Citations
- 424 So. 2d 787
Full opinion text
BOOTH, Judge.
This cause is before us on appeal by the State of Florida, Department of Environmental Regulation [DER], from an order of the circuit court granting the motion of Falls Chase [appellee] for judgment on the pleadings.
The issues presented on appeal are the jurisdiction of the trial court to entertain suit for declaratory relief and the correctness of the judgment below as to the jurisdiction of DER.
The facts are essentially undisputed. The land in question is located on Upper Lake Lafayette, a privately owned body of fresh water in Leon County. At times in the past, portions of this property have been subject to inundation by waters of the lake, but sinkhole development in the lake, a natural phenomenon, has caused the lowering of the water level. The area sought to be regulated by DER has been dry for a number of years. Past uses include timber-ing, farming and grazing of cattle.
It is uncontroverted that the lands are “uplands,” as defined by DER rule, not subject to DER dredge and fill regulation under that rule.
It is stipulated by the parties that there are no sovereignty lands involved in this dispute.
In December of 1978, and again in February of 1979, representatives of DER met with representatives of the District for briefing and on-site inspection in connection with planned construction and installation of domestic waste-water collection systems and treatment facilities, and to determine if any portions of the property were subject to dredge and fill regulation under Chapter 403.
Prior to this inspection, DER had determined the extent of its dredge and fill jurisdiction over privately owned freshwater areas by means of an “aquatic plant vegetation index,” as required by Section 403.817, Florida Statutes. DER representatives continued to abide by the provisions of that statute and by Florida Administrative Code Rule 17-4.02, and to affirm to appel-lees the lack of jurisdiction over dredge and fill operations on the property until March of 1979.
On March 21, 1979, The Secretary of the Department of Environmental Regulation met with the representatives of the District and stated that the agency was considering making a claim of dredge and fill jurisdiction to the “ordinary high water line” boundary.
On April 5, 1979, the Deputy General Counsel of DER wrote to appellees setting out DER’s intention to use the “ordinary high water mark” on the particular property as the determinant of its dredge and fill jurisdiction, stating that a survey crew would be sent out to establish that line and concluding:
Until this line is determined we request that no further filling be done in this area until an ordinary high water line is established. We intend to take enforcement action for the work which has gone on to date unless a satisfactory resolution is reached to these apparent violations. We will offer your client the opportunity for an informal conference to discuss a resolution of the violation prior to initiating a formal enforcement action. If you wish to take advantage of this offer, please contact me within ten days from the date of this letter.
Appellees continually and consistently denied DER’s claim of jurisdiction. In May of 1979, the parties entered into a stipulation allowing Falls Chase to continue construction and giving DER permission to come onto the property in an attempt to identify an ordinary high water line. That line was not identified by the agency until August of 1979. By certified letter of August 9, 1979, The Secretary of the Department of Environmental Regulation advised appellees, in part, as follows:
The Department has determined that the ordinary high water line of Upper Lake Lafayette lies between 44.8 and 46.6 feet mean sea level....
For the purpose of this proceeding the department intends to exert its regulatory jurisdiction under Chapter 403, Florida Statutes, below 44.8 feet mean sea level.
Accordingly, you are hereby directed to submit the appropriate after-the-fact permit applications for the areas depicted on Exhibit F to the stipulation which are below the 44.8 feet contour level within thirty days of the receipt of this letter. Failure to do so shall constitute a violation of the terms and conditions of the stipulation and Sections 403.087(1) and 403.161(l)(b), Florida Statutes, and Sections 17-4.03 and 17-4.28, Florida Administrative Code, and shall be subject to appropriate enforcement action by the Department.
You are further directed to cease the placement of fill materials in those areas depicted in Exhibit F to the Stipulation which are below the 44.8 contour line. Failure to do so shall constitute a violation of the terms and conditions of the Stipulation and Sections 403.087(1) and 403.161(l)(b), Florida Statutes, and Sections 17-4.03 and 17-4.28, Florida Administrative Code, and shall be subject to appropriate enforcement action by the Department.
On August 28, 1979, Falls Chase filed a petition for writ of prohibition against DER with this court. The writ was denied September 6, 1979, by unpublished order. DER’s contention that this court’s denial of prohibition precludes further consideration of the jurisdictional issue is without merit.
On September 11, 1979, appellees filed a complaint in circuit court for declaratory and injunctive relief. DER answered and filed a counterclaim against appellees Sunshine and Elba in the nature of a civil action for the entry and enforcement of a permanent injunction and fine pursuant to Sections 403.131(1) and 403.141(1), Florida Statutes, for violations of Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code.
The circuit court granted Falls Chase’s motion for judgment on the pleadings, holding that DER had exceeded its statutory grant of authority and was without jurisdiction to regulate appellees’ dredge and fill activities. The court enjoined DER from attempting to extend its jurisdiction beyond the vegetative index required by statute and promulgated in Florida Administrative Code Rule 17-4.
On appeal to this court, DER contends that the circuit court is without jurisdiction because appellees failed to exhaust administrative remedies, and that it has dredge and fill jurisdiction as claimed over appellees’ property. We will consider the last contention first.
The grant of authority to DER to regulate dredge and fill activities is Section 403.817, Florida Statutes, adopted effective June 9, 1977, providing:
(1) It is recognized that the levels of the waters of the state naturally rise and fall, depending upon tides and other hydrological, meteorological, and geological circumstances and features. The natural rise and fall of the waters is essential to good water quality, but often makes it difficult to determine the natural landward extent of the waters. Therefore, it is the intent of the Legislature that the Department of Environmental Regulation establish a method of making such determination, based upon ecological factors which represent these fluctuations in water levels.
(2) In order to accomplish the legislative intent expressed in subsection (1), the department is authorized to establish by rule, pursuant to chapter 120, the method for determining the landward extent of the waters of the state for regulatory purposes. Such extent shall be defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. The application of plant indicators to any areas shall be by dominant species.
(3)Amendments adopted after April 5, 1977, to the rules of the department adopted before April 5, 1977, relating to dredging and filling and which involve additions or deletions of the vegetation or soil indices or the addition or deletion of exemptions shall be submitted in bill form to the Speaker of the House of Representatives and to the President of the Senate for their consideration and referral to the appropriate committees. Such rule amendments shall become effective only upon approval by act of the Legislature.
(5) The landward extent of waters as determined by the rules authorized by this section shall be for regulatory purposes only and shall have no significance with respect to sovereign ownership, (emphasis supplied)
The Legislature, in the above statute, requires the Department to establish a method of determining the natural landward extent of waters of the state by identification of vegetation or soils, a method which takes into account natural fluctuations in water levels. The Legislature also carefully circumscribed the manner in which DER is to exercise the power granted and specified: (1) The natural landward extent of waters is to be identified by ecological factors, specifically plant or soil characteristics of areas subject to regular and periodic inundation. (2) The method for determining the landward extent of the waters of the state for regulatory purposes is to be established by rule. (3) Any amendments to dredge and fill rules relating to plant or soil indices or exemptions must be submitted in “bill form” to both houses of the Legislature for consideration and referral to appropriate committees, and become effective only upon approval by act of the Legislature.
DER amended Florida Administrative Code Rule 17-14.02 in 1975 to set forth definitions and a vegetation index comprised of many different species of plant life. At the time of this litigation, no soil index, as permitted by Section 403.817, had been adopted by DER. Rule 17-14.02 defines “submerged lands” [17-4.02(17) ] and “transitional zone[s] of submerged land[s]” [17-4.02(19)], both of which are subject to dredge and fill regulation. The rule also defines “uplands” [17-4.02(18)], which are not subject to dredge and fill regulation.
DER concedes the land in question does not have plant life indicative of areas subject to regular periodic flooding under the index required by statute and promulgated by DER rule.
DER, nonetheless, and in the face of all of the above, asserts that it has jurisdiction to regulate activities on this land under the general provisions of Section 403.031(3), Florida Statutes, which refers to “waters of the state.” We find this claim of jurisdiction totally unsupported by statute or rule and without credible basis, as did the trial court.
The claim of jurisdiction by DER is devoid of merit for a number of reasons, including, but by no means limited to: (1) Section 403.817, Florida Statutes, specifies the method by which dredge and fill regulatory jurisdiction is to be determined. The ordinary high water mark is not one of the methods prescribed. (2) At common law, the ordinary high water mark was used to establish the line of ownership between publicly owned bodies of water and privately owned land and would have no application here, since ownership is not at issue in this case. (3) It is not permissible under the terms of Section 403.817 for DER to modify its jurisdiction by substituting ordinary high water mark for the methods specified by statute, but, even if permissible, such a change would require adoption of a rale subject to legislative approval. Section 403.817, Florida Statutes.
As shown above, the statute mandates the specific methods to be used in determining DER regulatory jurisdiction over the landward extent of water bodies in the state. So determined was the Legislature that only aquatic plant or soil indices be used to define the limits of DER jurisdiction and that these indices, once established, remain constant, that Section 403.817(3) further provides DER may neither add nor delete a single plant or soil without specific prior legislative approval.
An agency has only such power as expressly or by necessary implication is granted by legislative enactment. An agency may not increase its own jurisdiction and, as a creature of statute, has no common law jurisdiction or inherent power such as might reside in, for example, a court of general jurisdiction. When acting outside the scope of its delegated authority, an agency acts illegally and is subject to the jurisdiction of the courts when necessary to prevent encroachment on the rights of individuals.
We hold, therefore, DER was without jurisdiction to regulate dredge and fill activities on the land in question.
The remaining question is the right of appellees to seek judicial determination of the jurisdictional issue without exhaustion of administrative remedies. In this regard, DER contends Falls Chase should have first applied to DER for dredge and fill permits raising the jurisdictional issue in that proceeding followed, if necessary, by administrative appeal and appeal to this court under Section 120.68. It is also suggested that the declaratory statement procedure under Section 120.565 was an available remedy.
The enactment of Florida Statutes, Chapter 120, effective January 1, 1975, afforded new administrative remedies and severely curtailed the need for extraordinary judicial relief. Only in exceptional cases may the courts assume jurisdiction to render declaratory and/or injunctive relief without requiring exhaustion of administrative remedies.
A challenge to agency jurisdiction on persuasive grounds is a widely recognized exception to the exhaustion doctrine. A leading decision of the United States Supreme Court, Leedom v. Kyne, 358 U.S. 184, 188-89,79 S.Ct. 180, 183-184, 3 L.Ed.2d 210 (1958), holds:
This suit is not one to “review,” in the sense that that term is used in the [Wagner] Act, a decision of the Board made with in its jurisdiction. Rather it is one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act. ... Plainly, this was an attempted exercise of power that had been specifically withheld.
State courts which have considered the matter recognize the exception; and as stated by Professor Schwartz, allegations of lack of jurisdiction are properly dealt with on the pleadings except in rare cases.
In Odham v. Foremost Dairies, Inc., 128 So.2d 586, 592-93 (Fla.1961), the Florida Supreme Court held:
In those instances where there have been gross or flagrant abuses of power, or where such agencies have attempted to act beyond the powers delegated to them, the courts have unhesitatingly intervened. ... An examination of the many authorities of text on this question reveals a consistent attitude of the courts that judicial intervention with administrative action is justified only in those instances where the invalidity of the administrative act is not subject to reasonable differences of opinion, (emphasis supplied)
In Gulf Pines Memorial Park v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla.1978), the Florida Supreme Court held:
[T]he question of “need” for a cemetery would never be reached, if, as Oaklawn claims, Chapter 76-251 is either unconstitutional or inapplicable. ... [I]t is pointless to require applicants to endure the time and expense of full administrative proceedings to demonstrate “need” before obtaining a judicial determination as to the validity of the statutory prerequisite. (emphasis supplied)
The fundamental jurisdiction of courts in the administrative arena was recognized in State ex rel. Department of General Services v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977), wherein this court held:
We have acknowledged that the Administrative Procedure Act does not and cannot displace circuit court jurisdiction to enjoin enforcement of facially unconstitutional agency rules, [citations omitted] That jurisdiction remains unimpaired, a necessary concomitant of the judicial power vested in the circuit courts by Article V, Sections 1 and 5 of the Constitution. (emphasis supplied).
In Willis, this court referred specifically to circuit court jurisdiction to enjoin enforcement of facially unconstitutional rules. More egregious is the situation represented by the instant case where the agency has undertaken to act without a rule and in a manner clearly contrary to its statutory authorization. Had agency action in the instant case been dignified by the adoption of a rule purporting to authorize its claim of jurisdiction, the rule itself would be invalid unless submitted to both houses of the Legislature for prior approval under Section 403.817. Thus, acting without benefit of statute or rule and contrary to its enabling legislation, the agency’s action is patently invalid and the basis for court intervention clear.
The Willis case, though not involving agency jurisdiction, states the “key factors” to determine when a court should undertake to decide a question of agency jurisdiction prior to exhaustion of administrative remedies. Willis quotes with approval from Professor Davis’ treatise as follows:
Professor Davis [3 K. Davis, Administrative Law Treatise 69 (1958) ] there cites three “key factors” which should influence the judicial decision whether to intervene by extraordinary writ or defer to the administrative remedy:
Extent of injury from pursuit of administrative remedy, degree of apparent clarity or doubt about administrative jurisdiction, and involvement of specialized administrative understanding in the question .... (emphasis supplied)
This quotation is part of Professor Davis’ discussion of lack of agency jurisdiction as an exception to the doctrine of exhaustion of administrative remedies. Davis continues:
Unfortunately, each of these three key factors is a variable, and each often calls for a considerable amount of judgment for its proper appraisal.
A workable standard probably should not go beyond a statement that each of these three factors should be weighed in determining whether or not a court should decide an issue of administrative jurisdiction without requiring exhaustion of administrative remedies, (emphasis supplied)
In weighing the various factors, Professor Davis concludes that, where lack of administrative jurisdiction “clearly appears on the surface,” exhaustion should probably not be required even though the injury from the administrative proceeding would be slight.
Analyzing Davis’ three factors in light of the instant case, the record reveals that injury from the pursuit of administrative remedy in the instant case includes time and expense, and, in addition, the inability of appellees to make use of their property due to the agency’s assertion of regulatory jurisdiction with resulting financial loss to the property owner. The second factor approved by Professor Davis, “degree of apparent clarity or doubt about administrative jurisdiction,” is resolved strongly in favor of appellees in that, as previously pointed out, the agency’s claim of jurisdiction is clearly without merit. The third Davis factor is likewise determined in favor of appellees, since the question presented is one of law and involves no specialized administrative understanding, nor indeed any factual issues. Weighing these three factors then, we find the balance requires resolution of the jurisdictional issue without exhaustion of administrative remedies.
When an agency acts without col-orable statutory authority that is clearly in excess of its delegated powers, a party is not required to exhaust administrative remedies before seeking judicial relief. A finding of lack of colorable statutory authority provides the necessary limitation on this exception to the requirement of exhaustion of administrative remedies. A jurisdictional claim which has apparent merit, or one which depends upon factual determination in most instances requires exhaustion of administrative remedies before resort to judicial forum. In Odham v. Foremost Dairies, Inc., 128 So.2d 586, 593 (Fla.1961), the Florida Supreme Court held:
An examination of the many authorities of texts on this question reveals a consistent attitude of the courts that judicial intervention with administrative action is justified only in those instances where the invalidity of the administrative act is not subject to reasonable differences of opinion.
DER’s jurisdictional claim is clear and has been articulated by its top-ranking official. Whether DER’s action could be labeled “free form” is without consequence to determination of the jurisdictional issue presented.
The trial court correctly denied DER’s motion to dismiss and entered judgment on the pleadings for appellees.
AFFIRMED.
SHAW, J., concurs.
ROBERT P. SMITH, Jr., C.J., dissents with written opinion.
. Falls Chase Special Taxing District, created by Leon County Ordinance No. 75-6, enacted February, 1975, as a public body pursuant to Section 1.01(9), Florida Statutes. Other appel-lees are Sunshine Land Development, Inc. and Elba, Inc., landowners within the district.
. Fla.Admin.Code Rule 17-4.02, as amended in 1975 and in effect at the time pertinent to this litigation, is set out in note 10 infra.
. Id.
. “Ordinary high water mark” is not one of the criteria for jurisdiction specified in Section 403.817, Florida Statutes, set out in text infra, or Fla.Admin.Code Rule 17-4.02, as it existed in 1979, set out in note 11 infra.
. Falls Chase, as appellee, asserted the agency’s lack of jurisdiction in the related administrative appeal in Case No. 79-1462, but the appeal was dismissed on other grounds.
. The stipulation of May 15, 1979 also provided, inter alia, that DER would waive its right to seek fines or penalties from Falls Chase while the survey was pending. Falls Chase agreed to limit its filling activities to specified areas, to submit after-the-fact permit applications for areas found to be within DER jurisdiction and to remove fill and restore affected sites within 90 days of DER’s denial of applications or exhaustion of available judicial review of DER action.
Appellees Sunshine and Elba, private landowners, were not parties to this stipulation.
. This court’s Case No. PP-106. The record reveals no consideration of the merits of the controversy.
. The extraordinary writ of prohibition is a prerogative writ, not a writ of right, State ex rel. Washburn v. Hutchins, 101 Fla. 773, 777, 135 So. 298, 299 (1931), and its denial without written opinion does not bar subsequent consideration of jurisdictional issues, see, e.g., Public Employees Relations Commission v. District School Board, 374 So.2d 1005, 1010 (Fla. 2d DCA 1979), cert. denied, 383 So.2d 1193 (Fla.1980):
It would be pure speculation to attribute any particular reasoning to the majority of the two prior panels of this court which decided that PERC’s suggestions for writ of prohibition should be denied. The point is that those denials could have rested on reasons other than the merits of the jurisdictional question posed in those prior proceedings. This being the case, we hold that this court’s prior denials of PERC’s suggestions for writ of prohibition do not foreclose us from considering the jurisdictional issue on this appeal. (emphasis supplied)
See State v. Howell, 89 N.M. 10, 546 P.2d 858, 859 (1976):
Does the Supreme Court’s denial of a Writ of Prohibition preclude our review of the trial court’s denial of defendant’s motion to dismiss? Our answer is in the negative.... [A] denial of a Writ of Prohibition may be for a variety of reasons.... Thus, the denial of a Writ of Prohibition has no specific finality. (emphasis supplied)
. This unique statutory provision suggests a legislative intention not to permit capricious modifications by the agency affecting its dredge and fill regulatory power.
. Fla.Admin.Code Rule 17-4.02, as it existed at the time pertinent to this litigation, in pertinent part:
Submerged lands: “Those lands covered by the categories of water listed in Sec. 17-4.28(2), F.A.C., including those lands contiguous to said waters where any of the following vegetational species, or any combination of such species, constitute the dominant plant community.” [Thereafter followed a listing of the 50 different species of aquatic life referred to above.]
Uplands: “Lands landward of submerged lands upon which the dominant plant community is composed of any vegetational species, or combination of species, other than those listed under the definition of ‘submerged lands’ and ‘transitional zone of a submerged land,’ herein.”
Transitional zones of submerged lands: “[Areas of land] between a submerged land, as defined in Subsection (17) above and an upland as defined in Subsection (18) above. It shall consist of the waterward first fifty (50) feet landward of a line defined by the landward limit of a submerged land, or the waterward quarter ('A) of the area between a submerged land and an upland, whichever is greater, and upon which any of the following vegetational species, or combination of such species, constitute the dominant plant community.” [Thereafter followed a listing of some 22 species of plant life.]
.The trial court’s order, in pertinent part, is as follows:
It should be noted that the Department does not contend that the District is engaged in any development operation violative of Section 403.817, F.S., or Rule 17—4.02. This case is rendered unique, says the Department, by the fact that Upper Lake Lafayette was drained when a geological fault or sink hole developed. Such fact justifies, it argues, asserting the more landward ordinary high-water mark as its regulatory boundary. When questioned from whence it derived the authority to determine the landward extent of Upper Lake Lafayette for regulatory purposes by reference to an historical line used only up to now to delineate public from private ownership or to determine ownership disputes, counsel claimed for the Department some inherent power or incipient rule-making authority to be exercised in the public interest.
In mandating a method for determining regulatory jurisdiction “based upon ecological factors,” the Legislature expressly recognized that fluctuations in water levels are attributable on occasion to geological features. Thus, if as the Department contends, this is a case of first impression, it is so only because this is the first time the Department has endeavored to assert regulatory jurisdiction landward to the ordinary high-water mark.
. Maloney, “The Ordinary High Water Mark: Attempts at Settling an Unsettled Boundary Line,” 12 U.Wyoming L.Rev. 1, 1-2 (1978):
In most states and in the federal system the ordinary high water line (OHWL) is the boundary between privately-owned riparian uplands and publicly-owned sovereignty lands beneath non-tidal navigable waters.
Id. at p. 2 note 2:
It is important to understand at the outset the scope of applicability of the OHWL defi'nition. It applies to non-tidal, navigable water bodies, generally inland from the coast. It does not apply to inland non-navigable, and therefore privately-owned water bodies, although it may have some relevance in that context where the extent of surface usage of riparian owners must be defined [citations omitted],
. State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So.2d 628, 635-36 (Fla. 1st DCA 1974), cert. dismissed, 300 So.2d 900 (Fla.1974).
. Gardinier, Inc. v. Florida Department of Pollution Control, 300 So.2d 75, 76 (Fla. 1st DCA 1974); Department of Health and Rehabilitative Services v. Florida Psychiatric Society, Inc., 382 So.2d 1280 (Fla. 1st DCA 1980); Context Development Co. v. Dade County, 374 So.2d 1143, 1149-50 (Fla. 3d DCA 1979):
However laudable or commendable the actions of the appellees, ... “[i]t is well settled that a statutory agency ... does not possess any inherent powers; such agency is limited to the powers granted, either expressly or by necessary implication, by the statutes ... creating them.”
.The availability of this remedy is doubtful because of the underscored language in Fla.Admin.Code Rule 17-1.119:
A declaratory statement is a means for determining the rights of substantially affected persons when a controversy, or when doubt concerning the applicability of any statutory provision, rule or order, has arisen before any wrong has actually been committed, (emphasis supplied)
Of course, lack of an available, adequate remedy is, in itself, a recognized exception to the exhaustion requirement: Ortega v. Owens-Corning Fiberglas Corp., 409 So.2d 530 (Fla. 1st DCA 1982); Northeast Airlines, Inc. v. Weiss, 113 So.2d 884 (Fla. 3d DCA 1959), cert. denied, 116 So.2d 772 (Fla.1959); Deseret Ranches of Florida, Inc. v. State, Department of Agriculture and Consumer Services, 392 So.2d 1016 (Fla. 1st DCA 1981); Department of Transportation v. Morehouse, 350 So.2d 529 (Fla. 3d DCA 1977); cert. denied, 358 So.2d 129 (Fla.1978); General Care Corp. v. Forehand, 329 So.2d 49 (Fla. 1st DCA 1976).
. 2 Cooper, State Administrative Law 577 (1965):
Where judicial attack upon an agency order is predicated on the theory that the agency has no jurisdiction to act in the premises, and the court finds that the objection is well taken, failure to exhaust administrative remedies is commonly excused.
Skinner & Eddy Corp. v. United States, 249 U.S. 557, 562-63, 39 S.Ct. 375, 377, 63 L.Ed. 772 (1919):
The contention is that the commission [Interstate Commerce Commission] has exceeded its statutory powers; and that, hence the order is void. In such a case the courts have jurisdiction of suits to enjoin the enforcement of an order, even if the plaintiff has not attempted to secure redress in a proceeding before the commission, [citations omitted] The District Court properly assumed jurisdiction of this suit, (emphasis supplied)
Coca-Cola Co. v. Federal Trade Commission, 475 F.2d 299, 303 (C.A. 5th 1973), cert. denied, 414 U.S. 877, 94 S.Ct. 121, 38 L.Ed.2d 122 (1973):
The most widely recognized exception to the general rule against judicial consideration of interlocutory agency rulings is the class of cases where an agency has exercised authority in excess of its jurisdiction or otherwise acted in a manner that is clearly at odds with the specific language of a statute.
Mobil Oil Corporation v. Department of Energy, 469 F.Supp. 1119, 1123-24 (D.C.N.Y.1979).
. See also Adams Packing Association, Inc. v. Florida Department of Citrus, 352 So.2d 569, 570-71 (Fla. 2d DCA 1977); School Board of Leon County v. Mitchell, 346 So.2d 562, 568 (Fla. 1st DCA 1977); State, Department of Health and Rehabilitative Services v. Lewis, 367 So.2d 1042, 1045 (Fla. 4th DCA 1979):
A distinction between a proceeding essentially seeking a review of agency action, and one essentially seeking a determination of rights has also been used as a litmus in determining jurisdiction. In the former case, the Administrative Procedure Act controls, whereas in the latter, jurisdiction lies in the circuit court.
. Schwartz, Administrative Law 510, 511 (1976).
. Id., at 508:
Since a jurisdictional claim can be raised in most cases, irresponsible allegations of lack of jurisdiction might be widely used to delay effective administration. In the vast majority of cases, however, the claim of lack of jurisdiction can be dealt with summarily on the pleadings without the need for any trial in the court. In the rare case, on the other hand, where the individual does make out a prima facie case of lack of agency jurisdiction over him, why should he have to resort to the expensive and time consuming administrative procedures which may convert the exhaustion of remedies into the exhaustion of litigants?
. In State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977), general contractors brought suit for injunction in the circuit court to restrain DGS from completing bidding and contracting procedures. The basis for the suit was that the procedures violated usual and accepted standards for award of contracts for public works. Petition for writ of prohibition filed by DGS in this court was granted on the basis that the contractors had an adequate remedy available under Chapter 120.
. State ex rel. Department of General Services v. Willis, 344 So.2d 580, 590 note 10 (Fla. 1st DCA 1977).
. 3 K. Davis, Administrative Law Treatise 69 (1958).
. “Colorable—Seemingly valid and genuine, having an appearance of truth, right or justice.” Webster’s Third International Dictionary (unabridged). The term is used in the law to designate that which is apparent or prima facie, Wheeler v. Nickels, 168 Or. 604, 126 P.2d 32, 35-36 (1942); “not the thing itself, but only an appearance thereof,” Broughton v. Haywood, 61 N.C. 380, 383 (N.C.1867); colorable cause or colorable claim for the purpose of invoking or conferring jurisdiction is one which, on preliminary inquiry, shows that it is not “so unsubstantial and obviously insufficient either in fact or law, as to be plainly without color or merit and a mere pretense.” In Re Cadillac Brewing Company, 102 F.2d 369, 370 (6th Cir.1939); a matter is not “colorably” under jurisdiction “[wjhen no facts are present or only such facts as have neither legal value nor color of legal value in the affair,” Broom v. Douglass, 175 Ala. 268, 57 So. 860, 864 (1912).
. Odham v. Foremost Dairies, Inc., 128 So.2d 586, 593 (Fla.1961), judicial intervention justified only where “[t]he invalidity of the administrative act is not subject to reasonable differences of opinion; American General Insurance Company v. Federal Trade Commission, 496 F.2d 197, 200 (CA 5th 1974), court declined to determine jurisdictional issue described as “close;” McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969), “[t]he courts ordinarily should not interfere with an agency until it has completed its action or else has clearly exceeded its jurisdiction" (emphasis supplied); Lone Star Cement Corporation v. Federal Trade Commission, 339 F.2d 505, 511 (CA 9th 1964), exhaustion required where jurisdictional issue “not free from doubt;” Schwartz, Administrative Law 511 (1976), exhaustion excused where “[o]n the pleadings it is clear that the agency lacks jurisdiction or that it is at least not clear that it possesses jurisdiction.”
3 K. Davis, Administrative Law Treatise 69 (1958), factor to consider in excusing exhaustion: “degree of apparent clarity or doubt about administrative jurisdiction.”
Jaffe, “The Exhaustion of Administrative Remedies,” 12 Buffalo L.Rev. 327, 336 (1963):
I would agree with Judge Vanderbilt [writing for the court in Ward v. Keenan, 70 A.2d 77 (N.J.1948)] that if the court can determine that there is little to be gained from an administrative hearing, or no jurisdiction whatever to hold it, there is no compelling, surely no invariable reason for forcing the parties through the expense, delay and exasperation of an administrative hearing.... Tobe sure, if there is a doubt, the doubt should be resolved in favor of the agency. It should appear with clarity that there is no scope for the exercise of administrative fact-finding or discretion, (emphasis supplied)
See also Swann, “Administrative Adjudication of Constitutional Questions,” 33 U.Miami L.Rev. 527, 536, who proposes, as to constitutional questions, validity of statute and “other recognized exceptions to the exhaustion doctrine,” this rule:
Where summary judgment is appropriate, submission to the agency may be dispensed with, but there should be no barrier whatsoever to a submission at the option of the party offering the challenge, (emphasis supplied).
Swann also states the following test for an “egregious error” under the Willis decision at 593:
An egregious error is one where the difficulty of the question is so slight that an agency error becomes evidence of incompetence or a willful disregard of duty. As such, the error is also evidence that resort to the agency’s own corrective process is likely to prove futile. It is an error which renders the court so skeptical of the agency’s purposes or capabilities that judicial intervention becomes necessary in order to secure the basic rights of the affected parties.
. See, e.g., Communities Financial Corp. v. Department of Environmental Regulation, 416 So.2d 813 (Fla. 1st DCA 1982), wherein DER’s assertion of jurisdiction, although ultimately rejected by agency order which was adopted in the circuit court, raised a justiciable issue. This court held exhaustion of administrative remedies should have been required and, on that basis, set aside the circuit court’s award of costs against DER. DER’s claim of jurisdiction in that case required factual determinations and presentation of testimony.
. Capeletti Brothers; Inc. v. Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979), defines “free form” as:
[TJhe necessary or convenient procedures, unknown to the APA, by which an agency transacts its day-to-day business. See H. Le-vinson, “Elements of the Administrative Process,” 26 American Law Review 872, 880, 926 et seq. (1977).
.The originator of the term “free form,” Professor Levinson, states (26 Amer.U.L.Rev. 872, 931):
Even if an agency is permitted to reach a decision on a free-form basis, the end result reflected in that decision is subject to jurisdictional and substantive standards. In brief, an agency may act only in situations within the jurisdiction conferred by law and may reach only those results that come within the substantive standards provided by law. (emphasis supplied)
In Department of Professional Regulation v. Hall, 398 So.2d 978 (Fla. 1st DCA 1981), this court approved the circuit court’s refusal to dismiss a jurisdictional challenge to DPR in a dispute involving agency action referred to by this court as “free form.”
ROBERT P. SMITH, Jr., Chief Judge,
dissenting.
The majority overthrows a vast body of Florida APA precedent restricting circuit court litigation and requiring exhaustion of adequate chapter 120 remedies for the resolution of disputes generated in free-form dealings between agencies and affected persons. Whether chapter 403 permits Falls Chase to dredge and fill without restriction in the historic basin of Upper Lake Lafayette is a question the Department of Environmental Regulation is entirely competent to decide, given its obvious regulatory jurisdiction over the pollution of lakes. Sections 403.061, .031(2), (3), Florida Statutes (1981). Like all other agencies of the executive branch in their respective fields, the Department was required to decide the applicability of chapter 403 to Upper Lake Lafayette under disciplines imposed by the APA; it specifically was required, if asked, to declare and demonstrate, through an order reviewable by this Court if necessary, any applicability that chapter 403 may have in the particular circumstances prevailing at Upper Lake Lafayette. Sections 120.-565, .68.
Falls Chase studiously avoided this available and wholly adequate administrative remedy. Instead, Falls Chase temporized until its advancing construction created a condition of urgency, then launched this collateral circuit court attack on the Department’s position taken in free-form proceedings not subject to APA disciplines. The allegation on which Falls Chase invoked the circuit court’s jurisdiction, that Falls Chase was repeatedly refused APA remedies, was so transparently without merit that it does not bear judicial mentioning, and it was not mentioned either in the circuit court “judgment on the pleadings” or in the majority’s decision. That frivolous allegation, it appears, served only to open the circuit court doors and to defeat the Department’s motion to dismiss the complaint for failure to exhaust administrative remedies. After serving those purposes the allegation played no further part in the circuit court’s decision “on the pleadings,” though the allegation was denied by the Department’s answer and the record convincingly refutes it. The circuit court thus decided the merits of the dispute and the majority has done the same, cloaking the decision in a labored analysis to the effect that the agency lacked jurisdiction because its position taken in free-form proceedings was not “colorably” correct.
The well-considered and reliable Florida rule that APA remedies must be exhausted, if they are adequate, is thus cast aside without any effort to demonstrate its sudden want of merit, and without any showing that adherence to it would have done even the slightest momentary injury to Falls Chase. Indeed, as will be shown, adherence to that principle by Falls Chase voluntarily, or by the circuit court, would have routinely ended this dredge-and-fill controversy in 1979. Instead, expediency prevailed and it still prevails. The majority, apparently attracted to the notion that the circuit court, after all, got to the right result on the merits, overthrows the Florida exhaustion requirement in favor of an amalgam of selected federal case law on exhaustion which Professor Davis rightly calls “unprincipled,” that case law having become since 1975 “even more disorderly than it previously was.” The majority does not improve the federal brew by adding to it Professor Davis’ own variation on the federal theme, a “weighing” of factors including the “degree of apparent clarity or doubt” concerning the extent of the agency’s power. As the professor himself says, his proposal “has been a failure,” not only for the reason he assigns, that just one federal court of appeals has used it by name, but also because the professor has merely rearranged and renamed the same “unprincipled” and “disorderly” subjective factors he wishes to banish from federal case law. Because Davis’ restatement of federal law is equally susceptible to manipulation by result-oriented users, it is equally unpredictable in application, therefore equally productive of disruptive and unnecessary litigation such as this. Just recently this Court rejected a proposal to substitute for Florida’s brightline rule one of the endlessly variable versions of federal case law that — can anyone be suprised? — requires judicial abstention where the Florida rule now permits discreet circuit court intervention to decide a threshold question of statutory constitutional validity. See Smith v. Willis, 415 So.2d 1331 (Fla. 1st DCA 1982), where the Court saw “no reason to venture such a fundamental reordering of mature Florida exhaustion law . . ., least of all on the basis of imported federal precedent which ... is anything but coherent and predictable in application .... ” 415 So.2d at 1336.
The Court in Smith v. Willis saw no reason to displace Florida’s exhaustion rule in favor of one branch of federal case law that counsels more judicial abstention; and there is no reason here to displace Florida’s rule in favor of other federal case law that counsels less. The vice of all the wonderfully varied federal doctrine is its subjectivity and unpredictability; and while such flawed doctrine may have to suffice for the federal judicial system, for reasons I shall mention in part V, and for national scholars whose work understandably feeds almost exclusively upon federal APA law, Florida’s chapter 120 has “varied and abundant remedies for administrative error” that are markedly more effective than those of the federal Act, and more accessible. See State ex rel. Department of General Services v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977). Correspondingly there is neither need nor justification for supplanting Florida’s firm exhaustion principle with the federal import.
Seeking to find in the Willis decision some basis for bypassing adequate APA remedies in favor of collateral court litigation over the extent of the agency’s regulatory power, the majority seems to suggest, ante, 424 So.2d at 795, that Willis swallowed Davis’ restatement of federal law whole by quoting it in footnote 10, 344 So.2d at 590. That simply is not the case. The same footnote goes on to report that the Davis treatise recommends elsewhere that Congress “[g]et rid of extraordinary remedies as a means of review” and “[establish a single, simple form of proceeding for all review of administrative action,” such as the direct appeal provided by section 120.68 of the Florida APA. But of course Willis did not relegate to a footnote the whole point of its lengthy and concentrated discussion. The summary paragraph in the text of Willis, to which all the preceding discussion pointed, stated in terms that cannot be overlooked that circuit court intervention in agency disputes is justified only when APA remedies are unavailable or inadequate:
Does the complaint of the respondent contractors demonstrate some compelling reason why the Administrative Procedure Act does not avail them in their grievance against the Department, and why the circuit court must therefore intervene? We think it does not. No lack of general authority in the Department is suggested; nor is it shown, if that is the case, that the Act has no remedy for it. No illegal conduct by the Department is shown; nor, if that is the case, that the Act cannot remedy the illegality. No departmental ignorance of the law, the facts or the public good is shown; nor, if any of that is the case, that the Act provides no remedy for it. No claim is made the Department ignores or refuses to recognize relators’ substantial interests, or refuses to afford a hearing, or otherwise refuses to recognize that rela-tors’ grievance is cognizable administratively. The respondent contractors have made no showing that remedies available under the Act are inadequate. (344 So.2d at 591, emphasis added.)
Willis thus does not lend support for the majority’s view that a circuit judge should enjoin free-form agency action that the judge thinks is beyond the agency’s power or is “without colorable statutory authority.” Ante, 424 So.2d at 796. The holding of Willis was exactly the opposite: that whatever the complaint about agency action, be it “lack of general authority” or “illegal conduct” or “ignorance of the law, the facts or the public good,” a circuit court must not intervene and preempt APA processes unless it is shown that remedies available under the Act cannot adequately deal with the complaint.
I.
Reviewing the decisions, 1977-1982, turning on the adequacy of chapter 120 remedies.
Willis proposed, in 1977, a “judicial freshening of the doctrines of primary jurisdiction and exhaustion of remedies,” by means of requiring exhaustion of adequate administrative remedies. Since then an unbroken line of decisions by Florida appellate courts, including those of the Florida Supreme Court, have addressed exhaustion questions in terms of the availability and adequacy of administrative remedies. Those decisions, arranged chronologically from 1977 to June 1982, include (emphasis added):
School Board of Leon County v. Mitchell, 346 So.2d 562, 569 (Fla. 1st DCA 1977), cert. den., 358 So.2d 132 (Fla.1978) (“Appellee, as a party whose interests were ‘substantially affected,’ could have had that issue decided ... by hearing held pursuant to Section 120.57(1), Florida Statutes (1975). Under such circumstances a declaratory judgment action will not lie.”)
Jefferson National Bank of Miami Beach v. Lewis, 348 So.2d 348 (Fla. 1st DCA 1977) (“[T]he appealed order of the Leon County Circuit Court granting Jefferson declaratory and injunctive relief, although in substance entirely correct, is REVERSED and the cause REMANDED for dismissal because adequate remedies were and are available under Chapter 120 ....”) .
United Faculty of Florida FEA v. Branson, 350 So.2d 489, 493 (Fla. 1st DCA 1977) (“Adequate remedies for administrative determination of that question, and for judicial review, existed under Chapter 120, and no emergent or other unusual circumstances were sufficiently shown to bypass the administrative remedy. ... “[W]ere we to approve an expansion of the circuit court’s jurisdiction [to enforce the Public Records Act, ch. 119] to decide pendant questions determinable under available and adequate administrative remedies, we would quickly dissipate the benefits of a uniform Administrative Procedure Act.”)
Adams Packing Association, Inc. v. Florida Department of Citrus, 352 So.2d 569, 571 (Fla. 2d DCA 1977) (“The Administrative Procedure Act does not then provide an adequate administrative remedy, and the procedure for review of agency action established by the Act is not applicable to this dispute.”)
Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla.1978) (“... Oaklawn did not attempt to avoid administrative remedies, but merely sought to have them delayed in a reasonable effort to seek a judicial declaration of rights that could not be obtained administratively.”)
Carrollwood State Bank v. Lewis, 362 So.2d 110, 116 (Fla. 1st DCA 1978), cert. den., 372 So.2d 467 (Fla.1979) (“No statute, rule nor regulation, nor the application thereof is challenged; nor is there any allegation nor demonstration of inadequacy of administrative remedies under chapter 120.”)
State ex rel. Florida State Board of Nursing v. Santora, 362 So.2d 116, 117 (Fla. 1st DCA 1978) (“Suffice to say, here as in Willis, there has been no showing that the remedies available under the Administrative Procedure Act are inadequate ....”)
Metropolitan Dade County v. Department of Commerce, 365 So.2d 432, 433 (Fla. 3d DCA 1978) (“We hold that the declaratory judgment and injunctive remedy resorted to herein is applicable only in those extraordinary cases where a party has no other adequate administrative remedy to cure egregious agency errors or where a party's constitutional rights are endangered”)
Department of Health and Rehabilitative Services v. Lewis, 367 So.2d 1042, 1045 (Fla. 4th DCA 1979) (“In sum, the fact that Mrs. Lewis claimed ... even the right to compel HRS to comply with its own rules and regulations in handling such problems, is not a sufficient basis to invoke circuit court jurisdiction. No claim is made that HRS itself cannot remedy any illegality in its procedures or correct any error in the manner in which they are carried out.”)
Coulter v. Davin, 373 So.2d 423, 427-28 (Fla. 2d DCA 1979) (“On the other hand, the constitutional validity of the law pursuant to which the administrative agency takes action, or the constitutional validity of some act of the agency taken in previous proceedings, in the form of a rule or regulation or some other form, are matters which the administrative agency may not determine.”)
Junco v. State Board of Accountancy, 390 So.2d 329, 331 (Fla.1980) (“The principle underlying the exhaustion requirement is inapplicable where adequate remedies do not abide within the administrative sphere”)
Department of Professional Regulation v. Hall, 398 So.2d 978, 979 (Fla. 1st DCA 1981) (“As a result of this peculiar statutory arrangement, by which the legislature has granted the Department only the appearance of authority over its subsidiary boards, but little direct power in fact, the legislature has deprived the executive branch of clear effective authority to take action resolving the dispute by means of the Administrative Procedure Act”)
Department of Business Regulation v. N.K., Inc., 399 So.2d 416 (Fla. 3d DCA 1981) (“The licensee [who won a circuit court injunction] ... clearly had another remedy. Section 120.68 ... provides for immediate review in the appropriate District Court of Appeal ....”)
Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 400 So.2d 66, 74 (Fla. 1st DCA 1981) (“The Chapter 120 remedies plainly were adequate, and the circuit court correctly declined ‘to employ an extraordinary remedy to assist a litigant who has foregone an ordinary one which would have served adequately.’ ”)
Ortega v. Owens-Corning Fiberglas Corp., 409 So.2d 530, 532 (Fla. 1st DCA 1982) (“In no sense, therefore, is Ortega’s claimed remedy [declaration of the unconstitutionality of chapter 440] available in chapter 440 proceedings before a deputy; in no sense are the proceedings authorized by chapter 440 adequate to resolve Ortega’s claim for common law money damages.”) [Emphasis by the court.]
Communities Financial Corp. v. Florida Department of Environmental Regulation, 416 So.2d 813, 816 (Fla. 1st DCA 1982) (“In Willis, this Court set forth certain criteria which, if met, would invoke the jurisdiction of the circuit court in such cases: (1) the complaint must demonstrate some compelling reason why the APA ... does not avail the complainants in their grievance against the agency; or (2) the complaint must allege a lack of general authority in the agency and, if it is shown, that the APA has no remedy for it; or (3) illegal conduct by the agency must be shown and, if that is the case, that the APA cannot remedy that illegality; or (4) agency ignorance of the law, the facts, or public good must be shown and, if any of that is the case, that the Act provides no remedy; or (5) a claim must be made that the agency ignores or refuses to recognize related or substantial interests and refuses to afford a hearing or otherwise refuses to recognize that the complainants’ grievance is cognizable administratively.... Since such avenues of relief were not pursued, we cannot conclude that the remedies of the administrative process were inadequate.”)
State of Florida, Department of General Services v. Biltmore Construction Co., 413 So.2d 803, 804 (Fla. 1st DCA 1982) (“As a matter of policy, a court should not exercise its jurisdiction if an adequate administrative remedy is available until that remedy has been exhausted. ... If [the Department] claims damages in excess of [the amount of re-tainage it holds], its only remedy is in court because the only adjudication that can be made in the administrative proceeding is whether or not Biltmore is entitled to be paid all of the retainage, part of it or none of it.”)
The uniform message of these decisions, including those authorizing court intervention if the threshold question is one of facial validity of a statute under the Constitution, is that administrative remedies must be resorted to or not depending on whether the available remedies are adequate. Given agency authority to decide the issue in question, the decisive question is whether the litigant seeking circuit court intervention has shown convincingly that chapter 120 remedies cannot in good order and in a reasonable time resolve the issue. In this line of decisions there is no warrant for a circuit court overriding adequate chapter 120 remedies on the ground that the judge thinks the agency’s free-form position is demonstrably wrong. On the contrary, the decisions teach that adequate APA remedies must be resorted to even for cure of “egregious” agency errors, Metropolitan Dade County, supra, 365 So.2d at 433, even for correction of “untenable” agency positions, Carrollwood, supra, 362 So.2d at 113, even if the circuit court’s contrary view of statutory requirements is “in substance entirely correct,” Jefferson, supra, 348 So.2d at 348.
Nor does the Supreme Court’s 20-year-old decision in Odham v. Foremost Dairies, Inc., 128 So.2d 586, 592-93 (Fla.1961) authorize judicial preemption of processes enacted by the 1974 Legislature to discipline agency decision-making. In Odham, which itself reversed an intervening circuit court, the Supreme Court delivered a general historical survey of the exhaustion principle, and in dicta not controlling Odham or any decision cited by Odham, drew from textbooks the phrases now seized upon by the majority, that “courts have unhesitatingly intervened” when “agencies have attempted to act beyond the powers delegated to them” or when “the invalidity of the administrative act is not subject to reasonable differences of opinion.” What was remarkable about Odham was not this inoperative dicta but the result itself, a reversal of circuit court intervention executing the Court’s forceful warning against “promiscuous intervention” by courts “except for most urgent reasons,” 128 So.2d at 593:
We must assume that these agencies will follow the mandates of the Constitution and laws in the discharge of their duties. If they fail to do so, those aggrieved may resort to the courts for a review of such actions.
When Odham was decided, our present chapter 120 was yet 13 years in the future; even the aboriginal Administrative Procedure Act of 1961 had not yet been enacted, chapter 61-280, Laws of Florida, chapter 120, Florida Statutes (1961) (became law June 22, 1961, effective July 1); and judicial review of agency action was not by appeal as of right to a district court of appeal, as now provided by section 120.68, but was by petition for certiorari to a district court of appeal or, significantly, to a circuit court — before whom it might plausibly have been argued then, but now no longer, that its early intervention to decide certain questions would simply accelerate the same court’s inevitable decision. Odham, 128 So.2d at 593, n. 14. Thus, 16 years later, Willis read that and other worthy but dated decisions in their proper historical context:
Forceful as those authorities are [requiring exhaustion of adequate administrative remedies], they weighed administrative processes and remedies which were primitive in comparison to those available under the Administrative Procedure Act of 1974. Those decisions could not have calculated the adequacy, as we must, of an administrative process which subjects every agency action to immediate or potential scrutiny; which assures notice and opportunity to be heard on virtually every important question before an agency; which provides independent hearing officers as fact finders in the formulation of particularly sensitive administrative decisions; which requires written findings and conclusions on impact issues; which assures prompt administrative action; and which provides judicial review of final, even of interlocutory, orders affecting a party’s interests. 344 So.2d at 590.
The “judicial freshening of the doctrines of primary jurisdiction and exhaustion of remedies, and greater judicial deference to the legislative scheme,” proposed by Willis, 344 So.2d at 590, came to pass in the decisions catalogued above, and for sound reasons set out in part V of this opinion those recent decisions should be adhered to. But for now the point to be made is that the 1961 Odham dicta relied upon by the majority opinion has never since, not once, been. relied on by a Florida appellate court to justify circuit court intervention on noncon-stitutional issues — not before the 1974 APA was enacted, and certainly not since. Rather, when Odham’s historical discourse on the exhaustion requirement has been cited or quoted in nonconstitutional decisions since, that language was employed to require exhaustion, not to excuse it. Florida State Board of Medical Examiners v. James, 158 So.2d 574 (Fla. 3d DCA 1963); Board of Public Instruction of Taylor County v. State ex rel. Reaves, 171 So.2d 209 (Fla. 1st DCA 1964); Marx v. Welch, 178 So.2d 737 (Fla. 3d DCA 1965), cert. den., 188 So.2d 313 (Fla.1966); Tampa Port Authority v. Deen, 179 So.2d 416 (Fla. 2d DCA 1965); Pest Control Commission of Florida v. Ace Pest Control, Inc., 214 So.2d 892 (Fla. 1st DCA 1968); Cole v. Southern Bell Telephone and Telegraph Co., 221 So.2d 200 (Fla. 3d DCA 1969); Pushkin v. Lombard, 279 So.2d 79 (Fla. 3d DCA 1973), cert. den., 284 So.2d 396 (Fla.1973); Duval County School Board v. Armstrong, 336 So.2d 1219 (Fla. 1st DCA 1976), cert. den., 345 So.2d 420 (Fla.1977); School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977), cert. den., 358 So.2d 132 (Fla.1978); General Electric Credit Corp. of Georgia v. Metropolitan Dade County, 346 So.2d 1049 (Fla. 3d DCA 1977); Planning and Zoning Board of the Town of Orange Park v. Kager, 351 So.2d 402 (Fla. 1st DCA 1977); Kaufman v. Machiedo, 357 So.2d 739 (Fla. 3d DCA 1978), cert. den., 364 So.2d 888 (Fla.1978); and Florida Power Corp. v. Advance Mobile Homes, Inc., 386 So.2d 897 (Fla. 5th DCA 1980), pet. rev. den., 394 So.2d 1151 (Fla.1981).
In keeping with the abundant precedent requiring judicial