Huber Distributing Co., Inc. v. National Distributing Co., Inc., 44650

• Citation: 307 So.2d 176
• Decision Date: 04 December 1974
• Docket Number: No. 44650,44650
• Parties: HUBER DISTRIBUTING COMPANY, INC., a Florida corporation, and Grantham Distributing Co., Inc., a Florida corporation, Petitioners, v, NATIONAL DISTRIBUTING COMPANY, INC., a Georgia corporation, et al., Respondents.
• Court: Florida Supreme Court

Page 176

307 So.2d 176

HUBER DISTRIBUTING COMPANY, INC., a Florida corporation, and Grantham Distributing Co., Inc., a Florida corporation, Petitioners v NATIONAL DISTRIBUTING COMPANY, INC., a Georgia corporation, et al., Respondents.

No. 44650.

Supreme Court of Florida.

Dec. 4, 1974.

Rehearing Denied Feb. 20, 1975.

Mark H. Rodman of Henderson, Richardson, Henry, Buchanan, Munroe & Rodman, Tallahassee, for petitioners.

Wilbur E. Brewton of Taylor, Brion, Buker, Hames & Greene, Tallahassee, T. R. Manry, III, and Charles F. Clark, of MacFarlane, Ferguson, Allison and Kelly, Tampa, and J. Riley Davis, Tallahassee, for respondents.

PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ and have heard argument of the parties. Upon further consideration of the matter, we have determined that the cited decisions present to direct conflict as required by Article V, § 3(b)(3), Fla.Const. (1973). Therefore, the writ must be and is hereby

Discharged.

It is so ordered.

ADKINS, C.J., and ROBERTS, DEKLE and OVERTON, JJ., concur.

ERVIN, J., dissents with opinion.

ERVIN, Justice (dissenting):

We are asked to review by writ of certiorari the decision of the District Court of Appeal, First District, in National Distribution Company, Inc., v. Huber Distributing Co., Inc., 283 So.2d 122.

Reference should be made directly to the opinion and decision of the District Court reported at 283 So.2d 122 for an understanding of the facts and issues. As there indicated, the essential question is:

'Does a competitive license holder have a constitutional or statutory right to intervene in another's application for a license, via a protest and discovery and full hearing thereon?'

I think the answer should be in the affirmative and find conflict of decisions leading to that result. I agree with the judgment of the trial judge and would quash the reversal thereof by the District Court.

It appears from the record proper that the petitioners as protestors sought to intervene and show administratively to the Division of Beverage initially and, after the granting of the license to National Distributing Company, on appeal to the Board of Business Regulation that in

'. . . the course of dealings between National, Grantham and Huber, National had been engaged in various anti-competitive and monopolistic activities condemned by state and federal law as felonies and misdemeanors, which illegal monopolistic practices stood as grounds for immediate revocation of any beverage license under Section 561.29, Florida Statutes, and therefore, impaired National's qualification for the additional, seventh, wholesale license, and accordingly the establishment of these violations of law through Grantham's intervention or participation in the license proceedings would be determinative of the primary issue therein, that is the 'good moral character' of the corporate applicant.

'Petitioner Grantham's protest substantively asserted that National had in the past and continued to violate state and federal antitrust and trade regulation laws, concerning which violations Grantham had actual knowledge and which it sought to bring to the attention of the Division of Beverage in connection with the license application through its intervention or participation in the license proceeding, and which violations consisted of predatory price discrimination for the purpose of destroying competitors and competition, including Grantham and Huber, offending Section 540.01, Florida Statutes; unlawful price-fixing, exclusive dealing and other combinations in unreasonable restraint of trade and tending to monopolization by National of wine distribution in the State of Florida prohibited by Section 542.01, Florida Statutes, and by federal law; and unlawful acquisitions of the wholesale businesses of competitors having the effect of substantially lessening competition and tending to create a monopoly in the wholesale distribution of wine in the State of Florida in contravention of Section 7 of the Clayton Act (15 U.S.C. Section 18) and Section 542.01, Florida Statutes.'

Petitioners rely upon the following language of the trial judge's interlocutory orders granting temporary injunction and refusing to dissolve it:

'. . . The Court received no testimony or documentary evidence but decided the matter upon the Complaint and argument of counsel. (Per stipulation.)

'. . . It was agreed that the issue presented was the standing and right of Plaintiff to intervention and an appropriate hearing before the Beverage Division on the license application of Defendant, National Distributing Co., Inc., the Court being advised in the premises . . .

'The Plaintiffs had standing and the right to intervene and be heard by the Division, and the Division did accord the Plaintiffs some sort of hearing on the issues raised in the Protest . . . and accordingly Plaintiff Grantham Distributing Co., Inc. was not entirely denied a hearing before that agency . . . the Court expressly finds that said hearing by the Division on July 12, 1973, was not sufficient or adequate with regard to the subject matter thereof.

'Article IV, Section 6, of the Florida Constitution, Sections 120.22, 120.23 and 120.24, Florida Statutes, and Section 20.16(3)(a) in pari materia and in conjunction with Chapter 561, Florida Statutes, requires that the actions and decisions of the Division and its Director, including those set forth and described in Paragraphs 30--42 of the Complaint to have been done on July 12, 1973, with respect to the Protest and National Distributing Co., Inc.'s applications for a beverage license in Orlando, Florida, to which the Protest was directed, are subject to the control, supervision and review of the Department of Business Regulation. Thus, this Court holds that prior to the Division's approval, issuance and validation of that license, the Plaintiffs should have been, and must be, afforded the right and an opportunity to seek review of the Director's determination and decision on July 12, 1973, regarding the Protest and the Division's actions and procedures respecting said license application by appeal to the Board of Business Regulation and resort to the courts. . . .

'The Court has jurisdiction in this matter. Plaintiffs have standing to appeal the foregoing actions and decisions of the Division to the Board of Business Regulation pursuant to this Court finding that Plaintiff is an interested party. Further, it appears at this point that the Plaintiffs have apparent standing to maintain this action for declaratory and injunctive relief. The Court finds unless the temporary relief hereinafter set forth is granted irreparable injury will result to the interest of the Plaintiffs and perhaps to this State and its citizens. . . .'

In its order refusing to dissolve its temporary injunction, the trial court said:

'Based upon the facts asserted, the plaintiffs were and are interested persons within the meaning of Section 20.16(3)(2) (sic), Florida Statutes, and were entitled to intervene in the proceedings before the Division of Beverage. Furthermore, based upon the facts asserted, the plaintiffs were entitled to have the Board of Business Regulation review the action of the Division of Beverage, prior to the issuance of the license in question. The constitution requires that the administration of each department be placed under the direct supervision of the head of the department. Article IV, Section 6, Constitution of the State of Florida. To allow a division of a department to act independent of the department would render Article IV, Section 6 which limits the number of independent agencies or departments to twenty-five, meaningless. The department head's responsibility in this regard is further bolstered by Section 20.5(1) of the Florida Statutes which sets forth that except as otherwise provided, the head of the department shall, 'Plan, direct, coordinate, and Execute the powers, duties and functions vested in that department or Vested in a division, bureau or section of that department; Powers and duties assigned or transferred to a division, bureau, or section of a department shall not be construed to be a limitation upon this authority and responsibility . . .'. (Emphasis supplied). Section 20.16(3)(2) (sic) of the Statutes specifically provides that an 'interested person may appeal an adverse decision by a division to the department of business regulation'. Defendants have cited State ex. rel. Investment Corp. of So. Fla. v. Harrison v. Pallot, 247 So.2d 713 (Fla.1971), in support of their position, but the Court can find nothing in that case that would deny an interested person the right to appeal to the Board of Business Regulation an adverse decision of the Division of Beverage before a license is issued as appears to be specifically provided for in Section 20.16(3)(a) of the Florida Statutes.'

It is my view the trial court's interlocutory orders were correct and that in this case Petitioners had the statutory right as allegedly aggrieved competitors to intervene and be heard by the Division of Beverage, with right of appeal to the Board of Business Regulation. This right springs from the coordinated language of pertinent provisions of Chapter 20, the Governmental Reorganization Act, and Chapter 120, the Administrative Procedure Act. The holding to the contrary of the District Court of Appeal based upon such distinctions as superior exclusive 'quasi-judicial,' 'quasi-executive,' or 'quasi-legislative' functions precluding the right to intervene appears to me wholly insufficient to negate the application of the above statutes. This right is subject to no exclusion on some superior legislative or judicial basis that the intervenor has no standing because of supposed conclusively delegated license authority in the Division of Beverage. As the District Court has it, not even a judicial review of the license granted National...