State ex rel. Dept. of General Services v. Willis

• Decision Date: 29 March 1977
• Docket Number: No. DD--104,DD--104
• Citation: 344 So.2d 580
• Parties: STATE of Florida ex rel. DEPARTMENT OF GENERAL SERVICES et al., Relators, v. Ben C. WILLIS, Circuit Judge, Second Judicial Circuit of Florida, and Shannon R. Ginn Construction Co., et al. (real parties in interest), Respondents.
• Court: Florida District Court of Appeals

Page 580

344 So.2d 580

STATE of Florida ex rel. DEPARTMENT OF GENERAL SERVICES et al., Relators, v. Ben C. WILLIS, Circuit Judge, Second Judicial Circuit of Florida, and Shannon R. Ginn Construction Co., et al. (real parties in interest), Respondents.

No. DD--104.

District Court of Appeal of Florida, First District.

March 29, 1977.

Rehearing Denied May 2, 1977.

John A. Barley, Gen. Counsel, Dept. of Gen. Services, and Daniel S. Dearing and Donna H. Stinson, Daniel S. Dearing Law Offices, Tallahassee, for relators.

Henry P. Trawick, Jr., Millican, Trawick & Griffis, P.A., Sarasota, and Anthony J. McNicholas, III, Holland & Knight, Tallahassee, for respondents Ginn and others, real parties in interest.

SMITH, Judge.

This suggestion for writ of prohibition questions the jurisdiction of Florida's circuit courts to entertain suits to enjoin allegedly illegal governmental action for which a remedy is provided by the Administrative Procedure Act, Chapter 120, Florida Statutes (Supp.1976). Relators are the Department of General Services and the Governor and Cabinet, as head of the Department, an agency subject to the Act. Sections 20.22(1), 120.52(1). They seek to prevent the respondent circuit judge from entertaining the complaint of respondents Shannon R. Ginn Construction Co. and others, who demand an injunction restraining the Department from completing bidding and contract procedures devised to obtain 'uniform interior components'--doors, ceilings, carpeting, partitions, air distribution systems and lighting fixtures--for several regional service centers to be constructed by the Department in major Florida cities.

Ginn and the other respondents in interest are licensed general contractors engaged in the business of constructing public buildings. Their complaint alleges that:

'Heretofore the State has always obtained interior components for its public buildings in the course of their original construction by the bid of the general contractor selected for the project.'

Relator Department has now determined to vary the usual bidding and award procedure by adopting separate specifications and inviting separate bids for uniform interior components desired for each of the widely scattered construction projects. Ginn and the others do not allege specifically that the Department's bidding and contract procedure violates statutory law, only that in several respects the procedure volates usual and acceptable standards for the award of contracts for public works, ¹ will result in increased cost to the State and taxpayers and will deprive respondents and their potential subcontractors and material suppliers of opportunities to bid. Respondents assert entitlement to injunctive relief not only as general contractors directly affected by the agency action but also as citizens and taxpayers of Florida. The respondent circuit judge denied the Department's motions to dismiss the action for lack of jurisdiction and for failure to state a cause of action.

In considering the appropriateness of a writ of prohibition to prevent assumption of jurisdiction by the circuit court, we give no great significance to the complaint's failure to allege in terms that the Department's action is illegal. We are concerned here with the circuit court's power to act at all in the controversy, not with any error in the court's failure to dismiss the complaint for failure to state a cause of action. See State ex rel. Hill v. Hearn, 99 So.2d 231 (Fla.1957); White v. State ex rel. Johnson, 160 Fla. 965, 37 So.2d 580 (1948). We therefore treat the complaint as though it alleges or is amendable to allege the Department's bidding and contract procedure violates Section 255.29, Florida Statutes (1975), requiring adoption of rules achieving awards of State work to 'the lowest qualified bidder,' or violates the Department's rules, or violates other law.

The Department's issuance of specifications for uniform interior components for the public buildings was agency action as that term is understood in the 1974 Administrative Procedure Act. That action affects the substantial interests of the respondent general contractors as prospective bidders for the public work under consideration. It is of no consequence to today's decision whether the Department's action thus far is a recognizable rule or an order, or incipiently a rule or order. Whatever its present state, the Department's action is or upon challenge will mature into a rule or order concerning which the Act assures respondents an opportunity to be heard according to 120.57(1) or (2) procedures and, if the result is adverse, judicial review: '(W)ith only a few exceptions clearly spelled out in the statute, all agency action is covered in one way or another, either as a rule, or as an order.' ² Sections 120.57, 120.68, Florida Statutes (Supp.1976); Lewis v. Judges of the District Court of Appeal, 322 So.2d 16, 19 (Fla.1975); Broward Co. v. Admin. Comm'n, 321 So.2d 605 (Fla.1st DCA 1975); Bert Rogers School of Real Estate v. Florida Real Est. Comm'n, 339 So.2d 226 (Fla.4th DCA 1976). The respondent contractors have not invoked Chapter 120 procedures to protect their substantial interests, but rather have elected to submit the controversy to the general equity jurisdiction of the circuit court. The question is whether the law affords respondents that election.

Thus we are led to consider what judicial remedies for allegedly excessive administrative action existed by statute before the 1974 Act, which of those remedies the 1974 Act intended to replace, which of those the 1975 Legislature restored, and what remedies were and are now incident to the constitutional powers of the judiciary, whether or not endorsed by statute.

Judicial Remedies Before the 1974 Act

The 1961 Administrative Procedure Act provided three methods for judicial review of administrative action, two of which were in the circuit courts: First, with an exception not here pertinent, a party affected by an administrative 'rule' was authorized to seek a circuit court declaration pursuant to Chapter 86, Florida Statutes, 'as to the validity, meaning or application of any rule . . ..' Section 120.30(1), Florida Statutes (1973). ³ Second, as an alternative to judicial review by statutes particularly applicable to specified agencies, a party affected by an administrative 'order' was entitled to certiorari review in a district court of appeal of 'final orders of an agency entered in any agency proceeding, or in the exercise of any judicial or quasi-judicial authority,' or to appellate review in the Supreme Court as otherwise provided by statute. Section 120.31(1), Florida Statutes (1973). And third,

'When appropriate, a party may attack an adverse order by mandamus, prohibition or injunction. . . .' Section 120.31(4), Florida Statutes (1973).

Jurisdiction to enjoin administrative action was vested exclusively in the circuit courts. Williams v. Ferrentino, 199 So.2d 504, 513 (Fla.2d DCA 1967). But see Charbonier v. Wynne, 282 So.2d 171, 173 (Fla.2d DCA 1973) (dictum), cert. den., 292 So.2d 18 (Fla.1974), suggesting 'mandamus, prohibition or injunction proceedings may be brought to the District Court of Appeal.'

Judicial interpretation of the terms 'rule' and 'order' as used in the 1961 Act produced rulings that 'quasi-executive or quasi-legislative' administrative action was not reviewable by petition for certiorari in a district court of appeal, Section 120.31, but only by action for an injunction or other relief in a circuit court. Bay Nat'l Bank and Trust Co. v. Dickinson, 229 So.2d 302, 306 (Fla.1st DCA 1969); Dickinson v. Judges of the District Court of Appeal, 282 So.2d 168, 169 (Fla.1973); Bloomfield v. Mayo, 119 So.2d 417 (Fla.1st DCA 1960); DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957); West Flagler Amusement Co., Inc. v. State Racing Comm'n, 122 Fla. 222, 165 So. 64 (1935). See also Levinson, supra n.3, at 628; Note, Rulemaking and Adjudication Under the Florida Administrative Rpocedure Act, 27 U.Fla.L.Rev. 755, 758 n. 25 (1976). Contra, Charbonier, 282 So.2d at 175. ⁴

Judicial Remedies Under the 1974 Act

The 1974 Administrative Procedure Act committed to the district Courts of appeal all judicial power to review agency action '(e)xcept in matters for which judicial review by the supreme Court is provided by law. . . .' Chapter 74--310, Section 1, Laws of Florida; Section 120.68(2), Florida Statutes (Supp.1974). The Act made no reference to circuit court review of administrative orders by proceedings for extraordinary writs, nor to circuit court declarations concerning rules. The 1974 Act thus repealed former Section 120.31(4), which authorized review of administrative orders 'by mandamus, prohibition or injunction,' and evidenced a purpose ⁵ to remove rule disputes from the circuit courts, where declaratory relief had been available under former Section 120.30. The 1974 Act provided that independent hearing officers should determine, subject to review in a district court of appeal, whether a rule invalidly exercises validly delegated legislative authority or exercises invalidly delegated legislative authority. Compare Section 120.30, Florida Statutes (1973), with Section 120.56, Florida Statutes (Supp.1974).

By Section 120.72(1), the 1974 Act gave notice that the judicial remedies it provided were to be regarded as comprehensive and exclusive:

'(I)t is the express intent of the legislature that the provisions of this act shall replace all other provisions in the Florida Statutes, 1973, relating to rulemaking, agency orders, administrative adjudication, or Judicial review . . ..' (emphasis added). Section 120.72(1), Florida Statutes (Supp.1974) and (1975).

Effect of the 1975 Amendment

The ink was scarcely dry on the 1974 codification of Chapter 120, Florida Statutes (Supp.1974) when the 1975 Legislature, by Chapter 75--191, amended Chapter 120 to add Section 120.73:

'Nothing in this chapter shall be construed to repeal...