From Casetext: Smarter Legal Research

Bieley v. Brown

District Court of Appeal of Florida, Third District
Nov 25, 1964
168 So. 2d 552 (Fla. Dist. Ct. App. 1964)

Summary

interpreting the Administrative Procedure Act

Summary of this case from State v. Churchwell

Opinion

No. 64-332.

November 3, 1964. Rehearing Denied November 25, 1964.

Appeal from the Circuit Court of Dade County, Thomas E. Lee, Jr., J.

Pallot, Marks, Lundeen, Poppell Horwich, Miami, for appellant.

Lawrence Kanzer, Miami, for appellees.

Before BARKDULL, C.J., and CARROLL and HORTON, JJ.


The appellant, a practicing lawyer, instituted a chancery suit seeking to enjoin the appellee, Leonard P. Cardone [as a Deputy Industrial Commissioner], from hearing any further cases in which the appellant represented claimants before the Florida Industrial Commission. The other appellees were joined as the Florida Industrial Commission. The chancellor dismissed the original complaint, denying a temporary injunction, and subsequently dismissed an amended complaint with prejudice.

The appellees moved to dismiss the amended complaint for failure to state a cause of action and on the ground the court lacked jurisdiction over the subject matter.

The plaintiff was attempting to secure a blanket disqualification of a Deputy Industrial Commissioner from hearing any further claims in which he represented a claimant. It appears his action was improperly founded in two respects. Pursuant to the provisions of § 120.09, Fla. Stat., F.S.A. [commonly known as the Administrative Procedures Act], the correct method for seeking the disqualification of an administrative hearing officer is in accordance with the procedures available by statute for seeking the disqualification of a circuit judge, to wit: § 38.10, Fla. Stat., F.S.A. We recognize that the reference to § 38.10, Fla. Stat., F.S.A., is contained only in subsection (1) of § 120.09, Fla. Stat., F.S.A., but an examination of the original title to this act clearly indicates the Legislative intent to make this method of disqualification available to appointed commissioners as well as to elected commissioners. See: Curry v. Lehman, 55 Fla. 847, 47 So. 18. Therefore, the method for seeking the disqualification of the appellee, Cardone, would be to follow the provisions of § 38.10, Fla. Stat., F.S.A., and if he refused to recuse himself to seek appropriate review before the full Commission and the Supreme Court of Florida, which are the supervisory bodies of rulings made by Deputy Industrial Commissioners. See: §§ 440.25, 440.27, Fla. Stat., F.S.A.

Ch. 26854, General Laws of Florida 1951.

The plaintiff's attack was further in error in that it sought a blanket disqualification of the Deputy Industrial Commissioners from "any cases" wherein the appellant represented claimants. This clearly is erroneous under Florida law. See: Ginsberg v. Holt, Fla. 1956, 86 So.2d 650.

Therefore, for the reasons stated, the final decree of dismissal here under review is hereby affirmed.

Affirmed.


Summaries of

Bieley v. Brown

District Court of Appeal of Florida, Third District
Nov 25, 1964
168 So. 2d 552 (Fla. Dist. Ct. App. 1964)

interpreting the Administrative Procedure Act

Summary of this case from State v. Churchwell
Case details for

Bieley v. Brown

Case Details

Full title:ALFRED D. BIELEY, APPELLANT, v. A. WORLEY BROWN, WALTER L. LIGHTSEY AND…

Court:District Court of Appeal of Florida, Third District

Date published: Nov 25, 1964

Citations

168 So. 2d 552 (Fla. Dist. Ct. App. 1964)

Citing Cases

State v. Churchwell

F.S.A. § 475.44. See also Bieley v. Brown, Fla.App. 1964. 168 So.2d 552 (interpreting the Administrative…

State Allen v. Bd. of Pub. Instruction

Although specifically provided for in subsection (1), the procedure of F.S. 1967, Section 38.10, F.S.A., is…