Opinion
No. C-491.
June 7, 1962. Rehearing Denied July 2, 1962.
Appeal from the Circuit Court, Duval County, A.W. Graessle, Jr., J.
Richard W. Ervin, Atty. Gen., Robert C. Parker, Asst. Atty. Gen., and Jones Harrell, Pensacola, for appellants.
Norman F. Solomon and Howard A. Rose, Miami Beach, and Larkin, Lewis Decker, Jacksonville, for appellee.
The respondent board has appealed from an order entered by the Circuit Court for Duval County issuing a peremptory writ of mandamus commanding that the board execute and furnish to the petitioner a certificate as a sanitarian pursuant to Section 491.07, Florida Statutes, F.S.A.
That section reads as follows:
"491.07 Registration of certain persons prior to October 1, 1959. — The board shall register as a sanitarian and shall furnish certificate of registration for the year 1959, to any person who applies for such registration on or before October 1, 1959, and who, on June 30, 1959, is employed as a sanitarian and meets the qualifications for a sanitarian, as set forth by one of the following:
"(1) (a) Two years of college (15 units in basic sciences) plus one year experience in environmental sanitation,
"(b) Two years of college (15 units in basic sciences) plus special training course for sanitarians plus six months experience in environmental sanitation,
"(c) College graduate in science or engineering plus one year of experience in environmental sanitation or a special training course,
"(d) A bachelor's degree or a master of public health degree in sanitation from an approved school of public health,
"(e) High school graduate plus three years experience in environmental sanitation plus special training course in sanitation,
"(f) High school graduate plus four years experience in environmental sanitation or
"(2) The merit system, or
"(3) An accredited civil service board of Florida.
"At the time of making application, such applicant shall pay to the board a fee of ten dollars."
Other statutory provisions that are pertinent to the present consideration are the following:
"491.02 Definitions.
"In this act, unless the context otherwise requires:
(1) 'Sanitarian' means a person whose education and experience in the biological and sanitary sciences qualifies him to engage in the promotion and protection of the public's health. He applies technical knowledge to solve problems of a sanitary nature and develops methods and carries out procedures for the control of those factors of man's environment which affect his health, safety, and well being.
* * * * * *
"(4) 'Environmental sanitation' means the sanitary control of man's physical surroundings and within it those factors which may adversely influence and affect his health, safety and welfare. Nothing herein shall conflict with the practice of professional engineering or the provisions of chapter 20621, Laws of 1941 (§§ 471.01-471.33)."
Section 491.04(3) reads:
"(3) It shall be the duty of this board to carry out the provisions of this Act, except appoint members thereto, review applications for registration, conduct written and oral examinations, keep records of its transactions, conduct hearings, make an annual and financial report and record all matters which appropriately may come before it. These records shall at reasonable times be open to examination by the public. Copies of the annual and financial reports shall be mailed to all registered sanitarians. Laws 1959, c. 59-191, § 4."
Pursuant to the last-quoted statute, then, the board is charged with the duty of reviewing applications for registration, conducting written and oral examinations, conducting hearings, and keeping records of its proceedings. There can be no legal question of the power of the state legislature to impose this duty upon, and grant this authority to, the board, and the appellee has raised no such question on this appeal.
The evidence adduced before the Circuit Court shows that the petitioner graduated from the University of Florida in 1949 with the degree of B.S.A. in entomology, and then took professional post-graduate work at the University of Miami. After graduating he was engaged for some ten years as the owner and operator of a business in pest control work of all kinds and as a consultant in the field of environmental sanitation. At all times since his graduation he has operated his own company and has never been a full-time employee of any company. His pest control work is related to household pests of all kinds, including rodents, roaches, ants, and other pests. He provided sanitation services to manufacturers of insecticides and disinfectants.
Based upon the above evidence the Circuit Court found that the petitioner possesses the requisite qualifications for registration as a sanitarian as set forth in Section 491.07(1), that he meets the requisite of formal education and practical training requirements in Chapter 491, and that his experience and training fit the above statutory definition of "sanitarian."
The board contends, however, that the petitioner was not entitled to a certificate of registration because he failed to prove that "on June 30, 1959" he was "employed as a sanitarian," as required by Section 491.07, because he was not on that date employed as a sanitarian by any group, organization, or corporation, but was self-employed. The board further contends that the petitioner failed to prove that his training and experience had been of an extensive nature and covered all of the five fields of sanitation enumerated in Section 491.09 as the fields on which examinations are to be given to applicants for a certificate of registration, (that is, sanitary laws, codes, rules and regulations; milk and food sanitation; water supply, sewage and garbage disposal; insect and pest control; bacteriology and communicable diseases.) To this contention the petitioner responds that he is not seeking to take an examination. We need not here pass upon the validity of the mentioned contentions.
Section 491.07, Florida Statutes, F.S.A., constitutes what is commonly called a "grandfather" provision.
Whether or not we agree with the Circuit Court's interpretation of the statutes and evidence, is immaterial, because we believe that the Florida Legislature has placed upon the board the duty of initially determining the qualifications of applicants under the grandfather provision. The board has the duty to "review applications for registration" and "conduct hearings" under Section 491.04(3). The members of the board are no doubt peculiarly competent to determine the scope and nature of training in the highly specialized field of sanitation. While many courts across the nation have watched dubiously the recent encroachments of legislature — established administrative agencies in the field of fact-determination, we think that the concept of the rule of law requires us to acknowledge that this is a matter for the legislative, not the judicial, branch of the government to determine. Nonetheless, the courts must always retain their power to review judicially the findings made by such agencies.
As we construe the provisions of Chapter 491, the board has the power and duty to conduct a hearing on the petitioner's application for a certificate of registration under the grandfather provision and to make a record of such proceedings. Thus the petitioner would no doubt have a right to a judicial appellate review by seeking a writ of certiorari directed to the board's decision and based upon the record of the proceedings, in which the petitioner would be able to raise the same points that he does in this mandamus proceeding.
Before an applicant is entitled to a certificate of registration under the above grandfather provision, all of the following facts must be found by the appropriate factfinding body: (1) that the applicant applied for the 1959 certificate on or before October 1, 1959; (2) that he was on June 30, 1959, employed as a sanitarian; (3) that he meets the qualifications set forth by Subsection (1), (2), or (3) in Section 491.07; (4) that on June 30, 1959, he was employed as a person whose education and experience in the biological and sanitary sciences qualifies him to engage in the promotion and protection of the public's health; and (5) that he was on June 30, 1959, employed as a person who applies technical knowledge to solve problems of a sanitary nature and develops methods and carries out procedures for the control of those factors of man's environment which affect his health, safety, and well being.
The crux of the present appeal is the application of the firmly-established rule that mandamus is not the proper remedy where the acts commanded concern not a ministerial duty but involves judicial discretion to a certain extent. State ex rel. Trustee Realty Co. v. Atkinson, 97 Fla. 1032, 122 So. 794 (1929); Gamble v. State, 61 Fla. 233, 54 So. 370 (1911). When the person against whom mandamus is prayed is invested with judicial power, or acts in a deliberative capacity, or has the power and right of deciding, the writ of mandamus will not lie, except to compel him to proceed to the discharge of his duties according to the best of his judgment. Towle v. State ex rel. Fisher, 3 Fla. 202 (1850).
The crucial decision as to whether the board's duty in the premises is judicial or legislative in nature, is fraught with difficulty for the reason that good authority can be invoked to support either conclusion. For instance, in York v. State ex rel. Schwaid, 152 Fla. 285, 10 So.2d 813 (1943), the Supreme Court of Florida held that a peremptory writ of mandamus was properly issued to require the State Board of Dental Examiners to issue a certificate to practice dentistry. In State ex rel. Florida Industrial Commission v. Willis, Fla.App., 124 So.2d 48 (1960) the majority of this court held that mandamus lies where an administrative agency arbitrarily refuses to give consideration to an application for a refund of taxes. On the other hand, the general rule, which we think perfectly fits the situation here, is stated in 21 Fla.Jur., Mandamus, Sec. 61, page 375, as follows:
"Boards and officers charged with the duty or power of issuing the license or permit usually exercise a discretionary function in the matter. Their determination involves a judgment as to the right and fitness of the applicant, and generally calls for an examination of evidence and the passing upon questions of fact. Where such is the case, courts will not interfere with their judgment or discretion, unless there is an arbitrary abuse of the power vested in the respondent, amounting to a virtual refusal to perform the duty involved or to act at all in contemplation of law."
In Hunter v. Solomon, 75 So.2d 803 (1954), the Supreme Court of Florida held:
"Mandamus in proper cases may be used to compel a public agency to exercise a discretion vested in it but generally it cannot be used to direct the public agency to act only in a certain manner. This is especially true when investigation and a determination of qualifications of the applicant is involved and the determination of qualifications is vested in such public agency."
In view of these divergent authorities it is understandable how the Circuit Court reached its conclusion that mandamus is the proper remedy.
This problem is rendered more difficult by the holding in at least one jurisdiction that, unlike the granting of a certificate of convenience and necessity in the ordinary case, when a carrier seeks a certificate as an existing carrier under a grandfather provision, and complies with the statutory requirements, the commission has no discretion to deny the certificate, but its duties and powers are ministerial and mandatory. See 60 C.J.S. Motor Vehicles § 85, page 278, and Railroad Commission of Texas v. Rau, 45 S.W.2d 413 (Tex.Civ.App. 1931), error dismissed.
The majority of this court, however, although recognizing the above conflict of authorities, is of the opinion that the duty of the board here is essentially judicial or quasi-judicial, rather than legislative or administrative.
In accordance with what we conceive to be the applicable principles, we hold that mandamus does not lie in the instant case. The duty of reviewing applications for certificates of registration and of determining applicants' qualifications for such certificates is essentially a judicial duty, and mandamus does not lie to command the performance of that duty in a particular manner, as the Circuit Court attempted to do through the peremptory writ before us.
The order appealed from is reversed, and the cause is remanded with directions to discharge the peremptory writ.
Reversed and remanded with directions.
STURGIS, J., concurs specially.
WIGGINTON, J., dissents.
I concur in the conclusion stated by CARROLL, DONALD, K., C.J., and wish to emphasize that in my opinion reversal is required solely because under the law and the facts there was an area for the exercise by the Sanitarians' Registration Board of quasi-judicial powers which, thus far, it has neither attempted nor been called on to exercise, that is, to pass on the question of whether the applicant possessed the technical qualifications entitling him to registration, which is an essential factor under the grandfather provisions of the act. The mere submission of an application for registration, no matter on whose form it is prepared, does not suffice.
In this case the petitioner (appellee) takes the position that the respondent (appellant) was in duty bound to register him on the basis of an application which, as I interpret its content, does not contain a showing sufficient to meet the statutory requirements for registration without technical examination. He does not allege that he has applied for and been denied such examination, but predicates his right to mandamus on the fact that the respondent has not granted registration on the basis of the data contained within the four corners of the application.
It is well settled, of course, that mandamus lies to coerce action of a purely ministerial character and, in a very limited field, to compel the exercise of quasi-judicial acts in a manner conformable to law. Dade County v. State ex rel. Greenberg (Fla.), 126 So.2d 147; State ex rel. Topp v. Board of Electrical Examiners for Jacksonville Beach (Fla.App.), 101 So.2d 583. The first situation develops, for example, where a statute entitles a person to be registered as qualified to follow a particular occupation, without necessity for examination or investigation by a body created for the purpose and having discretionary power in the premises, upon a showing of factors sufficient within themselves to establish the right. The second situation arises in cases where, for example, an agency clothed with quasi-judicial power has abused it to the extent that the party entitled is arbitrarily deprived of his rights.
I am unable to agree with the majority of this court that mandamus was not the proper remedy to secure the relief sought by the petitioner appellee in this case. The majority holding is bottomed upon the premise that the act of issuing a certificate of registration by the Sanitarian's Board under the Grandfather Clause of the Act creating it involved the exercise of discretionary powers conferred by the Act which mandamus cannot control.
From a review of the Act itself, the salient provisions which are set forth in the majority opinion, a person desiring to secure a certificate of registration must demonstrate that he possesses the qualifications called for under the terms of the provisions of the Act. The Board is authorized, and in fact required, to issue certificates of registration under either one of two separate sets of circumstances. If an applicant qualifies for a certificate of registration under the Grandfather Clause of the Act, he is not required to take an examination, but upon producing evidence that he possesses the qualifications specified in the Grandfather Clause of the Act, the Board is required to issue the certificate as a matter of course. If the applicant cannot qualify for a certificate under the Grandfather Clause of the statute, he must then submit to and pass an examination to be conducted by the Board designed to demonstrate his qualifications to engage in business as a sanitarian. It is my interpretation of the act that the duty of the Board to issue a certificate of registration under the Grandfather Clause of the statute is a ministerial duty in which the Board is vested with no discretionary powers. It is only when the applicant is required to submit to an examination for the purpose of demonstrating his qualifications that the Board acts in a quasi-judicial capacity, and is vested with a broad discretion in determining whether the applicant is sufficiently qualified to entitle him to the certificate he seeks.
In the Greenberg case a petitioner in mandamus sought a peremptory writ coercing the County to issue to him a certificate of competency as an electrician. The Act there directed the issuance of such certificate to anyone possessing the minimum requirements set forth in the Grandfather Clause of the Act. The Board was called upon to consider the application, the proof submitted in support thereof, and to satisfy itself that the applicant possessed the minimum qualifications specified. The County, upon investigation, did not consider that the applicant possessed the necessary qualifications and therefore rejected his application for certificate. The court held that the County's duties were ministerial rather than discretionary, and that the proof was adequate to show that the applicant relator possessed the necessary qualifications to entitle him to the certificate. It was held that mandamus was the proper remedy, and the court reversed the trial court's judgment of dismissal and directed that the peremptory writ issue. Review of the District Court's decision was sought in the Supreme Court by certiorari on the conflicts question, but was affirmed and certiorari denied.
State ex rel. Greenberg v. Dade County, (Fla.App. 1960), 120 So.2d 625; Dade County v. State ex rel. Greenberg, (Fla. 1961), 126 So.2d 147.
Even should it be conceded, as held by the majority opinion, that the issuance of a certificate under the Grandfather Clause of the Act involved the exercise of a discretion by the Board, mandamus would nevertheless be the appropriate remedy to coerce the issuance of the certificate if it can be shown that the Board's refusal was arbitrary, capricious or constituted an abuse of discretion. That was exactly the situation that was present in the Topp case which this court reviewed on appeal. In Topp an applicant sought by mandamus to coerce the respondent Board of Electrical Examiners to issue to him a certificate of competency as an electrician. The petition contended that the applicant had taken and actually passed the examination required of him under the terms of the Act, but that the Board had capriciously and wilfully failed to pass him. It was contended that in doing so the Board abused its discretion and peremptory writ was prayed requiring the Board to issue the certificate applied for. On issue joined by the return to alternative writ, testimony was taken from which the chancellor concluded that the petitioner had failed to demonstrate that the Board had acted wilfully and capriciously in grading his examination paper or had in any other manner abused its discretion. The trial court denied the peremptory writ and dismissed the petition. In affirming the trial court we held that mandamus was a proper remedy to procure the relief sought by the alternative writ, but that petitioner had failed to carry the burden of proving an abuse of discretion.
State ex rel. Topp v. Board of Electrical Examiners for Jacksonville Beach, Fla. App., 101 So.2d 583.
In the case we now review the chancellor found from the evidence that petitioner Solomon possessed the requisite qualifications entitling him to issuance of a certificate of registration under the Grandfather Clause of the Act. Upon this finding alone the duty of the Board to issue the certificate is ministerial in character and does not involve the performance of a quasi-judicial act in which the Board is vested with a latitude of discretion within the purview of the Greenberg case cited above. If it is to be held that the Board's action in denying petitioner the certificate of registration was the performance of a quasi-judicial act in which the Board is vested with a discretion, implicit in the trial court's judgment is the conclusion that the Board abused its discretion for which relief was afforded by the issuance of the peremptory writ. Under this view of the case the relief granted by mandamus is in accordance with the procedure approved by this court in the Topp case. It is my conviction that the majority holding with which I am unable to agree does not accord either with the decision rendered in Greenberg by the Third District Court of Appeal or by the decision in Topp rendered by this court. For these reasons I would affirm the judgment appealed.