author: SUNDBERG, Justice.

text:
    STATE of Florida, DEPARTMENT OF REVENUE, Petitioner, v. ZUCKERMAN-VERNON CORPORATION, Respondent. ZUCKERMAN-VERNON CORPORATION, Petitioner, v. STATE of Florida, DEPARTMENT OF REVENUE, Respondent.
    Nos. 50907, 50908.
    Supreme Court of Florida.
    Nov. 23, 1977.
    Rehearing Denied Jan. 31, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee and Harold F. X. Purnell, Asst. Atty. Gen., Tallahassee, for petitioner State of Florida, Dept, of Revenue.
    William L. Rogers, of Snyder, Young, Stern, Barrett & Tannenbaum, North Miami Beach, for respondent Zuckerman-Ver-non Corp.
   SUNDBERG, Justice.

This cause consists of consolidated petitions for writ of certiorari to review a decision of the District Court of Appeal, First District, reported at 339 So.2d 685. In Case No. 50,907, petitioner, Department of Revenue, alleges the district court’s decision to be in conflict with Dominion Land and Title Corporation v. Department of Revenue, 320 So.2d 815 (Fla.1975), and Associated Dry Goods Corp. v. Department of Revenue, 335 So.2d 832 (Fla. 1st DCA 1976), upon the issues of: (1) whether imposition of the 100% penalty assessment under Section 201.17(2), Florida Statutes (1975), is mandatory; and (2) whether the district court’s reduction of the 100% penalty from $55,-649.70 to $5,000 was proper in the instant case. In Case No. 50,908, petitioner, Zuckerman-Vernon Corporation, alleges that the same district court decision conflicts with River Park Joint Venture v. Dickinson, 303 So.2d 654 (Fla. 1st DCA 1974), upon the issue of whether conveyance of the property in question was by a trustee not pursuant to a sale and, therefore, was exempt from the documentary stamp tax. We have jurisdiction, Article V, Section 3(b)(3), Florida Constitution. Pursuant to Fla.App. Rule 2.1a.(2)(a), these cases were consolidated for consideration.

The relevant facts were articulated in the district court’s opinion:

Zuckerman-Vernon Corp. has petitioned for review of the Department’s assessment of documentary stamp taxes in the amount of $55,649.70 and a penalty in the same amount for petitioner’s failure to affix documentary stamps to a deed from Bayshore 21, Inc., to petitioner and its joint venturer, Marvin Glick. . . . Petitioner insists that the conveyance from Bayshore to the joint venturers on August 27, 1973, was but part of the same transaction in which Bayshore acquired the property [on] August 23, 1973, as trustee for the joint venturers. Documentary stamps in the appropriate amount were affixed to the earlier deed.
Petitioner urges that the joint ventur-ers provided Bayshore all the cash required for its acquisition of the property, personally guaranteed Bayshore’s mortgage notes and intended that Bayshore should hold only a paper title for the brief period necessary to arrange Bay-shore’s financing on the strength of the guarantors’ credit. The joint venture agreement dated August 23, to which Bayshore was not a party, recited that Bayshore “has taken title” as trustee. The hearing officer noted that interest rates at the time were higher than those which could lawfully be contracted for by an individual.
The hearing officer found as facts that Bayshore contracted to buy in its corporate name, not as trustee or in another representative capacity, placed $500,-000.00 earnest money in escrow when executing the purchase and sale agreement, and took title in its own name, not as trustee. The hearing officer found it was Bayshore’s funds, borrowed or otherwise, which made the purchase possible and found no evidence of an express trust relationship between Bayshore and the joint venturers. She further found no evidence that Glick provided Bayshore with cash to secure the purchase and sale agreement or, if he did, that he did so as petitioner’s joint venturer rather than as Bayshore’s principal. 339 So.2d 685, 686.

The district court found competent, substantial evidence to support the hearing officer’s determination that Bayshore had not acquired the property as trustee for the joint venture. Therefore, the exemption for a conveyance by a trustee not pursuant to a sale was held inapplicable and the documentary stamp tax assessment was upheld. However, the district court reduced the penalty assessment of $55,649.70, noting:

Though petitioner’s proof failed, it took a substantial position and advanced it in good faith with significant supporting evidence. The question was fairly debatable. If the amount of the penalty assessed pursuant to § 201.17(2), F.S., is a matter generally within the discretion of the Department, the record contains no evidence that the Department exercised informed discretion before acting to assess a $55,649.70 penalty.
On this record, we find such a penalty unconscionable. Therefore, in the exercise of our equitable powers, we will permit assessment of a penalty in a lesser and reasonable amount necessary for protection of the State’s interest. Dominion Land & Title Corp. v. Department of Revenue, 320 So.2d 815, 818 (Fla.1975). A penalty of no more than $5,000 is appropriate. 339 So.2d 685, 687.

For the reasons hereinafter expressed, we approve that portion of the district court’s decision upholding the finding that the conveyance in issue constituted a sale subject to a documentary stamp tax assessment. However, we do not concur in that part of the decision which reduced the amount of the penalty, and, as later explained, we find that the tax (and therefore the penalty) was miscomputed due to an erroneous calculation of the consideration.

The hearing officer properly concluded that .no trust relationship existed between Bayshore and the joint venture. We are not persuaded by the taxpayer’s argument that a resulting trust arose out of the transaction. A resulting trust arises where one party pays the consideration for purchase of realty, but title is taken in the name of another. Pyle v. Pyle, 53 So.2d 312 (Fla.1951); Martin v. Wilson, 115 So.2d 573 (Fla. 1st DCA 1959). In the instant case, the evidence reflects that Bayshore purchased the property with its corporate funds. The taxpayer’s guarantee of Bay-shore’s mortgages on the property cannot be equated with payment of the purchase price necessary to establish a resulting trust. Bayshore was primarily liable on the guaranteed mortgages. Bayshore was relieved of this liability only upon satisfaction of the mortgages which occurred some three to four months after its conveyance of the property to the joint venture.

The taxpayer’s contention as to the existence of an express trust must fail for the reason succinctly stated in Columbia Bank for Cooperatives v. Okeelanta Sugar Cooperative, 52 So.2d 670, 672 (Fla.1951):

An express trust cannot exist unless there is an execution of an intention to create such a trust by the one having legal and equitable dominion over the property made subject to it. (Emphasis supplied)

The joint venture agreement which declared that Bayshore was holding the property in question as trustee for the joint venture, was executed between the taxpayer and Marvin Glick, the owner of the capital stock of Bayshore, on August 23, 1973. Glick, however, executed the agreement in his individual capacity; Bayshore was not a party to the agreement. Since Bayshore’s funds were used to purchase the property on August 17,1973, and Bayshore took title solely in its corporate name, it was impossible for the joint venture to create an express trust in its favor with Bayshore as trustee. The corpus of the trust, the property, was never within the legal or equitable dominion of the taxpayer or Marvin Glick until after Bayshore divested itself of title.

The hearing officer’s determination that Bayshore’s conveyance to the joint venture was for financial consideration is also supported by the record. The shifting of economic benefit and burden when the taxpayer took subject to the various mortgages at the time of the conveyance, constituted the consideration necessary to invoke the documentary stamp tax under Section 201.02(1), Florida Statutes (1975). Florida Department of Revenue v. De Maria, 338 So.2d 838 (Fla.1976); Kendall House Apartments, Inc. v. Department of Revenue, 245 So.2d 221 (Fla.1971). However, the Department miscalculated the amount of the consideration subject to the tax imposed by Section 201.02(1), Florida Statutes (1975). Tax was assessed by the Department predicated on a consideration of $18,550,000. This sum was arrived at by totaling the outstanding principal balance of mortgages encumbering the property at the time of the conveyance to the joint venture. The indebtedness to which the joint venture took subject was represented by (i) a mortgage payable to Prudential Insurance Company in the amount of $12,250,000 which encumbered the property at the time of conveyance from Arthree, Inc. to Bayshore; (ii) a mortgage payable to Security Mortgage Investors in the sum of $5,000,000 secured at the time of conveyance to Bay-shore; and (iii) a mortgage payable to Commercial Trading Company, Inc. in the sum of $1,300,000 likewise secured at the time of the conveyance to Bayshore.

The obligation of Bayshore to Security Mortgage Investors was unconditionally guaranteed at its inception by Irwin Zuck-erman, Melvin Zuckerman, Arthur Siegel, Harold Vernon, and Marvin Glick. Apparently the two Zuckermans, Siegel and Vernon were the principals in Zuckerman-Ver-non Corporation. Glick was the sole shareholder of Bayshore. The obligation of Bay-shore to Commercial Trading Company, Inc. was unconditionally guaranteed at its inception by the two Zuckermans, Siegel, Vernon, Glick, and Zuckerman-Vernon Corpora tion. By the terms of this latter guaranty the guarantors (i) waived any right to require the mortgagee to first proceed against Bayshore or pursue any other remedy, (ii) agreed to direct recourse against them, and (iii) unconditionally guaranteed payment and performance of the obligation. The instrument expressly acknowledged that the loan to Bayshore had been induced by the guarantees.

While it is apparent that the taxpayer had no obligation with respect to the Prudential and Security Mortgage Investors mortgages prior to the conveyance from Bayshore, it is equally apparent that an unconditional obligation on the part of the taxpayer to pay and perform according to the terms of the note and mortgage held by Commercial Trading Company, Inc. existed prior to that conveyance. Consequently, with respect to the Commercial Trading Company, Inc. obligation, there was no shifting of economic burden at the time of the conveyance from Bayshore. Although there may have been a change in the form of the obligation there was no change in its substance. The taxpayer was no more nor less obligated to pay and perform the obligation after the conveyance than before. This portion of the debt, then, is controlled by Straughn v. Story, 334 So.2d 337 (Fla. 1st DCA 1976), cert. discharged Straughn v. Story, 348 So.2d 954 (Fla.), filed July 15, 1977. In that case, as here, the taxpayer had unconditionally and fully guaranteed a mortgage obligation prior to accepting a conveyance of property subject to the lien of such mortgage. The district court correctly distinguished De Maria on the basis that there was no shifting of any burden of payment. It is clear, therefore, that it was improper for the Department to treat the $1,300,000 as consideration or assess documentary stamp tax with respect thereto.

The taxpayer contends that imposition of the 100% penalty pursuant to Section 201.17(2), Florida Statutes (1975), for failure to affix proper documentary stamps to a deed of conveyance is discretionary with the Department. Neither the language of Section 201.17(2) nor the decisions interpreting that provision support the taxpayer’s proposition. In Dominion Land and Title Corporation v. Department of Revenue, supra, this Court stated that:

That section requires payment of a penalty equal to the excise tax due upon recording of any document, instrument or paper, which penalty is in addition to payment of the taxes owed but not paid at the time of recording. (Emphasis supplied) 320 So.2d 815, 816.

Accord, Associated Dry Goods Corporation v. Department of Revenue, supra. It is evident, therefore, that imposition of the 100% documentary stamp penalty pursuant to Section 201.17(2), Florida Statutes (1975), is mandatory.

The taxpayer alternatively suggests that Ch. 77-281, Laws of Florida, rather than Section 201.17(2), Florida Statutes (1975), controls as the former constitutes the prevailing law at the time of appellate disposition. Ch. 77-281, Laws of Florida, amended Section 201.17(2) to provide for a 100% penalty “[i]f it is determined by clear and convincing evidence that any part of a deficiency is due to fraud.” In all other cases, a penalty equal to 25% of the purchase price of the stamps not affixed shall be assessed. The taxpayer’s contention is without merit. Ch. 77-281, Laws of Florida, provides that its provisions shall be effective July 1, 1977. In the instant case, the Department assessed the penalty against the taxpayer in 1973, prior to the effective date of Ch. 77-281. It is a well-established rule of construction that in the absence of clear legislative intent to the contrary, a law is presumed to act prospectively. United States v. Estate of Donnelly, 397 U.S. 286, 90 S.Ct. 1033, 25 L.Ed.2d 312 (1970); Bruner v. United States, 343 U.S. 112, 72 S.Ct. 581, 96 L.Ed. 786 (1952); Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977); Keystone Water Co. v. Bevis, 278 So.2d 606 (Fla.1973). The 1977 Legislature’s inclusion of an effective date of July 1, 1977, in Ch. 77-281 effectively rebuts any argument that retroactive application of the law was intended. Furthermore, it is implicit in subparagraph (3) that the Department has no authority to compromise any assessment which had become final on the effective date of Ch. 77-281.

The Department properly concedes the inherent power of the courts to reduce or modify a documentary stamp tax penalty imposed pursuant to Section 201.-17(2), Florida Statutes (1975). This Court indisputably recognized the existence of this equitable power in Dominion Land and Title Corporation v. Department of Revenue, supra. The Department argues, however, that the equities of the case at bar did not warrant reduction of the penalty assessed against the taxpayer. We agree with the Department. The facts of this case fail to disclose any equities materially different from those advanced in Dominion Land and Title Corporation v. Department of Revenue, supra, where the Court upheld imposition of the 100% penalty. The appellant in Dominion handled the closing of a real estate transaction and acted as the title insuring agent for its principal. At the time of closing, appellant had received sufficient funds from its principal to cover all recording costs, including the necessary documentary stamps. However, when preparing a list of the approximate fees and taxes due upon recordation of the documents involved in the transaction, appellant inadvertently omitted an amount for purchase of the requisite tax stamps. Despite appellant’s good faith failure to record the deed with the appropriate tax stamps affixed thereto, we found insufficient equities to warrant reduction of the $21,230 penalty assessed pursuant to Section 201.17(2).

Nor is this case significantly different from Associated Dry Goods Corp. v. Department of Revenue, supra, where the 100% penalty was sustained. There, the appellant operated department stores within the state of Florida. A major portion of appellant’s sales were made pursuant to revolving charge accounts, upon which no documentary stamp taxes were paid. The Department of Revenue assessed a tax upon the charge account obligations pursuant to Section 201.08(2), Florida Statutes (1975), and a penalty in like amount under Section 201.17(2), Florida Statutes (1975). On review in the District Court of Appeal, First District, appellant noted that Section 201.-08(2) provides that no documentary stamps are required to be attached to obligations to pay, executed under retail charge accounts. Therefore, the provisions of Section 201.-17(2)(b), Florida Statutes (1975), which states that “[p]ayment of penalty to the Department of Revenue equal to the purchase price of the stamps not affixed ” were inapplicable, since the subject stamps were not required to be affixed. (Emphasis supplied)

The district court in Associated failed to accept appellant’s interpretation of Section 201.17(2)(b), Florida Statutes (1975). Although a literal interpretation of Sections 201.08(2) and 201.17(2)(b) supported appellant’s position, the court construed the latter provision to be inconsistent with appellant’s contention, holding that:

[T]he legislature intended that those who failed to timely purchase required documentary stamps, whether same were to be “affixed” to a deed or “not affixed” to a charge slip, would be subject to a penalty in the amount not timely purchased. 335 So.2d 832, 834.

The legislative intent as discerned by the district court, therefore, was held to prevail over appellant’s literal reading of the statutes.

Assuming the taxpayer’s good faith belief that the transfer from Bayshore to the joint venture was exempt from the documentary stamp tax, such belief, without more, will not warrant reduction of the penalty. In addition, the fact that the amount of the penalty was $55,649.70 does not, alone, support the taxpayer’s contention that the assessment was inequitable. Under Section 201.17(2), Florida Statutes (1975), the percentage penalty is the same in each case- — it increases in direct proportion to the amount of documentary stamps not affixed. Of necessity, therefore, the amount of the penalty will vary in each case depending upon the amount of tax stamps not affixed to the deed. We reject the proposition that a penalty should be reduced in one case and not in another solely because the former involved a failure to affix more tax stamps than the latter. Survival of state government requires strong measures to assure collection of taxes. Given this factor and the difficulties involved in collecting delinquent documentary stamp taxes, the legislature reasonably chose to impose a penalty equal to the amount of the tax not timely paid. See Dominion Land and Title Corporation v. Department of Revenue, supra.

Accordingly, the petition for writ of cer-tiorari is granted and that portion of the decision of the District Court of Appeal, First District, upholding the documentary stamp tax assessment is approved, subject to reduction of that part of the tax and penalty attributable to the $1,300,000 obligation. That portion of the decision reducing the penalty is quashed, and this cause is remanded to the district court for remand to the Department of Revenue with directions to reduce the tax and penalty assessment in accordance with this opinion.

It is so ordered.

ADKINS, Acting C. J., and BOYD, ENGLAND and HATCHETT, JJ., concur.

      . § 201.17(2), Fla.Stat. (1975), reads:
      “(2) Any document, instrument, or paper upon which the tax under this chapter is imposed and which, upon audit or at time of recordation, does not bear the proper value of stamps shall subject the person or persons liable for the tax upon the document, instrument or paper to:
      (a) Purchase of the stamps not affixed; and
      (b) Payment of penalty to the Department of Revenue equal to the purchase price of the stamps not affixed. This penalty is to be in addition to, and not in lieu of any other penalty imposed by law.”

      . § 201.02(1), Fla.Stat. (1975), reads:
      “(1) On deeds, instruments, or writings whereby any lands, tenements, or other realty, or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser, or any other person by his direction, on each $100 of the consideration therefor the tax shall be 30 cents. When the full amount of the consideration for the execution, assignment, transfer, or conveyance is not shown in the face of such deed, instrument, document, or writing, the tax shall be at the rate of 30 cents for each $100 or fractional part thereof of the consideration therefor.”
      This section has been interpreted as inapplicable to a trustee’s conveyance of bare legal title to an interest in realty, without consideration, to the equitable owner thereof. River Park Joint Venture v. Dickinson, supra.

      . For the purpose of clarity, Zuckerman-Ver-non Corporation will hereinafter be referred to as the taxpayer, and the Department of Revenue, as the Department.

      . Ch. 77-281, Laws of Florida, reads:
      “Section 1. Subsections (2) and (3) of section 201.17, Florida Statutes, 1976 Supplement, are amended to read:
      “201.17 Penalties for failure to pay tax required.—
      (2) Any document, instrument, or paper upon which the tax under this chapter is imposed and which, upon audit or at time of recordation, does not bear the proper value of stamps shall subject the person or persons liable for the tax upon the document, instrument, or paper to:
      (a) Purchase of the stamps not affixed.
      (b) Payment of a penalty to the Department of Revenue equal to 25 percent of the purchase price of the stamps not affixed. If it is determined by clear and convincing evidence that any part of a deficiency is due to fraud, there shall be added to the tax as a civil penalty, in lieu of the aforementioned penalty under this paragraph, an amount equal to 100 percent of the deficiency. These penalties are to be in addition to, and not in lieu of, any other penalties imposed by law.
      (c)Payment of interest to the Department of Revenue, accruing from the date of recor-dation until paid, at the rate of 1 percent per month or fraction thereof, based on the purchase price of the stamps not affixed.
      (3) The department may compromise any penalty on any proposed assessment which has not become final on the effective date of this act if its investigation reveals that the penalty would be too severe or unjust.
      “Section 2. This act shall take effect July 1, 1977.”

      . § 201.08(2), Fla.Stat. (1975), reads:
      “(2) On promissory notes, nonnegotiable notes, written obligations to pay money, or other compensation, made, executed, delivered, sold, transferred, or assigned in the state, in connection with sales made under retail charge account services, incident to sales which are not conditional in character and which are not secured by mortgage or other pledge of purchaser, the tax shall be 15 cents on each $100 or fraction thereof of the gross amount of the indebtedness evidenced by said instruments, payable quarterly on such forms and under such rules and regulations as may be promulgated by the Department of Revenue. No documentary stamps shall be required to be attached to instruments under the provisions of this subsection.”


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Petitioner, v. William T. MAYO, etc., Respondent.
    No. 50484.
    Supreme Court of Florida.
    Nov. 30, 1977.
    Rehearing Denied Feb. 21, 1978.

      Alan E. DeSerio and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for petitioner.
    Prentice P. Pruitt, Legal Director, and Norman H. Horton, Jr., Staff Counsel, Tallahassee, for respondent.
    Bernard C. Pestcoe and James B. Curasi of Pestcoe & Payton, Miami, for Fla. Road Building and Const. Aggregates Hauling and Safety Conference, intervenor.
   BOYD, Justice.

The Florida Department of Transportation has brought a petition for certiorari in this Court to have quashed Order No. 13072 of the Public Service Commission. We have jurisdiction. Article Y, Section 3(b)(3), Florida Constitution. The issue in this case is whether the Public Service Commission may establish, through its power to regulate the safety of operations of motor carriers, a minimum rate schedule for motor carriers of road building and construction aggregates.

The Florida Road Building and Construction Aggregates Hauling and Safety Conference is an organization of motor carriers that haul road building materials (aggregates), such as sand, gravel, limestone, crushed rock, clay and fill dirt. The Conference filed a Petition for Recognition with the Public Service Commission. During the Recognition Proceedings the Conference requested that the Commission establish minimum rates for all motor carriers of road building and construction aggregates to ensure that the carriers’ operations were safe. According to the aggregates carriers, the competition in their industry had become so fierce that, in order to remain in business, carriers were avoiding costs necessary to maintain their hauling vehicles in safe condition, thus endangering public safety. Fearing that the establishment of minimum rates would raise the cost of hauling services by 25%, and in turn the state’s cost in road construction by 16.7%, the Department of Transportation, which oversees the building of Florida roads, intervened in the proceedings to oppose the minimum rates. The Department premised its opposition on Commission lack of authority to set rates for carriers of road building aggregates. The Commission, by a 2-1 vote, did not agree with the Department and, instead, entered two orders in the cause. In Order No. 12562 it found it contrary to public interest in safety for the carriers’ rates to be subject to unlimited competition. After hearings on setting minimum rates, at which the Department appeared, the Commission entered Order No. 13072 establishing a minimum rate schedule.

The Department’s petition for certiorari followed. The Conference has been granted leave to intervene in the proceedings before this Court in support of the Commission.

The Department concedes that the Public Service Commission is vested with regulatory authority over the safety of operations by motor carriers of road building aggregates, as it clearly is. Section 323.07, Florida Statutes. The Department insists, however, that such authority does not include rate-fixing because carriers of road building aggregates are exempted by subsection (4) of Section 323.08 from the Commission’s power, provided by subsections (1) and" (2) of Section 323.08, to fix motor carrier rates. The Commission responds that the Department is confusing the separate issues of safety regulations and rate-fixing. In the view of the Commission this ease concerns safety regulation alone. And, since subsection (4) of Section 323.08 does not expressly exempt the aggregates carriers from the Commission’s power to set minimum rates in the interest of safety, then the Commission, by its action in this case, has not overstepped its bounds set by the Legislature. The Conference bolsters the Commission’s position with its assertion that the Legislature, by its enactment of Section 323.07, intended -to confer broad powers on the Commission when public safety is at stake.

Our analysis begins with the recognition that the Public Service Commission was created and exists through legislative enactment. Being a statutory creature, its powers and duties are only those conferred expressly or impliedly by statute. City of West Palm Beach v. Florida Public Service Commission, 224 So.2d 322 (Fla.1969). Southern Gulf Utilities Inc. v. Mason, 166 So.2d 138 (Fla.1964). And any reasonable doubt as to the existence of a particular power of the Commission must be resolved against it. City of Cape Coral v. GAC Utilities Inc. of Florida, 281 So.2d 493 (Fla.1973).

The intent of .the Legislature cannot be clearly gleaned from the statute. But we think there is at least reasonable doubt that the Legislature intended to confer on the Commission authority to set- minimum rates in the interest of safety for carriers of road building aggregates when the aggregates carriers are specifically exempted from the Commission’s rate-fixing power. The provision for the Commission’s safety regulation over motor carriers is a general one stating simply that the Commission may “regulate . . . the safety of each such motor carrier [operating under authority of Chapter 323, Part I, Florida Statutes].” Section 323.07, Florida Statutes. In contrast, Section 323.08(4) specifically exempts the aggregates carriers from the Commission’s power to make reasonable, through the detailed rate-fixing procedure of Section 323.08, those motor carrier rates found unreasonable by the Commission. This exemption evinces legislative intent that the aggregates carriers’ rates be subject to competition and free of the Commission’s rate-fixing powers. This intent controls our decision in favor of the Department because it creates a reasonable doubt as to whether the Commission has the power the Conference has requested it exercise.

Our decision does not impede the Commission from requiring that the aggregates carriers maintain their hauling vehicles in safe condition. The Commission’s broad power of safety regulation, spoken of by the Conference, clearly exists in Section 323.07, Florida Statutes. It is just that the Commission, in light of the exemption from rate-fixing given to motor carriers of road building and construction aggregates, may not use rate-fixing as a means to achieve that end.

Nor should our decision lead to endangered public safety, since the competitive marketplace, through its unrestricted operation, should force out of business those carriers unable to operate safely at the competitive rate. If such a result is undesirable, then it is up to the Legislature to clearly provide the Commission with the power to fix minimum rates for the aggregates carriers. Until then the Commission may not set rates for the aggregates carriers since it does not have the power to do so.

Order No. 13072 is quashed and the cause is remanded to the Public Service Commission.

It is so ordered.

OVERTON, C. J., and SUNDBERG, HATCHETT and KARL, JJ., concur.

      . Commissioner Mayo dissented.

      . “The commission may . regulate the service and safety of operations of each such motor carrier [operating under the authority of Chapter 323, Part I, Fla.Stat.] . . . .”

      . “The provisions of subsections (1) and (2) of this section, and § 323.19, shall not be applicable to carriers of road-building and construction aggregates, and holders of limited common carrier certificates shall not be restricted with any requirements for domiciling equipment. This subsection shall not apply to motor vehicles having a load capacity of 10 tons or less.”

      . “(1) Every motor carrier holding a certificate of public convenience and necessity for common carriage shall maintain on file with the commission a schedule of the rates, fares, charges and classifications, if any, and a time schedule, if any, of all motor vehicles operated under such certificate. . . ”
      “(2) Whenever such rates or fares or time schedules are found to be unreasonable, the commission, upon its own motion, or upon complaint, shall upon hearing prescribe reasonable rates and time schedules to take the place of those found unreasonable, and such new rates shall be filed in place of the rates and schedules superseded. . .”

      . Order No. 12562 was not timely brought before this Court for review and indeed the Department seeks quashal of Order No. 13072 only. The rate-fixing problem of this case, nonetheless, was properly presented by the Department’s petition for certiorari since the Commission cannot issue a minimum rate schedule as done in Order No. 13072, without the authority to do so.


author: HATCHETT, Justice.

text:
    Patrick L. CARLILE, Petitioner, v. GAME & FRESH WATER FISH COMMISSION of the State of Florida, Respondent.
    No. 51036.
    Supreme Court of Florida.
    Nov. 30, 1977.
    Rehearing Denied Feb. 22, 1978.

      Jos. D. Farish, Jr. of Farish & Farish, West Palm Beach, for petitioner.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for respondent.
    Winifred Sheridan Smallwood and H. Reynolds Sampson, Gen. Counsel, Tallahassee for State of Fla. Dept, of Transp., ami-cus curiae.
   HATCHETT, Justice.

This cause is before us by Petition for Writ of Certiorari to review a decision of the Fourth District Court of Appeal reported at 341 So.2d 1015 (Fla. 4th DCA 1977) which directly conflicts with State Department of Transportation v. Chothen, 328 So.2d 574 (Fla. 3rd DCA 1976), on the issue of whether a tort action brought against the state or one of its agencies must be brought in the county wherein the agency maintains its principal headquarters. The Fourth District Court held that it must. We agree.

Petitioner, Patrick Carlile, was injured in a hunting accident in the J. W. Corbitt Wildlife Management Area. That area is under the control, regulation, and management of the Game and Fresh Water Fish Commission. Suit was filed in Palm Beach County, the site of the alleged wrong. Respondent moved to transfer the cause to Leon County, the site of its principal office, or in the alternative, to dismiss for improper venue. Motion was denied. On appeal, the Fourth District Court reversed and remanded with directions to transfer the cause to Leon County.

It has long been the established common law of Florida that venue in civil actions brought against the state or one of its agencies or subdivisions, absent waiver or exception, properly lies in the county where the state, agency, or subdivision, maintains its principal headquarters. Smith v. Williams, 160 Fla. 580, 35 So.2d 844 (1948) and Ringling Brothers—Barnum and Bailey Combined Shows v. State, 295 So.2d 314 (Fla. 1st DCA 1974). Such a rule promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.

Petitioner argues that the state has waived this privilege by enactment of Chapter 73-313 (codified as Section 768.28, Florida Statutes (1975)), the general waiver of tort immunity, and relies on the following language from the statute to support his position:

(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances.

In determining the meaning of a statute we must look to the intent of the Legislature in enacting that statute. We are guided in this effort by established rules of statutory construction. In 1973 the Legislature passed Chapter 73-313, Laws of Florida, codified as Section 768.28, Florida Statutes (1975), in order to authorize limited tort claims against the state. That statute is clearly in derogation of the common law principle of sovereign immunity and must, therefore, be strictly construed:

Statutes in derogation of the common law are to be construed strictly, however. They will not be interpreted to displace the common law further than is clearly necessary. Rather, the courts will infer that such a statute was not intended to make any alteration other than was specified and plainly pronounced. A statute, therefore, designed to change the common law rule must speak in clear, unequivocal terms, for the presumption is that no change in the common law is intended unless the statute is explicit in this regard. 30 Fla.Jur. Statute, Sec. 130.

Inference and implication cannot be substituted for clear expression. Dudley v. Harrison, McCready & Co., 127 Fla. 687, 173 So. 820 (1937).

The Legislature has, on several occasions, provided for general or specific waivers of sovereign immunity: Section 230.23(9)(d), Florida Statutes (1975); Section 337.19, Florida Statutes (1975); Section 455.06, Florida Statutes (1975); Section 768.15, Florida Statutes (1969); Section 768.28, Florida Statutes (1975). In two of these enactments the Legislature specifically provided for modification of the venue rule: Section 337.19(3) and Section 768.15(3).

Section 768.15(3), effective July 1, 1969, repealed July 1,1970, is of particular significance. This was the Tort Claims Act of 1969 and was the Legislature’s first experiment with the waiver of sovereign immunity in the area of torts. Subsection (3) provided that: “Actions under this section shall be brought in the county where the cause of action arose.” However, when the Legislature reenacted the statute in 1975, it excluded the venue provision. The change clearly evidences an intention on the part of the Legislature not to waive the common law privilege in the 1975 statute. In Arnold v. Shumpert, 217 So.2d 116 (Fla.1968), this Court stated:

The rule of construction, instead, is to assume that the Legislature by the amendment intended it to serve a useful purpose. Sharer v. Hotel Corp. of America, 144 So.2d 813, 817 (Fla.1962); Webb v. Hill, 75 So.2d 596, 603 (Fla.1954). Likewise, when a statute is amended, it is presumed that the Legislature intended it to have a meaning different from that accorded to it before the amendment, (at 119)

This principle is summarized in 30 Fla.Jur. Statutes 97:

In making material changes in the language of a statute, the Legislature is presumed to have intended some objective or alteration of the law, unless the contrary is clear from all the enactments on the subject. The Courts should give appropriate effect to the amendment. The omission of a word in the amendment of a statute will be assumed to have been intentional. And, where it is apparent that substantial portions of a statute have been omitted by process of amendment, the courts have no express or implied authority to supply omissions that are material and substantive, and not merely clerical and inconsequential.

Reference to the title of the legislative act is also appropriate in determining legislative intent. The title to Chapter 73-313, Laws of Florida reads:

An act relating to claims against the state; authorizing suits against the state or any of its agencies or political subdivisions for the tortious acts of their employees; providing a definition; providing for assistance; providing for appeals; providing for maximum claims; providing for notice; providing for cert; providing a maximum on attorney’s fees; providing that officers and employees shall not be personally liable; providing the limitations of this act shall not apply when the entity has insurance; providing that the state or its agencies or subdivisions may purchase insurance if allowed by law; providing that claims must be filed within a certain period; providing that no action may be brought under certain circumstances; providing an effective date.

Clearly, the title makes no reference to the issue of venue. In the absence of such a statement in the'title we must conclude that venue was not intended to be covered, Curry v. Lehman, 55 Fla. 847, 47 So. 18 (1908), or that the act is unconstitutional for failure to give notice of subject matter. (Article III, Section 6, Florida Constitution.)

The trial court, in holding that suit was properly brought in Palm Beach County relied upon State Department of Transportation v. Chothen, supra. In that case the Third District Court held that by enactment of Section 768.28, Florida Statutes (1975), the Legislature authorized the application of the general venue statute in tort actions against the state. In addition, the Chothen court extended the “sword-wielder” exception announced in Department of Revenue v. First Federal Savings and Loan Ass’n of Ft. Myers, 256 So.2d 524 (Fla. 2nd DCA 1971) from regulatory actions to torts. For the reasons stated herein we reject the Chothen reasoning and overrule that case.

The so called “sword-wielder” doctrine applies only in those cases where the official action complained of has in fact been or is being performed in the county wherein the suit is filed, or when the threat of such action in said county is both real and imminent. The Court in First Federal stated:

The question to be answered in these cases may be said to be whether the state is the initial sword-wielder in the matter, and whether the plaintiff’s action is in the nature of a shield against the state’s thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on. (at 526)

This exception to the common law privilege of venue is limited to those cases wherein the primary purpose is to obtain direct judicial protection from an alleged unlawful invasion of the constitutional rights of the plaintiff within the county where the suit is instituted, because of the enforcement or threatened enforcement by a state agency of a statute, rule or regulation alleged to be unconstitutional as to the plaintiff, and where the validity or invalidity of the statute, rule or regulation sought to be enforced comes into question only secondarily and incidentally to the main issue involved. Smith v. Williams, 160 Fla. 580, 35 So.2d 844 (1948); Gay v. Ogilvie, Fla., 47 So.2d 525 (1950); Ringling Brothers—Barnum and Bailey Combined Shows v. State, supra. The rule is succinctly stated in 34 Fla.Jur. Venue Sec. 27 as follows:

It is the policy of this state to require that its officials and boards be sued in the county of their official residence, unless this privilege is waived. . . . Under exceptional circumstances, a complainant may be entitled to sue a public official or board in a county other than that of his or its official residence. One recognized exception to the rule exists where an unlawful invasion of a lawful right secured to the plaintiff by the Constitution or laws of the jurisdiction is directly threatened in the county where the suit is instituted. Parties seeking relief from alleged threats to their personal and property rights by the operation of unconstitutional acts of an agency of the state may bring suit in the county where the alleged wrongs are threatened or alleged to have been committed. But in the absence of waiver on the part of a state agency of its right, and in the absence of action bringing it within the exceptions to the rule, an action brought against a state agency other than that of its official residence is subject to dismissal. (emphasis added)

The sword-wielder exception does not, nor was ever intended, to encompass allegations of negligence and was therefore misapplied in Chothen.

We now hold that the Legislature did not intend to waive the common law privilege of bring sued in Leon County with the enactment of Section 768.28, Florida Statutes (1975). Absent waiver or exception, venue in civil actions brought against the state or one of its subdivisions properly lies in the county where the state, agency, or subdivision, maintains its principal headquarters.

Accordingly, the decision of the Fourth District Court of Appeals is affirmed.

It is so ordered.

OVERTON, C. J., and BOYD and SUND-BERG, JJ., concur.

ADKINS, ENGLAND and KARL, JJ., dissent.


author: KARL, Justice.

text:
    David P. DEMAR, Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents.
    No. 52035.
    Supreme Court of Florida.
    Nov. 30, 1977.
    Rehearing Denied Feb. 22, 1978.
    Philip J. Padovano of Ruiz, Padovano & Schrader, St. Petersburg, for petitioner.
    Robert L. Shevin, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for respondents.
   KARL, Justice.

This cause is before us on writ of habeas corpus and return thereto. Article V, Section 3(b)(6), Florida Constitution.

Petitioner was charged, by information dated November 6, 1974, with having broken and entered a building other than a dwelling with the intent to commit a misdemeanor and, by information filed December 18, 1974, with the crime of grand larceny. He entered a plea of guilty to both charges, was convicted and was sentenced to two concurrent terms of six months to two years.

On May 26, 1977, the Florida Parole and Probation Commission entered its order granting parole to petitioner.

By letter dated May 30, 1977, petitioner was notified by the Parole and Probation Commission that he had been granted parole. He was scheduled to be released on parole June 21, 1977.

A disciplinary report dated June 1, 1977, was filed against petitioner by Ron Warren, a correctional counselor, charging petitioner with conspiracy or attempting to conspire with others to bring marijuana into the prison on May 29,1977. On June 2,1977, a copy of this disciplinary report was delivered to petitioner. Petitioner admitted, in a signed statement, that he assisted a resident in bringing the contraband into the prison. The disciplinary committee accepted petitioner’s plea of guilty and found him guilty as charged by his own admission.

Thereafter, the Florida Parole and Probation Commission, by order dated June 8, 1977, rescinded petitioner’s parole. By letter dated June 14,1977, petitioner was notified that the Commission had rescinded his parole.

Petitioner, in his petition for writ of ha-beas corpus, alleges that his parole was rescinded without prior notice and an adjudicatory hearing, that he was not present during any consideration of the rescission of his parole and that at no time was he offered the opportunity to present evidence, cross-examine adverse witnesses, be represented by counsel or obtain a transcript of the parole rescission determination.

This Court issued the writ, and return has been filed by respondents. In their return, respondents concede that petitioner did not have a hearing as contemplated by this Court’s decision in Means v. Wainwright, 299 So.2d 577 (Fla.1974).

We are here confronted with the identical question that was raised in Means v. Wainwright, supra, that is whether the rescission of petitioner’s unexecuted grant of parole without notice and an adjudicatory hearing violated his constitutional rights to procedural due process and equal protection of the law. Therein, this Court determined that with the exception of the preliminary hearing, the minimal due process requirements enumerated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), are to be applied in parole rescission proceedings once a person has been notified of his grant of parole, even though such grant has been unexecuted. In Means v. Wainwright, this Court reasoned:

“Cognizant of the fact that the instant case does not concern parole revocation, we nonetheless find that the rescission of the unexecuted grant of parole inflicted such ‘grievous loss’ on petitioner that he should have been accorded certain procedural protections prior to such rescission. . .
“The Supreme Court of the United States has decided that probationers and parolees are entitled to due process at revocation hearings. In applying this principle as set forth in Gagnon v. Scarpelli, supra [411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)], and Morrissey v. Brewer, supra, there is no difference relevant to the guarantee of due process between a revocation of parole and a rescission of parole. In the case sub judice, the Parole and Probation Commission acted without giving petitioner notice or a hearing by which he could have conveyed an excuse or an instance of mitigation which may have affected the decision for rescission.”

We adhere to our decision in Means v. Wainwright, supra, and find it to be controlling sub judice.

Accordingly, the writ of habeas corpus should issue and petitioner should be placed upon parole unless he is afforded a parole rescission hearing consistent with and conforming to the due process requirements set out in Morrissey v. Brewer, supra, within thirty days of the filing of this opinion.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD and ENGLAND, JJ., concur.


text:
    J. Ed STRAUGHN, etc., et al., Appellants, v. Harlan TUCK and Florence P. Tuck, his wife, Appellees.
    No. 50152.
    Supreme Court of Florida.
    Dec. 8, 1977.
    Rehearing Denied Feb. 23, 1978.

      Robert L. Shevin, Atty. Gen., and Caroline C. Mueller, Asst. Atty. Gen., Tallahassee, Robert J. Pierce, of Freeman & Wool-folk, Altamonte Springs, and Joe Horn Mount, County Atty., Sanford, for appellants.
    Harlan Tuck, of Giles, Hedrick & Robinson, Orlando, for appellees.
   HATCHETT, Justice.

Appellees own a 20 acre tract of unimproved land, zoned agricultural, but not so classified for tax purposes. In an action for declaratory judgment and injunc-tive relief, appellees sought to have their property reclassified and taxed agricultural for the years 1973 and 1974. Final judgment was entered in their favor, based on a finding that their land was denied agricultural classification pursuant to an unconstitutional statute, Section 193.461, Florida Statutes (1973) and was assessed without due regard to the dictates of Section 193.-011, Florida Statutes (1973). Because the trial court initially and directly ruled on the validity of a state statute we have jurisdiction. Article V, Section 3(b)(1). While we agree with the trial court that appellees’ land was not assessed in conformity with Section 193.011, we cannot agree that Section 193.461(3) is unconstitutional, either on its face or as applied to these appellees, and reverse the trial court’s judgment to the extent that it so holds.

The Legislature was given authority to grant special tax treatment to agricultural land pursuant to Article VII, Section 4, Florida Constitution (1968).

Section 4. Taxation; Assessments—

By general law a regulation shall be prescribed which shall secure a just valuation of all property for ad valorem taxation, provided: (1) agricultural land or land used exclusively for non-commercial recreational purposes may be classified by general law and assessed solely on the basis of character or use. (emphasis added)

It should be noted that the Constitution authorizes, but does not require the Legislature to provide preferential valuation of agricultural land, i. e., the Constitution is not self-executing. The Legislature has acted upon this authority, however, several times. Our present statute reads in pertinent part as follows:

(1) The [property appraiser] shall, on an annual basis, classify for assessment purposes all lands within the county as either agricultural or non-agricultural.
******
(3)(b) Subject to the restrictions set out in this section, only lands which are used primarily for bona fide agricultural purposes shall be classified agricultural. “Bona fide agricultural purposes” means good faith commercial agricultural use of the land. . . . Section 193.461, Florida Statutes (1975).

These sections were, in all significant respects, identical in the 1973 statute which governs in this case.

Appellees argue, and the trial court held, that subsection (3)(b) is unconstitutional “insofar as, but only insofar as it purports to redefine and limit the concept of agricultural land as it existed in 1967 and 1968 and became fixed in the Florida Constitution.” It is their contention that the Legislature improperly defined “agricultural land” by requiring commercial agricultural use of such land since the new Constitution was adopted by the people with a broader concept in mind.

Appellees suggest that in 1967 and 1968 it was the nature of the land that was determinative, not the use to which the land was put. We cannot agree. Clearly, in order to qualify for preferential agricultural classification prior to 1968 one had to prove agricultural “use.” Florida’s original “Greenbelt Law,” Chapter 59-226, Laws of Florida (1959) extended preferential treatment to lands “used exclusively for agricultural purposes . . .” and all subsequent enactments have been consistent, at least with reference to the use requirement. In the leading case on this subject, the Fourth District Court of Appeal unequivocally stated:

The favorable tax treatment provided by this statute is predicated on land use, that is, physical activity conducted on the land. (Footnotes omitted) Under the terms of this statute, as we understand them, if the land is physically used for agricultural purposes, it must be accorded agricultural zoning, provided the use is primarily for bona fide agricultural purposes. Hausman v. Rudkin, 268 So.2d 407 (Fla. 4th DCA 1972).

In accord see Smith v. Parrish, 262 So.2d 237 (Fla. 1st DCA 1972) and Smith v. Ring, 250 So.2d 913 (Fla. 1st DCA 1971).

In 1972, Section 193.461 was substantially modified by Chapter 72-181, Laws of Florida (1972). However, as evidenced by subsection (3)(b) of the statute, “use” is still the guidepost in classifying land, although other specifically enumerated factors relative to use may also be considered. Agricultural use is now and has always been the test. “Commercial agricultural use” simply adds another factor, i. e., profit or profit motive, which may be considered by the tax assessor in determining whether or not a claimed agricultural use is bona fide. It does not, as appellees suggest, limit agricultural classification to commercially profitable agricultural operations. In Walden v. Tuten, 347 So.2d 129 (Fla. 2nd DCA 1977), the Second District Court of Appeal addressed this issue and held:

We think, therefore, that profit motive is a relevant consideration in determining whether a given agricultural use is in fact a bona fide “commercial” use. Such a motive would certainly be one of the “other factors as may . . . become applicable” within the contemplation of subsection (7) of the aforequoted factors listed under subsection (3)(b) of Section 193.461, supra.

For the reasons expressed above, we find Section 193.461(3)(b) constitutionally sound.

Tax assessors are constitutional officers and as such their actions are clothed with the presumption of correctness. One asserting error on the part of the tax assessor must show by “proof” that every reasonable hypothesis has been excluded which would support the tax assessor. Powell v. Kelly, 223 So.2d 305 (Fla.1969). Appellees have failed to meet this burden. Appellees’ land is in its natural, unimproved state. There is ample evidence upon which the tax assessor could have found that the land was not being used for an agricultural purpose.

As to appellees’ second point, relative to assessment under Section 193.011, Florida Statutes (1973), we must agree that the tax assessor failed to consider all factors enumerated in the statute in arriving at a just valuation of appellees’ property. Section 193.011 provides as follows:

In arriving at just valuation as required under Sec. 4, Art. VII of the State Constitution, the tax assessor shall take into consideration the following factors:
(1) The present cash value of the property;
(2) The highest and best use to which the property can be expected to be put in the immediate future and the present use of the property;
(3) The location of said property;
(4) The quantity or size of said property;
(5) The cost of said property and the present replacement value of any improvements thereon;
(6) The condition of said property;
(7) The income from said property; and
(8) The net proceeds of the sale of the property, as received by the seller, after deduction of all of the usual and reasonable fees and costs of the sale, including the costs and expenses of financing.

Under decisions of this Court a tax assessor must consider each factor enumerated in the statute, although he may assign to each factor such weight as he deems proper. Failure to consider any element listed necessitates the setting aside of his evaluation. Lanier v. Walt Disney World, 316 So.2d 59 (Fla. 4th DCA 1975).

More specifically, the tax assessor in this case failed to consider the “present use” of appellees’ property, in determining the “highest and best use” to which the property could be expected to be put in the “immediate future.” Section 193.011(2). Rather, he valued it by subjective standards, using speculative factors, assuming there would be a zoning change and the land converted to a more intensive use. Within the general area of the appellees’ land large tracts of similar land were being sold far above any realistic agricultural land values for development of multi-family projects and other commercial enterprises. By his own admission, the assessor did not consider whether these comparable sales were contingent on zoning changes. Most were. The uses under the statute must be immediate, not speculative, and not predicated on conversion to higher or better uses. Lanier v. Overstreet, 175 So.2d 521 (Fla.1965). Present use and immediate future use are strongly influenced by zoning and zoning must, therefore, be considered by the assessor in his determination of just valuation. Lanier v. Walt Disney World Co., supra.

Accordingly, we reverse in part and affirm in part and remand to the trial court for action consistent with the opinions expressed herein.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG and KARL, JJ., concur.

      . Chapter 69-55, Laws of Florida, 1969
      Chapter 72-181, Laws of Florida, 1972
      Chapter 74-234, Laws of Florida, 1974

      . ... In determining whether the use of the land for agricultural purposes is bona fide, the following factors may be taken into consideration:
      (1) The length of time the land has been so utilized;
      (2) Whether the use has been continuous;
      (3) The purchase price paid;
      (4) Size, as it relates to specific agricultural use;
      (5) Whether  an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices;

        (6) Whether such land is under lease and, if so, the effective length, terms, and conditions of the lease; and
      (7) Such other factors as may from time to time become applicable. Section 193.461, Florida Statutes (1975).


author: PER CURIAM.

text:
    Vallen James TRUMPS, Appellant, v. STATE of Florida, Appellee. James Lester THOMAS, Appellant, v. STATE of Florida, Appellee.
    Nos. 51056 and 51145.
    Supreme Court of Florida.
    Dec. 8, 1977.
    Rehearing Denied Feb. 23, 1978.
    Elton Wm. Killam, Isaac B. Koran and Lynn A. Williams, Asst. Public Defenders, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky and Patti Englander, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Laird v. State, 342 So.2d 962 (Fla.1977).

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., and DREW (Retired), J., concur.


author: ENGLAND, Justice.

text:
    MOBIL OIL CORPORATION, Shell Oil Company, Marathon Oil Company, Continental Oil Company, Phillips Petroleum Company, Atlantic Richfield Company and Cities Service Company, Appellants, v. Robert L. SHEVIN, Attorney General, State of Florida, Appellee.
    No. 51287.
    Supreme Court of Florida.
    Dec. 8, 1977.
    Rehearing Denied Feb. 22, 1978.

      Andrew J. Kilcarr and Maureen O’Bryon of Donovan, Leisure, Newton & Irvine, Washington, D.C., Thomas R. Trowbridge, III, Charles F. Rice, New York City, and John A. Madigan, Jr. and Jack M. Skelding, Jr., of Madigan, Parker, Gatlin, Swedmark and Skelding, Tallahassee, for appellants.
    Robert L. Shevin, Atty. Gen., and William C. Sherrill, Jr., Chief Trial Counsel and Charles R. Ranson, Asst. Atty. Gen., Tallahassee, for appellee.
   ENGLAND, Justice.

This case is brought to us on direct appeal from an order of the Leon County Circuit Court holding that the Attorney General of the State of Florida had autonomous authority to initiate a federal antitrust lawsuit in federal court on behalf of the state and its agencies, or alternatively that such authority was retroactively conferred by a resolution of the Florida Cabinet. The trial court action was instituted by Mobil Oil Corporation and six other oil companies (collectively “Mobil”) for declaratory and injunctive relief to prevent the Attorney General from continuing his prosecution of an ongoing federal antitrust suit against them, in which the identical question as to his authority had been decided adversely to them by the Fifth Circuit Court of Appeals.

The threshold question for our determination is raised on a cross-assignment of error by the Attorney General, who contends that his motion to dismiss this action in the circuit court should have been granted on the ground of collateral estoppel. We agree. Collateral estoppel, or estoppel by judgment, is a judicial doctrine which in general terms prevents identical parties from relitigating issues that have previously been decided between them. The essential elements of the doctrine are that the parties and issues be identical, and that the particular matter be fully litigated and determined in a contest which results in a final decision of a court of competent jurisdiction. All of these elements are present here.

Mobil does not contend that the parties or issues are different in this proceeding from the parties and issues in the Fifth Circuit Court of Appeals. Rather, it argues that collateral estoppel is inapplicable because the federal court decision was not “final”. For this proposition, Mobil relies on a statement in the majority opinion of the Fifth Circuit suggesting that the court’s evaluation of the Attorney General’s authority was merely tentative because “only the Florida Supreme Court can decide this state law question in a manner that is, by definition, correct.”

The position Mobil asserts is untenable. Notwithstanding any acknowledgment of this Court’s preeminence on questions of Florida law, there is nothing tentative about the Fifth Circuit’s decision that, as between these parties, the Attorney General of Florida had standing to initiate and prosecute this federal antitrust suit. Of controlling significance is the legal effect of that court’s determination, not what was incidentally said. Mobil does not deny that the issue of the Attorney General’s authority was fully and effectively litigated in a proceeding which culminated in a written opinion of the Fifth Circuit Court of Appeals, nor that certiorari was sought to review that decision in the United States Supreme Court and denied. It necessarily follows, then, that as between these parties in this lawsuit, that issue is conclusively determined.

Mobil does not suggest that the same issue could be relitigated in any other federal court, or in the courts of any other jurisdiction. It contends, however, that the issue can be relitigated in Florida because the Florida Supreme Court has the ultimate authority to decide the standing of the Attorney General of Florida to initiate lawsuits, and for that reason the Florida Supreme Court should be given an opportunity to speak to that issue. We find no fault with the first part of Mobil’s contention, and if the matter came to us in a proper case there is no doubt that our decision on our Constitution’s grant of authority to the Attorney General of Florida would be binding precedent not only in Florida but in any other jurisdiction where the question might later be litigated. That fact, however, does not substantiate Mobil’s conclusion that we should now address the issue. The Fifth Circuit’s determination that the Attorney General had standing to initiate this federal anti-trust litigation does not bind this Court to a like determination in any other proceeding. Consequently, that decision neither presents a reason for us to pass on the issue nor poses a threat to our jurisprudence if we do not.

Our action in this cause follows well-established doctrine. As a matter of comity, courts of competent jurisdiction have routinely applied the law of other jurisdictions when required to do so for the purpose of their own litigation. Collateral estoppel has traditionally operated to preclude litigants from relitigating the same issue not only in the same, but as well in a different forum. Clearly, then, the Fifth Circuit’s decision is the law of this case.

Some years ago, the State of Florida initiated the process of “certification”, by which federal appellate courts may certify to this Court questions of Florida law that are “determinative of [the] cause” and for which there are “no clear controlling precedents” in the decisions of this Court. Before that jurisprudential innovation, it was common for federal courts to resolve issues of Florida state law in proceedings which required such determinations. There was, of course, the doctrine of abstention, by which the federal courts voluntarily declined to pass on unsettled questions of state law and directed the parties to file a declaratory proceeding in the state court system for a definitive resolution of the issue. The certification process was initiated to eliminate both the expense and delay of abstention, by permitting the federal litigation to be abated while the doubtful question of state law was referred directly to the highest state court for resolution. As a tool of federal-state comity, the certification process has been well-received, and is now used generously in the federal system where permitted by state law.

The opportunity to certify to us the question of the Attorney General’s legal authority to institute a federal anti-trust suit was presented to the Fifth Circuit by Mobil. The court expressly declined the invitation, stating among other reasons that the point of law to be resolved on the basis of existing Florida law “does not seem . . . an extremely close one.” Mobil does not suggest that the Fifth Circuit’s decision not to certify a question is reviewable — plainly it is not — yet this lawsuit in state court is tantamount to a collateral attack on the Fifth Circuit’s exercise of its certification discretion. To permit that attack would invite serious problems of comity.

At the present time there are at least three initiatives available to a federal litigant faced with an unsettled question of state law. The litigant can, of course, have the matter resolved in the federal proceeding and be bound by the result in that lawsuit. Alternatively, the litigant can request the federal appellate court to use the certification process (where it is available) to obtain a definitive resolution from the highest state court. The federal appellate court may, but need not, choose to certify the particular issue; but if it does, the state court’s answer resolves the issue not only for that lawsuit but for all future litigants, state and federal. There is, as well, a third alternative for litigants. The litigants can request the federal trial court to stay its proceeding while a declaration of state law is obtained from the state courts. Since certification is not available from federal trial courts (at least in Florida) and no final judgment will have been entered at this early stage of the proceeding, the litigant would then be free to seek a binding resolution of the question in the state court system.

The third alternative was available to Mobil. The federal trial court in fact entered a stay, ostensibly to allow the Attorney General to pursue a declaratory action in the state court system on the question of his authority. He declined, and instead filed an abortive appeal in the federal appellate court. The opportunity was open to Mobil during that stay to have commenced the state declaratory action which it later initiated and now brings here. Apparently choosing to risk a federal court resolution of the question, Mobil is and should be bound both by its own tactical decision and by the federal court’s ruling.

The doctrine of collateral estoppel bars our present consideration of whether the Attorney General possessed autonomous authority to initiate an antitrust lawsuit in federal court. The trial judge erred in denying the Attorney General’s motion to dismiss the state court proceeding, and this case is remanded to that court for the purpose of entering an order dismissing with prejudice the declaratory action brought by Mobil Oil Corporation and the other appellants.

It is so ordered.

OVERTON, C. J., BOYD, SUNDBERG and HATCHETT, JJ., and DREW (Retired), J., concur.

KARL, J., dissents.

      . Jurisdiction here is predicated on the trial court’s construction of provisions of the Florida Constitution. Art. V, § 3(b)(1), Fla.Const.

      . State of Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266 (5th Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 92 (1976). Ten of the seventeen oil companies which are parties to the federal court action are not participating in this collateral litigation.

      . Gordon v. Gordon, 59 So.2d 40 (Fla.), cert. denied, 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680 (1952).

      . See, e. g., Seaboard Coast Line R.R. Co. v. Cox, 338 So.2d 190 (Fla.1976).

      . See, e. g., Gray v. Gray, 91 Fla. 103, 107 So. 261 (1926), where the doctrine of estoppel by judgment is distinguished from the doctrine of res judicata.

      . 526 F.2d at 274.

      . In re Sanford Fork and Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414 (1895). See also IB Moore’s Federal Practice para. 0.404[10] at 571 (2d ed. 1974).

      . U.S.Const., art. IV, § 1. See, e. g., Newton v. Newton, 245 So.2d 45 (Fla.1971).

      . Erie R.R. Co, v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907); State v. Dwyer, 332 So.2d 333 (Fla.1976); Miles Laboratories, Inc. v. Eckerd, 73 So.2d 680 (Fla.1954); Wright, The Federal Courts and the Nature and Quality of State Law, 13 Wayne L.Rev. 317, 323 (1967). We recognize, of course, that state courts are bound by federal court determinations of federal law questions. See, e. g., Ratner v. Arrington, 111 So.2d 82 (Fla.3d DCA 1959).

      . See, e. g., Hartford Accident & Indem. Co. v. City of Thomasville, 100 Fla. 748, 130 So. 7 (1930). See also the definition of “comity”, Black’s Law Dictionary 334 (rev. 4th ed. 1968), and Restatement (Second) of Conflict of Laws § 2, Comment a(3) (1971).

      . See United States Gypsum Co. v. Columbia Cas. Co., 124 Fla. 633, 169 So. 532 (1936).

      . Id. See also note 7 above.

      . Fla.App.R. 4.61. Certification was initiated by statute which authorized Supreme Court implementation by rule. Ch. 23098, § 1, Laws of Florida (1945), subsequently reenacted in its present form as § 25.031, Fla.Stat. (1975), by Ch. 57-274, Laws of Florida. Our rule was adopted in In re Florida Appellate Rules, 127 So.2d 444 (Fla.1961). The certification procedure was thoroughly discussed, and its constitutionality upheld, in Sun Ins. Office, Ltd. v. Clay, 133 So.2d 735 (Fla.1961).

      . First utilized in Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), this “well-established procedure” has been the focal point of much attention both in the opinions of the United States Supreme Court, see, e. g., Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959); Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943); and in the literature of the profession. See, e. g., Kurland, Toward a Co-operative Judicial Federalism: The Federal Court Abstention Doctrine, 24 F.R.D. 481 (1960); Wright, The Abstention Doctrine Reconsidered, 37 Tex.L.Rev. 815 (1959); Note, Abstention: An Exercise in Federalism, 108 U.Pa.L.Rev. 226 (1959).

      . See Note, Florida’s Interjurisdictional Certification: A Reexamination to Promote Expanded National Use, 22 U.Fla.L.Rev. 21 (1969).

      . See Lehman Bros. v. Schein, 416 U.S. 386, 390 & nn. 5-7, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974), resulting in a certification of the legal issues ultimately resolved in Schein v. Chasen, 313 So.2d 739 (Fla.1975).

      . 526 F.2d at 274.

      . Id. at 275.

      . Lehman Bros. v. Schein, 416 U.S. 386, 392-95, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974) (Rehnquist, J., concurring).

      . At oral argument, Mobil’s counsel conceded some uncertainty as to how a favorable determination from this Court would be of any practical benefit to its position in the federal litigation.

      . Both the rule (Fla.App.R. 4.61) and the statute (§ 25.031, Fla.Stat. (1975)) limit availability of certification to federal appellate courts. A eonase treatment of the purposes underlying this limitation may be found in Note, Inter-Jurisdictional Certification: Beyond Abstention Toward Cooperative Judicial Federalism, 111 U.Pa.L.Rev. 344, 360-61 (1963).

      . There are two additional alternatives available to the federal appellate courts but not the litigants. There are, of course, one or more forms of abstention. Also, as in Lee v. Bickell, 292 U.S. 415, 426, 54 S.Ct. 727, 78 L.Ed. 1337 (1934), and in Glenn v. Field Packing Co., 290 U.S. 177, 179, 54 S.Ct. 138, 78 L.Ed. 252 (1933), the appellate court could expressly leave open the possibility of modifying its decision if a later state court determination is made to the contrary. The Fifth Circuit Court of Appeals in this case neither abstained nor authorized a re-opening of its decision.

      . This appeal was dismissed without opinion by the Fifth Circuit for lack of a final order. 526 F.2d at 267-68.


text:
    Walter LASTITION, Petitioner, v. Jennie Ann LASTITION, Respondent.
    No. 50920.
    Supreme Court of Florida.
    Dec. 15, 1977.
    Rehearing Denied Feb. 20, 1978.
    John T. Christiansen of Christiansen, Jacknin & Myers, Palm Beach, Florida, for petitioner.
    Herbert L. Gildan and Thomas J. Yeager of Nason, Gildan & Yeager, West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ. Upon further consideration of the cause, we conclude that no direct conflict of decisions exists as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD and ENGLAND, JJ., concur.

SUNDBERG, HATCHETT and KARL, JJ., dissent.


text:
    HIGH RIDGE MANAGEMENT CORP., etc., et al., Appellants, v. STATE of Florida et al., Appellees.
    No. 50827.
    Supreme Court of Florida.
    Dec. 22, 1977.
    Rehearing Denied Feb. 23, 1978.

      Elliot S. Shaw and Norman S. Segall of Shaw & Segall, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., Thomas M. Beason, Asst. Atty. Gen., and James G. Ma-horner, Tallahassee, for appellees.
   KARL, Justice.

This cause is before us on direct appeal from an order of the Circuit Court, in and for Leon County, granting summary judgment for appellees and upholding the constitutional validity of Chapter 76-201, Laws of Florida, the Omnibus Nursing Home Reform Act of 1976, thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellants, operators of twenty-one licensed South Florida nursing homes, sought a declaratory judgment as to their rights under the Omnibus Nursing Home Reform Act of 1976, Chapter 76-201, Laws of Florida, and requested the court to enjoin the appellees from implementing the act. In their complaint, appellants alleged that the act, by title and content, violates Article III, Section 6, Florida Constitution, and is nothing more than a conglomeration of unrelated and confusing provisions and unconnected subjects; that Sections 6 and 7 of the act (referred to by appellants as public flogging), which deal with inspection, posting of results, and penalties, violate appellants’ procedural due process rights; that the portion of Section 7 of the act relating to the rating of nursing homes is an attempt by the State to seize control of the nursing home industry and to permit the State to endorse certain competitors and arbitrarily destroy others and, thereby, is a violation of appellants’ right to equal protection; that the Omnibus Act, as a whole, is a serious violation of substantive due process and is a serious attempt to interfere with, and take over, Florida’s nursing home business.

Summary judgment was granted in favor of appellees. The trial court found that Chapter 76-201, Laws of Florida does not violate due process or equal protection requirements of the Florida and United States Constitutions; that the provisions of Section 400.121, Florida Statutes (1975), have not been nullified; that the Administrative Procedures Act guarantees the right of hearing; that it is premature to challenge any proposed rules; that the rating system, in itself, is not, per se, unconstitutional since the act does not set out any arbitrary or capricious classification, that there has been no unlawful delegation of legislative authority, that the act is not vague, and that it relates to a single subject matter.

Appellants appealed, and this Court has granted a constitutional stay writ staying implementation of the rating system as provided for in Section 7 of Chapter 76-201, Section 400.23(3) and (4), Florida Statutes (Supp.1976).

The sole question presented for our review by appellants is the constitutionality vel non of Section 7, Chapter 76-201, Laws of Florida, Section 400.23, Florida Statutes (Supp.1976), insofar as it purports to establish a rating system for nursing homes in this state. Although conceding the state’s right to regulate, inspect and license the nursing home industry pursuant to the state’s police power, appellants argue that a governmental rating system whereby licensed businesses are rated “AA,” “A,” “B,” “C” or “F,” is an unnecessary, unreasonable and arbitrary exercise of the state’s police power and that the rating system as established by Chapter 76-201, Laws of Florida, constitutes an unlawful delegation of legislative authority contrary to Article III, Section 1, Florida Constitution.

Section 7 of Chapter 76-201, Laws of Florida, provides in part:

“Not later than January 1, 1977, the department shall promulgate rules establishing uniform criteria for the evaluation of nursing home facilities with respect to their compliance with the standards set forth in this section, as indicated by inspection results. Such criteria shall include a detailed listing of the types, and degree of severity or unacceptability, of deficiencies which inspections might indicate, and shall also indicate areas of care and performance in which nursing home facilities notably and significantly exceed required minimum standards. In promulgating such criteria the department shall devise a system of rating nursing home facilities in accordance with the deficiencies and areas of significantly high care and performance which reports of inspection shall have indicated. Such a system shall include five rating categories entitled, from highest to lowest “AA,” “A,” “B,” “C,” and “F.” “F” rated nursing homes shall be nursing homes whose performance is sufficiently below minimum standards to require suspension, revocation, or denial of a license to operate. The rating assigned to each nursing home facility on the basis of its immediately prior inspection shall be deemed a part of the results and findings of that inspection, and shall be required by the department to be included in all advertising and conspicuously posted within and outside of the nursing home facility to which it applies. For purposes of review and comment, ratings assigned to facilities shall be forwarded by the department to the regional nursing home ombudsman committee in whose district the facility is located. A nursing home facility may appeal the assignment of a particular rating to the department within 20 days after notice of its assignment.
“No later than March 1, 1977, the department shall promulgate rules which relate the level of state vendor payments to nursing home facilities to the rating received by each nursing home facility under the provisions of subsection (3) so that facilities assigned higher ratings may receive higher levels of payment than those facilities assigned lower ratings after July 1, 1977. Such rules as are promulgated under this section shall be consistent with federal laws and regulations.

We find that the statutory provision in question constitutes an unlawful delegation of legislative authority since it does not contain objective guidelines and standards for its enforcement, and for this reason, it is unconstitutional.

In Smith v. Portante, 212 So.2d 298, 299 (Fla.1968), this Court reiterated:

“No matter how laudable a piece of legislation may be in the minds of its sponsors, objective guidelines and standards should appear expressly in the act or be within the realm of reasonable inference from the language of the act where a delegation of power is involved and especially so where the legislation contemplates a delegation of power to intrude into the privacy of citizens.”

This Court, in Dickinson v. State, 227 So.2d 36, 37 (Fla.1969), emphasized that statutes delegating power without adequate protection against unfairness or favoritism should be invalidated and that the exercise of the police power by the Legislature must be clearly defined and limited in scope so that nothing is left to unbridled discretion or whim of the administrative agency responsible for enforcement of the act. See also Delta Truck Brokers, Inc. v. King, 142 So.2d 273 (Fla.1962).

Appellants submit that there are no guidelines enunciated in the statute as to whether, inter alia, the average nursing home should be rated “A,” “B” or “C,” whether only a very few homes should be able to attain an “AA” rating, or whether there will be a Bell curve or flat percentage of homes in each group.

Without objective guidelines for the rating of licensed nursing homes as “AA,” “A,” “B,” “C” and “F,” the rating system, as established in Section 400.23(3) and (4), cannot withstand constitutional attack.

Since we find that subsections (3) and (4) of Section 400.23, Florida Statutes (Supp.1976), are unconstitutional in that they constitute an unlawful delegation of authority, this Court must further determine whether these subsections are severa-ble from Section 400.23, Florida Statutes (Supp.1976), or whether the entire statutory section must fall. The mere fact that the act does not contain a severability clause does not mandate a determination that the entire statutory provision should be condemned. State ex rel. Limpus v. Newell, 85 So.2d 124 (Fla.1956). If an unconstitutional portion of an act can be logically excised from the remaining valid provisions without doing violence to the legislative purpose expressed in the valid portions, if such legislative purpose can be accomplished independently of the invalid provisions, if the act is complete in itself after striking the invalid provisions, and if the valid and invalid provisions are not so inseparable that the Legislature would not have enacted the one without the other, it is the duty of the Court to give effect to that portion of the statute which is not constitutionally infirm. Presbyterian Homes of Synod of Florida v. Wood, 297 So.2d 556 (Fla.1974); Small v. Sun Oil Company, 222 So.2d 196 (Fla.1969); Cramp v. Board of Public Instruction of Orange County, 137 So.2d 828 (Fla.1962).

Obviously, the intent and purpose of the Legislature in enacting Section 400.-23, Florida Statutes (Supp.1976), was that reasonable and fair minimum standards be established by which a reasonable and consistent quality of patient care, including safe and sanitary conditions by nursing homes, would be insured. This purpose may be accomplished independently of the rating system set out in subsections (3) and (4). The deletion of the language pertaining to the rating of the nursing homes as “AA,” “A," “B,” “C” and “F” does not disturb the valid portions of the act and leaves intact a workable statute. The valid provisions standing alone are complete in themselves. Undoubtedly, the Legislature would have enacted into law the valid subsections regardless of those subsections which we have herein determined to- be invalid.

Accordingly, we find that subsections (3) and (4) constitute an unlawful delegation of legislative authority and that these subsections may be eliminated without striking down Section 400.23, Florida Statutes (Supp.1976), in its entirety. The constitutionality vel non of the rating system in subsections (3) and (4) being the only issue raised on appeal sub judice, we reverse the summary judgment of the trial court only insofar as it finds that the rating system is constitutional.

It is so ordered.

OVERTON, C. J., and ADKINS and SUNDBERG, JJ., concur.

ENGLAND, J., concurs in result only.

BOYD and HATCHETT, JJ., dissent.

      . After oral argument of this cause, pending disposition by this Court, the Florida Legislature enacted Ch. 77-401, Laws of Florida, with an effective date of July 1, 1977. Ch. 77 — 401, Laws of Florida, amends subsection 3 of § 400.23, Fla.Stat. (Supp.1976), to change January 1, 1977, to July 1, 1978, and March 1, 1977, to March 1, 1979.


text:
    STATE of Florida ex rel. Archie McCRIMMON et al., Relators, v. M. Ignatius LESTER et al., Respondents.
    No. 52738.
    Supreme Court of Florida.
    Dec. 23, 1977.
    Rehearing Denied Feb. 22, 1978.

      Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, Miami, for relators.
    Jeff D. Gautier, State Atty., and William Kuypers, Chief Asst. State’s Atty., Key West, for respondents.
   ENGLAND, Justice.

By petition for a writ of mandamus, we are presented with two interrelated questions affecting indigent criminal defendants and the costs of their defense. Relators are indigent defendants represented by the public defender’s office in criminal cases which were docketed for trial in November before respondents, judges in the Sixteenth Judicial Circuit (Monroe County).

In November 1976, respondents issued an administrative order requiring court, or court executive, approval of all applications for payment of court reporters’ fees incident to the taking of depositions. In March 1977, the court executive indicated by memorandum that copies of all depositions furnished to the public defender must be charged to ’that office rather than to the county.

Facing November trials, relators filed motions to obtain court reporter services for discovery depositions, for continuances of the November trials not to be charged against them as a waiver of speedy trial rights, and for other relief. They alleged, collectively, that their 33 cases require the taking of 216 depositions of individuals named on the state’s witness lists, and that these cases cannot be properly prepared for trial without the depositions. They further alleged that without copies of depositions they would be denied the effective assistance of counsel, yet the office of the public defender has no funds budgeted or appropriated to purchase such copies. Finally, they alleged that there are substantial delays in obtaining the services of official court reporters in Monroe County, who provide services only on a “time available basis” by order of the circuit court, and that without the requested continuances they would effectively, be deprived of their right to a speedy trial.

On October 26,1977, respondent Chappell entered an order authorizing the public defender to employ private court reporters at county expense for the taking of discovery depositions, but he refused to allow the cost of copies to be charged to the county. He also denied the request for non-waiver continuances. On October 27, an affidavit was filed by the deputy public defender stating that the only two private court reporting firms in Key West were unwilling to render any services to the public defender because the office was unable to purchase copies of depositions.

Relators filed for emergency relief in this Court alleging that they are confronted with a “Hobson’s choice” of having to go to trial without adequate preparation or being forced to waive their speedy trial rights. We issued an alternative writ directing respondents to show cause why mandamus should not be issued as requested. As we view the dilemma in Key West, there are two distinguishable issues to be addressed— the right of indigent defendants to be furnished copies of discovery depositions at county expense, and entitlement to continuances without forfeiture of the right to a discharge under our speedy trial rule where trial preparation is impeded by practical limitations on discovery opportunities.

Relators assert a right to discovery deposition copies at county expense under Florida Rule of Criminal Procedure 3.220(k), which provides:

“After a defendant is adjudged insolvent, the reasonable costs incurred in the operation of these rules shall be taxed as costs against the county.”

Relators argue that depositions are essential to the effective assistance of counsel and the right to confront witnesses guaranteed by the Sixth Amendment. Respondents answer that there is no authority for imposing the costs of copies on the county, and that in any event the effect of refusing to furnish free copies to the public defender is harmless since the originals of all depositions are available in the court’s files. We agree with respondents that existing statutes and court rules do not authorize taxing the cost of all deposition copies to a county.

In the present case, respondents attempted to assure relators that prompt discovery would be available to them by requiring the county to bear the cost of transcribing required depositions. Though their effort may have failed because the private court reporters in Key West refuse to provide services unless deposition copies are purchased, the services of official court reporters are available to provide adequate discovery. Whether private reporters recant or delayed official reporting is utilized, original depositions will be available in the court file for trial preparation, and even though the public defender will suffer some inconvenience in not having individual copies of the depositions at his office, we reject the suggestion that relators are for that reason denied the effective assistance of counsel.

The more difficult issue is whether the right to a speedy trial under Florida Rule of Criminal Procedure 3.191 is forcibly “waived” by the necessity of having to await official reporting services not now available in Key West. Relators argue that they should not be forced to sacrifice the possibility of a speedy trial discharge when the continuance they have requested is necessary to protect another fundamental right — the effective assistance of counsel. We hold, however, that the right must be relinquished so long as relators insist on reporter-transcribed deposition discovery for the preparation of their defenses.

Under Rule 3.191(a)(1), a person charged with a crime and continuously available for trial is entitled to be discharged, without demand, if not brought to trial within 90 or 180 days (depending on the crime charged) of being taken into custody. Under Rule 3.191(d)(2)(iii), these time limits may be extended by the court if the accused shows good cause — that is, asks for a waiver. Re-lators sought trial continuances which would not waive the time limits for discharge in Rule 3.191(a)(1). When their conditional request was denied they did not lose their speedy trial rights at the expense of effective legal representation. First, they can pursue discovery by means other than reporter-transcribed depositions. Second, even if they may be forced to relinquish a 90 or 180 day automatic discharge by insisting on that means of discovery, they may still accelerate their trials by making a demand for trial as soon as their preparation for trial is complete. See Fla.R.Crim.P. 3.191(a)(2); State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); State ex rel. Gadson v. Tyson, 334 So.2d 56 (Fla. 4th DCA 1976); Coppola v. State, 318 So.2d 181 (Fla. 2d DCA 1975).

As regards the refusal of the private court reporters in Key West to provide reporting services to the public defender, we must recognize that their court reporting is a private business activity uncontrolled by the state, and that these reporters have the same right to condition or withhold their services as any other entrepreneur. Until their status is validly changed by law, customers to whom they refuse their services will either have to rely on “official” court reporters or devise alternate means for conducting discovery.

There being no legal basis for the relief sought, the emergency alternative writ of mandamus which we entered on November 17, 1977, is dissolved, and the petition for writ of mandamus is hereby denied.

It is so ordered.

OVERTON, C. J., and BOYD, HATCH-ETT and KARL, JJ., concur.'

      . Cf. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

      . We recognize, of course, that copy costs may be taxed to a county in specific cases when, upon application, a trial judge approves the taxation based on express finding that transcription copies are necessary for trial.

      . State ex rel. Johnson v, Edwards, 233 So.2d 393, 395-96 (Fla.1970).

      . Had relators sought continuances on the basis of an inadequate opportunity for discovery under Rule 3.191 (d)(2)(iii) and agreed to waive the time limits for discharge, we have no reason to assume that their requests would have been denied. See Fla.R.Crim.P. 3.190(g)(2) and 3.220(d).

      . Electronic means of recording have been approved by this Court and are, of course, available to the public defender’s office in Key West upon request. See Fla.R.Civ.P. 1.310(b)(4), as amended in In re The Florida Bar, 265 So.2d 21, 28 (Fla.1972), and in In re The Florida Bar, Rules of Civil Procedure, 339 So.2d 626, 628 (Fla.1976).


text:
    Sandra J. LOSCO, Appellant, v. James R. LOSCO, Appellee.
    No. BB-274.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1977.
    Gerald R. Power, Jacksonville, for appellant.
    S. Gordon Blalock of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for appel-lee.
   PER CURIAM.

By this appeal from a final judgment of dissolution of marriage, the wife’s sole complaint is that the trial judge erred by only awarding her the sum of $37.50 per week rehabilitative alimony for one year. We agree and reverse.

The record reflects that this marriage of 20 years produced three children, one child having attained the age of majority since the trial of the cause. The husband is a skilled plumber and, during the three years prior to dissolution, earned in excess of $20,000 per year. At the time of the marriage, the wife was 15 years old, did not work outside of the home during the marital period, and thus had not attained any skills in the marketplace. An equitable division of the material assets accumulated during the marriage was entered by the trial judge which left each of the marital parties with approximately $20,000 cash. The wife was awarded possession of the marital home (with the privilege of paying the mortgage payments) until the youngest minor child attained majority or until the wife remarried. Child support in the sum of $50.00 per week for each child was directed to be paid by the husband.

The wife, who possessed no marketable skills at the time of dissolution, was confronted with expending a substantial portion of her share of the assets accumulated by the marital partners during their 20-year venture in pursuing educational opportunities to attain the necessary skills to enter the marketplace. Such skills were possessed and pursued by the husband during the marital venture.

Taking these factors into consideration, the cause is reversed with directions that the judgment appealed be amended to direct the husband to pay $37.50 per week rehabilitative alimony to the wife for a period of two years from the 23rd day of February, 1976, that being the date of the final judgment.

McCORD, C. J., and RAWLS and SMITH, JJ., concur.

      . Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974).