Hyman v. State, Dept. of Business Regulation, Division of Pari-Mutuel Wagering
| Decision Date | 23 June 1981 |
| Docket Number | No. 80-1969,PARI-MUTUEL,80-1969 |
| Citation | 399 So.2d 1098 |
| Parties | Toby HYMAN, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OFWAGERING, Appellee. |
| Court | Florida District Court of Appeals |
Levine & Green and Bruce David Green, Fort Lauderdale, Wolfson, Appel & Brown, Miami, for appellant.
Mary Jo M. Gallay and David Maloney, Tallahassee, for appellee.
Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
The appellant Hyman is the owner of a horse named Classy State which won the seventh race at Calder Race Course on October 28, 1978. Almost a year later, on October 23, 1979, he received an ex parte order of the Division of Pari-Mutuel Wagering which for the first time informed him of its allegation that Classy State had run under the influence of a drug. On this basis, the division, pursuant to its then-existing Rule 7E-1.06(13), Florida Administrative Code, the so-called "purse redistribution rule," sought to require Hyman to return the winner's purse of $5,400 to Calder. Hyman requested a hearing, which was conducted by and before the director of the division on April 23, 1980. 170 days later, on October 10, 1980, he rendered a final order finding that the horse had indeed been drugged and ordering the refund of the purse. Hyman appeals.
It is undisputed that the 170 day post-hearing delay before the rendition of the final order, which is neither explained nor even sought to be excused, was in clear violation of the terms of Section 120.59(1)(a), Florida Statutes (1979), which provides:
(1) The final order in a proceeding which affects substantial interests shall be in writing or stated in the record and include findings of fact and conclusions of law separately stated, and it shall be rendered within 90 days:
(a) After the hearing is concluded, if conducted by the agency. 1 (emphasis supplied)
Because we hold that a violation of this mandatory requirement per se renders unenforceable an agency order in a proceeding in which the agency is the protagonist, the order below is reversed.
There is no question either of the purpose or the meaning of the statute in question. It was obviously designed to keep within reasonable bounds the delay in the adjudication of rights and privileges which has infected legal proceedings in general, and, as a matter of common and often-commented-upon notoriety, administrative ones in particular. See 1 K. Davis, Administrative Law Treatise § 8.08 (1958). And, in the most mandatory expression available, Section 120.59(1) unequivocally states that the time limits it contains "shall" be observed. See Tascano v. State, 393 So.2d 540 (Fla.1980). Notwithstanding the clarity which thus surrounds the statute, sharply differing views have been expressed as to the consequences of an agency violation of its terms. In Financial Marketing Group, Inc. v. State, Department of Banking and Finance, Division of Securities, 352 So.2d 524 (Fla.3d DCA 1977), this court indicated, in language which is admittedly dicta but which is also unmistakable in tone, that it strongly inclined to the view that an unexcused and unwaived violation of Section 120.59(1) would in and of itself result in reversal. At 352 So.2d 525, it was said:
As to the first alleged error, we agree that the language of the statute is mandatory and the respondent should have rendered its final order within 90 days after the recommended order was submitted by the hearings examiner. The statute does not provide a penalty for violation of this section, and the petitioners urge that the penalty should be that the licenses, as required by the petitioners, should issue. We certainly agree that the State agencies should follow mandates of the Legislature. We further observe that the regulatory agencies should not frustrate a citizen's attempt to secure a license to pursue a vocation or profession by inaction. In there were no other basis to reverse the agency's action under review, we might adopt the penalty suggested by the petitioners and require the issuance of the licenses because of the failure of the respondent to follow the mandatory provisions of Section 120.59, Florida Statutes.
Subsequently, however, the first district took quite another tack in G & B of Jacksonville, Inc. v. State, Department of Business Regulation, Division of Beverage, 362 So.2d 951 (Fla. 1st DCA 1978), appeal dismissed, 372 So.2d 468 (Fla.1979). While paying lip service to the mandatory nature of the statute, G & B held that a departure from Section 120.59(a) would not cause reversal unless the delay resulted in an impairment of "either the fairness of the proceedings or the correctness of the action" as provided by Section 120.68(8), Fla.Stat. (1979). 2 While we think it clear that no such showing has been made in this case, 3 we cannot agree with this approach to the issue before us. In the first place, the violation of the express statutory command was, in our view, far more than the "error in procedure or a failure to follow prescribed procedure" referred to in Section 120.68(8). The interest in the timely disposition of actions which is expressed in Section 120.59(1), and is reflected in various other legal contexts, see, e. g., Fla.R.Jud.Admin. 2.050(f), Fla.R.Crim.P. 3.191, is certainly of sufficient independent significance to justify enforcement by the courts even if the fairness of the proceedings 4 or the correctness of the result is not otherwise implicated. More important, the G & B rule does not effect, in any meaningful way, the clearly expressed legislative intent to eliminate the mischief created by delay beyond the statutory period. 5 See Fla.Jur. Statutes §§ 77, 106 (1974). Unless Section 120.59(1) is enforced according to its terms in a prophylactic manner and with some adverse consequence to the agency which inexcusably ignores it, its command will become a meaningless hortatory homily which may be ignored with impunity, as it was in this very case. In this connection, we reject the statement in G & B at 362 So.2d 955 that
(i)t hardly seems appropriate to interpret the rule differently depending upon whether the parties are an agency and a private citizen or whether conflicting interests of multiple private parties are involved. For example, what would be the consequences of a violation of the 90-day rule were the Public Employees Relations Commission to enter an untimely order in a dispute between an employer and a labor union? 6
It seems clear that this distinction is a significant, indeed, a decisive one. While it would be unjust to visit an agency's derelictions upon contending private parties who appear before it in its quasi-judicial capacity, 7 it is entirely appropriate to apply the statute, as it were, against the agency when, as here (and in G & B ) it acts also as a quasi-executive in the enforcement of the regulatory laws within its jurisdiction. In such a case we know of no better way in fact, of no other way to serve the legislative intent than to put the agency at the certain risk of losing its own case if it fails to comply.
The two agency-vs.-private parties cases which have been decided since G & B are in accordance with the per se rule we foreshadowed in Financial Marketing and expressly apply here. The first district in City of Panama City v. PERC, 364 So.2d 109 (Fla. 1st DCA 1978), and the second district in Pinellas County v. PERC, 379 So.2d 985 (Fla. 2d DCA 1980) each reversed agency action solely because of a violation of Section 120.59(1), even though both opinions show and Judge Smith's dissent in City of Panama City specifically points out that there was no prejudice or other adverse effect which resulted from the delay. While we may dispute the precise mode of reasoning employed by these decisions, see note 5, supra, they lend clear support for our present holding.
In sum, we...
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