therein or doing any act or acts in furtherance thereof or in violation of this chapter. * * *'

Sections 120.22 and 120.23, Florida Statutes, F.S.A., read as follows:

'120.22 Hearing guarantee. 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 provided by law.

120.23 Notice of hearing. Parties affected by agency action shall be timely informed by the agency of the time, place, and nature of any hearing; the legal...