Title: Judicial Opinions - Administrative law-Appeals-Denial of Application for Permit by Water Management District-Bifurcated Appeal Procedures-Review of Administrative Action by District Court of Appeal Not Prerequisite to Raising of Inverse Condemnation Issue
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Title: Judicial Opinions - Administrative law-Appeals-Denial of Application for Permit by Water Management District-Bifurcated Appeal Procedures-Review of Administrative Action by District Court of Appeal Not Prerequisite to Raising of Inverse Condemnation Issue
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Language: English
Publisher: Judicial and Administrative Research Associates, Inc.
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Judicial Opinions - Administrative law-Appeals-Denial of Application for Permit by Water Management District-Bifurcated Appeal Procedures-Review of Administrative Action by District Court of Appeal Not Prerequisite to Raising of Inverse Condemnation Issue in Circuit Court-Water Management Dist. Action Not Final Agency Action Where Discretionary Review by Land and Water Adjudicatory Commission Sought. (JDV Box 86)
General Note: Box 22, Folder 5 ( Administrative Orders, Dist. Courts of Appeal, Judicial Opinions - 1982 ), Item 6
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Volume ID: VID00001
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Holding Location: Levin College of Law, University of Florida
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Full Text


APA/373 APPet-iLS


JUDICIAL OPINIONS


the Division's filing a future application for an order of
vacation.
(Beranek and Glickstein, JJ., concur.)

*


)/Administrative Law-Appeals-Denial of Application
for Permit by Water Management District-Bifurcated
Appeal Procedures-Review of Administrative Action
by District Court of Appeal Not Prerequisite to
Raising of Inverse Condemnation Issue in Circuit
Court-Water Management District Action Not Final
Agency Action Where Discretionary Review by Land
and Water Adjudicatory Commission Sought
GARY R. GRIFFIN v. ST. JOHNS RIVER WATER MANAGEMENT
DISTRICT. 5th District Case No. 81-1015. February 3, 1982.
Administrative Appeal from the Governing Board of the St. Johns
River Water Management District.
Ross A. McVoy, of Madigan, Parker, Gatlin, Swedmark & Skelding,
for Appellant. Vance W. Kidder, Staff Attorney of St. Johns River
Water Management District, for Appellee.
ON MOTION TO DISMISS
(SHARP, W., J.) Pursuant to Chapter 120 of the Administra-
tive Procedure Act, Griffin appeals the denial of his applica-
tion for a permit by the St. Johns River Water Management
District. In his notice of appeal, Griffin stated that he was
also requesting review of the permit denial by the Governor
and the Cabinet sitting as the Land and Water Adjudicatory
Commission, pursuant to section 373.114, Florida Statutes
(1979); and further, that he would seek review of the agency
action in the circuit court, pursuant to section 373.617,
Florida Statutes (1979).1
Approximately one month after filing his notice of appeal,
Griffin filed a motion to abate this appeal pending the com-
pletion and resolution of the circuit court proceedings. The
St. Johns River Water Management District objected to the
abatement and filed a motion to dismiss the appeal for failure
to "exhaust an administrative remedy" by completing the
administrative appeal at the cabinet level. For the reasons
stated herein, we dismiss this appeal.
In Griffin's behalf we note with concern the complexity of
the provisions in Chapter 373 dealing with appeals. Section
373.617, Florida Statutes (1979) provides:
(2) Any person substantially affected by a final action of
any agency with respect to a permit may seek review
within 90 days of the rendering of such decision and re-
quest monetary damages and other relief in the circuit
court in the judicial circuit in which the affected property
is located; however, circuit court review shall be confined
solely to determining whether final agency action is an
unreasonable exercise of the state's police power constituting
a taking without just compensation. Review of final agency
action for the purpose of determining whether the action is
in accordance with existing statutes or rules based on
competent substantial evidence shall proceed in accordance
with Chapter 120. (Emphasis supplied).
Further, section 373.114 provides:
The Governor and cabinet, sitting as the Land and Water
Adjudicatory Commission, shall have the exclusive power by
a vote of four of the members to review, and may rescind
or modify, any rule or order, of a water management district,
except those rules which involve only the internal manage-
ment of the water management district, to insure complian
with the provisions and purposes of this chapter .... Such


request for review is not a precondition to the effective-
ness of such rule or order, or to the seeking of judicial
review as provided in 373.133 and 120.68. (Emphasis
supplied).
Some case law apparently indicates that pursuit of Chap-
ter 120 review in the District Court of Appeal is a pre-
requisite to being able to raise the "inverse condemnation"
or "taking" issue in the cir uit court. Key Haven Associ-
ated Enterprises, Inc. v. Board of Trustees of the Internal
Improvement Trust Fund, 400 So.2d 66 (Fla. 1st DCA
1981); Albrecht v. State, No. 79-2234 (Fla. 2d DCA,
March 25, 1981) [1981 F.L.W. 724], modified on rehearing,
(Fla. 2d DCA, December 11, 1981) [1981 F.L.W. 2600];
Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979).
Some courts have also held that an issue, like "unjust
taking" of property, must be raised in the Chapter 120
appeal before it can be raised in the circuit court. Coulter.
However, none of these cases consider the later applicable
statutes, section 253.763 or section 373.617.
In view of the statutes and the case law, we understand
why appellant felt it was necessary to protect his rights
by pursuing all three avenues of appeal simultaneously.
SHowever, our interpretation of the statutes makes this
unnecessary. The Legislature has the power and discre-
tion to-provide the mechanism for judicial review of adminis-
trative agency action. So long as one adequate method is
established, due process does not require that the courts
provide another, and the statutory method should be fol-
lowed. Fla. Welding & Erection Service, Inc. v. American
Mutual Ins. Co., 285 So.2d 386 (Fla. 1973).
Section 373.617(2) clearly sets up a bifurcated appeal
procedure, both avenues of which must be pursued simul-
taneously because of the time deadlines. If the aggrieved
party wants to appeal issues dealing with whether the
agency followed the statutes or rules or acted on compe-
tent substantial evidence, it must perfect its appeal in
accordance with section 120.68. If it claims the agency
action constitutes an "unconstitutional taking" of prop-
erty, it must file an action in the circuit court, pursuant
to section 373.617(2). There the circuit court can fully
litigate de novo this issue and prepare a complete record.3
After the circuit court has rendered its final decision on
the "taking" issue, either side can then seek appellate re-
view in the District Court of Appeal under Rule 9.030
(b)(1)(A).
We reject the concept that the "taking" issue should
first be raised and determined in the District Courts of
Appeal under this statute. If that was done, at worst it
would bar consideration of this issue by the circuit court
on principles of res judicata thereby defeating the bifur-
cated appeal provision of section 373.617(2), and at best
it would result in an "administrative morass" of undue
proportions.4 Therefore, we conclude that the portion of
this appeal dealing with the "taking issue" should be dis-
missed without prejudice to appeal from the circuit court
after conclusion of its efforts under section 373.617
(2).
The balance of the issues sought to be appealed pur-
suant to chapter 120 would now be appropriate for review
by this Court, had appellant not sought discretionary review
by the Land and Water Adjudicatory Commission, pursuant
to section 373.114. Since the Commission may modify or
rescind the action of the Water Management District, it


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JUDICIAL OPINIONS


cannot be considered (as yet) "final" agency action. See
School Board v. Noble, 372 So.2d 1111 (Fla. 1979). Final
disposition by the Commission must occur before this court
will have jurisdiction pursuant to Rules 9.110(aX2) and
9.030(bX1XC) and section 120.68. Brooks v. School Board,
382 So.2d 422 (Fla. 5th DCA 1980).
Griffin's appeal to the Commission will toll the time for
seeking judicial review in this court, pursuant to Chapter
120.5 Therefore, we dismiss this appeal without prejudice
to refile it within the time required by Chapter 120, upon
final disposition of the discretionary appeal by the Commis-
sion. However, if that time has run prior to the issuance of
this opinion, we will entertain a petition to reinstate the
Chapter 120 appeal and treat it as prematurely filed but subse-
quently matured. See Williams v. State, 324 So.2d 74 (Fla.
1975).
APPEAL DISMISSED. (Orfinger and Cobb, JJ., concur.)

1. The parties indicate that both courses of appeal have in fact
been pursued.
2. Johnson v. McNeill, 151 Fla. 606, 10 So.2d 143 (1942).
3. The lack of a complete record on the taking issue in a Chapter
120 review of an agency action by the District Court of Appeal was a
problem. Since administrative agencies are not supposed to decide
constitutional issues, (Pickerill v. Schott, 66 So.2d 716 (Fla. 1951)) the
agency may not have heard testimony on that issue, and the District
Courts of Appeal are not set up to take testimony, even though Chap-
ter 120 provides for a wealth of remand and review possibilities.
4. Key Haven Associated Enterprises, Inc. v. Board of Trustees,
400 So.2d 66 (Fla. 1st DCA 1981) (Booth, J., dissenting); Rice v.
Department of Health and Rehabilitative Services, 386 So.2d 845 (Fla.
1st DCA 1980) (Booth, J., dissenting).
5. Phillips v. Santa Fe Community College, 342 So.2d 108 (Fla.
1st DCA), appeal dismissed, 345 So.2d 426 (1977); Peterson v. State
Dcp't. of Environmental Regulation, 350 So.2d 544 (Fla. 1st DCA
1977).






Torts-Municipal Corporations-Workers' Compensa-
tion Immunity-Employer City May Not Be Required
to Indemnify City Employee for Tort Judgment
in Action Brought Against Employee by Another City
Employee


CITY OF MIAMI v. WILLIAM EVERETT MARCH and CARLA
MARCH, his wife, and LUIS MANUEL LOPEZ. 3d District. Case
Nos. 80-602, 80-927 & 80-928.February 2, 1982. Appeals from the
Circuit Court for Dade County. Herin, Judge.
George F. Knox, Jr., City Attorney and Mikele S. Carter, Assistant
City Attorney, for appellant. Horton, Perse & Ginsberg and Edward
A. Perse; George Vogelsang, for appellees.

(PER CURIAM.) The City of Miami appeals from an adverse
declaratory judgment entered below ordering it to indemnify
two of its employees held liable on a tort judgment. The
employees sued each other for simple negligence based on an
automobile accident arising out of and in the course of their
employment with the City of Miami as police officers.1 The
employees had duly received worker's compensation benefits
from the City of Miami on said accident. Neither employee
Sued, and admittedly could not have sued, the City of Miami
in this negligence action as same was barred by the City's


rn S


worker's compensation immunity. Sec. 440.11(1), FlaStat.
(1977). The employees, instead, chose litigation choice No.
3 as stated in District School Board of Lake County v.
Talmadge, 381 So.2d 698, 703 (Fla. 1980), to wit: a suit
against the other "employee alone, without invoking section
768.28, under traditional legal principles regarding tort
actions against public employees," Id. at 703, and rejected
litigation choices No. 1 and No. 2 under Talmadge, supra,
which would have made the City a party defendant in the
action under Section 768.28, Florida Statutes (1979). As
the City of Miami was not and could not be a party to
this action, it plainly follows that it cannot be held liable
on the judgment entered in the action. See also Seaboard
Coastline R. Co. v. Smith, 359 So.2d 427 (Fla. 1978).
We, accordingly, reverse the declaratory judgment under
review and remand to the trial court with directions to
enter a declaratory judgment stating that the City of
Miami has no legal obligation to pay on the tort judgment
entered against the said employees in this cause. We, also,
reverse the order of equitable distribution entered in this
cause and under review by this appeal, as the City of
Miami was not entitled to any worker's compensation
distribution payment herein. We, also, dismiss the appeal
by the City of Miami as to the tort judgment entered in
this cause as the City had no standing to appeal said judg-
ment.
Reversed and remanded. Hubbart, C.J., and Schwartz
and Jorgenson, JJ., Concur.)

1. Parenthetically, it should be noted that this suit could not
be brought in the future as Section 440.11(1), Florida Statutes
(1977)-the statute applicable to the accident in this cause-was
amended effective July 1, 1979, to give worker's compensation
immunity "to each employee of the employer when such employee
is acting in furtherance of the employer's business and the injured
employee is entitled to receive benefits under this chapter."
Sec. 440.11(1), FlaStat. (1979). This amendment, however,
applies only to claims for injury arising out of accidents occurring
on or after July 1, 1979. Ch. 79-40, sec. 127, Laws of Fla. As
the acicdent in the instant case occurred prior to July 1, 1979,
the amendment was inapplicable to the instant case and the suit
herein was properly entertained in the trial court.


Legislation-Appropriations-Provision of Appropria-
tions Act Which Would Deny Appropriated Funds
to Postsecondary Educational Institutions That
Charter, Give Official Recognition, Assist, or Provide
Meeting Facilities to Organizations Advocating
Sexual Relations Between Persons Not Married to
Each Other-Provision Unconstitutional-Standing
to Challenge Constitutionality
Department of Education, State Board of Education, Ralph D.
Turlington, as Commissioner of Education and as citizen and tax-
payer, and Talbot D'Alemberte, a citizen and taxpayer, Appellants,
v. Gerald A. Lewis, Comptroller, and George Firestone, Secretary of
State, Appellees. Supreme Court of Florida. Case No. 61,241.
February 4, 1982. Direct Appeal of Judgment of Trial Court, in
and for Leon County. Rudd, Judge. Certified by the District Court
of Appeal, First District.
Judith A. Brechner, Acting General Counsel, State Board of Educa-
tion, Tallahassee; and Chesterfield Smith and John Radey of Holland
and Knight, Tallahassee, for Department of Education, State Board
of Education and Ralph D. Turlington; and Talbot D'Alemberte and
Thomas R. Julin of Steel, Hector and Davis, Miami, for Talbot
D'Alemberte, Appellants. Michael J. Coniglio, Deputy Comptroller
and Michael Basiler, General Counsel, Office of the Comptroller,
Tallahassee, Florida, for Gerald A. Lewis; and Jim Smith, Attorney


2/22/82


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