Florida Water Services Corp. v. Robinson

856 So. 2d 1035, 2003 Fla. App. LEXIS 11784, 2003 WL 21817929
CourtDistrict Court of Appeal of Florida
DecidedAugust 8, 2003
Docket5D02-2071
StatusPublished
Cited by4 cases

This text of 856 So. 2d 1035 (Florida Water Services Corp. v. Robinson) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Water Services Corp. v. Robinson, 856 So. 2d 1035, 2003 Fla. App. LEXIS 11784, 2003 WL 21817929 (Fla. Ct. App. 2003).

Opinion

856 So.2d 1035 (2003)

FLORIDA WATER SERVICES CORPORATION, Appellant,
v.
Hannah M. "Nancy" ROBINSON, etc., et al., Appellees.

No. 5D02-2071.

District Court of Appeal of Florida, Fifth District.

August 8, 2003.
Rehearing Denied October 14, 2003.

*1036 Joseph M. Mason, Jr., of McGee & Mason, P.A., Brooksville, for Appellant.

Garth C. Coller, County Attorney, and Kurt E. Hitzemann, Senior Assistant County Attorney, Brooksville, for Appellees, Hannah M. "Nancy" Robinson, et al.

William S. Bilenky, General Counsel, and Margaret Lytle, Assistant General Counsel, Brooksville, for Intervenor/Appellee Southwest Florida Water Management District, etc.

SHARP, W., J.

Florida Water Services Corporation appeals from a final judgment which denied its petition for a writ of prohibition and dismissed its complaint against the Board of Commissioners of Hernando County.[1] Florida Water had petitioned the circuit court to issue a writ of prohibition directing the Board to recuse itself from further consideration of Florida Waters' applications for permits to drill new wells. We conclude Florida Water has failed to demonstrate entitlement to the relief it seeks and accordingly affirm.

Florida Water is a public utility which operates waste water treatment and water supply utility systems in various counties throughout Florida, including Hernando County. Florida Water serves about 7,000 waste-water treatment customers and 28,000 water supply customers in its Hernando County service area. The Board owns and operates waste water treatment and water supply systems in areas of Hernando County not served by Florida Water.

Florida Water and the Board apparently have had a contentious relationship for several years. At one time, Florida Water Services had been regulated by the Florida Public Service Commission. After utility customers in Hernando County complained they were being forced to subsidize Florida Water's less profitable systems, the Board assumed regulatory authority.

*1037 In 2001, Florida Water entered into negotiations with the Florida Governmental Utility Authority to sell all its systems to the Authority. The Authority in turn planned to sell the systems to the county in which each system is located.

At Board meetings on February 6, 2002 and March 6, 2002, the Board voted to deny Florida Water's applications to sink three new wells. On March 14, 2002, Florida Water filed a motion for rehearing and recusal and demand for an administrative hearing. Florida Water alleged Hernando County was no longer interested in purchasing Florida Water's assets from the Authority and instead intended to acquire those systems through eminent domain. Florida Water claimed the Board had an interest in depressing the value of its assets by denying permits for new wells.

At the Board's April 2, 2002 meeting, Florida Water requested the entire Board recuse itself from considering Florida Water's well applications. Florida Water conceded individual commissioners may not have a personal financial conflict but argued the Board's interest in condemning Florida Water's assets created an "institutional" conflict. Florida Water proposed that Commissioners be appointed by the Governor on an ad litem basis to review its well applications or the matter be referred for an administrative hearing.

After the Board denied Florida Water's request, Florida Water petitioned the circuit court for a writ prohibiting the Board from entering any further orders on its applications and directing the Board to recuse itself. The circuit court denied Florida Water's request for a writ of prohibition.

The writ of prohibition is an extraordinary writ extremely narrow in scope and operation by which a superior court, having appellate and supervisory jurisdiction over an inferior court or tribunal, may prevent that court or tribunal from exceeding its jurisdiction or usurping jurisdiction over matters not within its jurisdiction. It will be invoked only in emergency cases to forestall an impending injury where no other appropriate and adequate legal remedy exists and only when damage is likely to follow.

Prohibition therefore may generally be granted only when it is shown the lower tribunal is without jurisdiction or is attempting to act in excess of its jurisdiction. It will not lie to prevent the mere erroneous exercise of jurisdiction by an inferior tribunal. T.D.B. v. Kirk, 468 So.2d 234 (Fla. 5th DCA 1984); Lawrence v. Orange County, 404 So.2d 421 (Fla. 5th DCA 1981); School Board of Marion County v. Angel, 404 So.2d 359 (Fla. 5th DCA 1981).

On appeal, Florida Water argues Florida's Administrative Procedure Act (APA) mandates recusal of the Board and thus it was entitled to a writ prohibiting the Board from taking any further action on its well applications. The APA provides for the disqualification of an "agency" head for bias, prejudice or interest. § 120.665, Fla. Stat.[2] The definition of *1038 "agency" includes counties and municipalities but only to the extent they are expressly made subject to the APA by general or special law or existing judicial decisions. § 120.52(1)(c), Fla. Stat.

Historically, the APA has never applied to the actions of county commissions. Hill v. Monroe County, 581 So.2d 225 (Fla. 3d DCA 1991) (chapter 120 does not apply to the regulations enacted by a county commission unless the county is expressly made subject to the chapter by general or special law); Board of County Commissioners of Hillsborough County v. Casa Development, Ltd., 332 So.2d 651 (Fla. 2d DCA 1976) (board of county commissioners is not an agency covered by the APA); Sweetwater Utility Corp. v. Hillsborough County, 314 So.2d 194 (Fla. 2d DCA 1975) (board of county commissioners is not an agency subject to judicial review under APA). Nor do we find anything in the revisions of the definition of "agency" to indicate the Legislature has changed the scope of the APA's applications to counties. See Ch. 96-159, § 3; Ch. 99-245, § 64; Ch. 99-379, § 2, Laws of Fla.

Even if not subject to the APA, Florida Water argues the Board must disqualify itself from further participation in these proceedings under common law principles regarding recusal of judges. Florida Water concedes neither section 38.10[3] nor rule 2.160[4], which govern disqualification *1039 of trial judges, strictly applies to these quasi-judicial proceedings—their ambit being judicial proceedings. Nonetheless, Florida Water argues these principles should apply when the Board exercises quasi-judicial authority.

In Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469 (Fla.1993), the Florida Supreme Court explained the character of the hearing determines whether the action of a county commission board is legislative or quasi-judicial. Generally speaking, legislative action results in the formulation of a general rule of policy whereas judicial action results in the application of a general rule of policy. In the context of rezoning, comprehensive rezonings which affect a large portion of the public are legislative determinations. However, rezonings which impact a limited number of persons and in which the decision is contingent upon evidence presented at a hearing are quasi-judicial proceedings. Martin County v. Yusem, 690 So.2d 1288 (Fla.1997); Snyder.

This distinction is important for, among other reasons, the method of review.

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856 So. 2d 1035, 2003 Fla. App. LEXIS 11784, 2003 WL 21817929, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-water-services-corp-v-robinson-fladistctapp-2003.