Opinion
No. 80-866.
April 22, 1981.
Appeal from the State Comptroller.
James O. Murphy, Jr. and William C. Davell of English, McCaughan O'Bryan, Fort Lauderdale, for appellant.
Ira C. Hatch, Jr. of Hatch Fenster, Plantation, for appellee — First Bank of Hollywood Beach.
Walter W. Wood, Asst. General Counsel, Tallahassee, for appellees — Department of Banking and Finance and Gerald A. Lewis, Comptroller.
ORDER RELINQUISHING JURISDICTION
On April 25, 1980, the Honorable Gerald A. Lewis, Comptroller of Florida, in his capacity as head of the Department of Banking and Finance, issued a letter approving a bank name change from "First Bank of Hollywood Beach" to "First Bank of Broward." We deem the letter to be final agency action sufficient to entitle an adversely affected party to judicial review. Krestview Nursing Home v. Department of Health and Rehabilitative Services, 381 So.2d 240 (Fla. 1st DCA 1979); Graham Contracting, Inc. v. Department of General Services, 363 So.2d 809 (Fla. 1st DCA 1978), appeal dismissed, 364 So.2d 892 (Fla. 1978); Capeletti Brothers, Inc. v. Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla. 1979); Harris v. Florida Real Estate Commission, 358 So.2d 1123 (Fla. 1st DCA 1978), cert. denied, 365 So.2d 711 (Fla. 1978). At the same time, we express our concern that the Comptroller's letter of April 25th does not contain findings of fact and conclusions of law separately stated so as to facilitate meaningful appellate review. See Section 120.59(1)(c), Florida Statutes (1979). Prior to the letter's issuance, the Department of Banking and Finance expressly authorized and received written material in opposition to the name change. This process constituted "informal proceedings" pursuant to Section 120.57(2), Florida Statutes (1979), and consequently, the agency's order should have been drawn in compliance with Section 120.59(1). General Development Corp. v. Department of Administration, 353 So.2d 1199 (Fla. 1st DCA 1977).
§ 20.12, Fla. Stat. (1979).
April 25, 1980
Martin J. Hasey, Esq. Hatch and Fenster Attorneys at Law Suite 307 The Gulfstream Building 8751 West Broward Boulevard Plantation, Florida 33324 Dear Mr. Hasey:
Re: First Bank of Hollywood Beach
Your request to change the corporate name of the subject bank to "First Bank of Broward" was noticed in the Florida Administrative Weekly on February 15, 1980. Formal opposition to use of that name was timely filed by H. Eugene Nace, President, First National Bank of Broward County, on March 5, 1980.
After fully considering all the facts, it is my opinion that "First Bank of Broward" is not so similar to "First National Bank of Broward County," or any other bank name, to cause confusion, especially since the present name is already prefaced by "First Bank of." Consequently, the request to change the bank name to "First Bank of Broward" has my approval, subject to submission of appropriate amendment to the bank's Articles of Incorporation.
Staff members in the Division of Banking will contact you to finalize the amendment documents for filing with the Department of State.
Sincerely, /s/ GERALD A. LEWIS
GAL:hmm
cc Board of Directors — First Bank of Hollywood Beach
Leonard L. Levenstein
Federal Deposit Insurance Corporation, Atlanta, Georgia
Miami Area Supervisor
H. Eugene Nace
Legal Division
There is an additional aspect to this case which further justifies our present action. At oral argument the parties stipulated that on November 1, 1980, appellant, First National Bank of Broward County, changed its name to The First Bankers. Ordinarily, a voluntary act of this nature, taken subsequent to the administrative action complained of and after the filing of a notice of appeal, would render the appeal moot. This result is avoided here only because appellant, which is a national bank and not subject to state approval for its own name change, initially advised the Comptroller of a possible name change and urged that appellee's proposed name was too similar to both names. Furthermore, appellant advised the Comptroller that, at least to some degree, it was then using its subsequently adopted name. Appellant's president stated:
[W]e are a wholly owned subsidiary of First Bankers Corporation of Florida and we utilize the generic name, "The First Bankers," which is registered with the U.S. Patent Office.
Despite the foregoing, the record indicates that the Comptroller based his analysis and decision on appellant's then-existing name. Thus, since appellant's new name was not considered by the Comptroller at the time he approved the name change of First Bank of Hollywood Beach to First Bank of Broward and inasmuch as appellant's present name is integrally related to the matters passed upon by the Comptroller and now before this court, we believe the interests of justice require a relinquishment of jurisdiction. It is thereupon,
ORDERED that jurisdiction in this cause is herewith relinquished to the Office of the State Comptroller and the Department of Banking and Finance for a period of sixty (60) days from the rendition of this order so that appellant's present name might be considered in the administrative decision making process. This action does not mandate a formal factfinding proceeding pursuant to Section 120.68(6), Florida Statutes (1979), but does require the Department of Banking and Finance, through appropriate informal proceedings, to take appellant's present name into account. It is further,
See Section 120.57(2), Fla. Stat. (1979).
ORDERED that upon the agency's conclusion of its consideration of this matter, it shall prepare and enter an amended final order in accord with Section 120.59, Florida Statutes (1979), containing "findings of fact and conclusions of law separately stated."
HURLEY, J., and G. KENDALL SHARP, Associate Judge, concur.
MOORE, J., dissents with opinion.
Although I appreciate the reasoning behind the majority's order, I respectfully dissent. I would dismiss this appeal for lack of jurisdiction.
The facts are virtually undisputed. First Bank of Hollywood Beach requested the State Comptroller's permission to change its name to First Bank of Broward. On February 15, 1980, the Comptroller published notice of the request in the Florida Administrative Weekly. The appellant responded to the notice by letter of March 3, 1980, objecting to the name change. In its letter, the appellant stated its reasons for objecting and concluded by stating:
For the reasons set forth above, we would like to register our strong opposition to the proposed name change. Please advise us as to the action taken on this application and the appeal process which we must follow should the name change be approved as requested.
No request was made for either a formal or informal hearing pursuant to Section 120.57, Florida Statutes (1979). By letter of April 25, 1980, the Comptroller granted the name change request "subject to submission of appropriate amendment to the bank's Articles of Incorporation." First National appeals from this letter and the majority apparently considers the letter as final agency action as that phrase is used in Chapter 120, Florida Statutes (1979). I disagree.
First National initially contends that it was misled by the notice contained in the Florida Administrative Weekly. While I find this contention difficult to understand, I also find it to be irrelevant. It was not presented to the Agency which has not had an opportunity to accept or reject it, and, if accepted, to take remedial action. As a reviewing Court, I find nothing to review. Surprisingly, appellant next contends that the agency action is not final. I agree. However, appellant says we should therefore remand this cause for a formal hearing, and the Comptroller agrees. Again, I reiterate that no hearing was ever requested by the appellant and I would adopt Judge Ervin's language in City of Punta Gorda v. Public Emp. Relations, 358 So.2d 81, 82 (Fla. 1st DCA 1978), where he said:
We do not interpret Chapter 120 as requiring an agency to convene an unrequested formal hearing whenever it perceives the possibility of a disputed issue of material fact. Just as a litigant must request trial by jury, so must a substantially affected person affirmatively seek a 120.57(1) hearing.
Having failed to request a hearing, the appellant has waived any right thereto and should not be heard to complain now.
As I view Chapter 120, it provides for appellate review of final agency action when the agency performs a quasi-judicial act. It does not, and should not, under our tripartite system of government, provide for the review of day to day decisions of an executive agency, a category in which I place the matter now before us.
The appellant could have requested a hearing and if that request were denied, we would have jurisdiction to review the denial. If it were granted, we would have jurisdiction to review the decision which would contain findings of fact and conclusions of law. I frankly do not know how we review a letter, and by doing so, we are exceeding our jurisdiction. I would therefore dismiss this appeal.